BILL REQ. #:  S-3939.1 

Read first time 01/19/12.   Referred to Committee on Economic Development, Trade & Innovation.

     AN ACT Relating to modifying provisions related to the office of regulatory assistance; amending RCW 43.42.010, 43.42.050, 43.42.070, and 43.42.095; and reenacting and amending RCW 43.42.060.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 43.42.010 and 2011 c 149 s 2 are each amended to read as follows:
     (1) The office of regulatory assistance is created in the office of financial management and must be administered by the office of the governor to help improve the regulatory system and assist citizens, businesses, and project proponents.
     (2) The governor must appoint a director. The director may employ a deputy director and a confidential secretary and such staff as are necessary, or contract with another state agency pursuant to chapter 39.34 RCW for support in carrying out the purposes of this chapter.
     (3) The office must offer to:
     (a) Act as the central point of contact for the project proponent in communicating about defined issues;
     (b) Conduct project scoping as provided in RCW 43.42.050;
     (c) Verify that the project proponent has all the information needed to correctly apply for all necessary permits;
     (d) Provide general coordination services;
     (e) Coordinate the efficient completion among participating agencies of administrative procedures, such as collecting fees or providing public notice;
     (f) Maintain contact with the project proponent and the permit agencies to promote adherence to agreed schedules;
     (g) Assist in resolving any conflict or inconsistency among permit requirements and conditions;
     (h) Coordinate, to the extent practicable, with relevant federal permit agencies and tribal governments;
     (i) Facilitate meetings;
     (j) Manage a fully coordinated permit process, as provided in RCW 43.42.060; and
     (k) Help local jurisdictions comply with the requirements of chapter 36.70B RCW ((by providing information about best permitting practices methods to improve communication with, and solicit early involvement of, state agencies when needed; and
     (l) Maintain and furnish information as provided in RCW 43.42.040)).
     (4) The office must also:
     (a) Provide information to local jurisdictions about best permitting practices, methods to improve communication with, and solicit early involvement of, state agencies when needed, and effective means of assessing and communicating expected project timelines and costs;
     (b) Maintain and furnish information as provided in RCW 43.42.040; and
     (c) Provide the following by September 1, 2009, and biennially thereafter, to the governor and the appropriate committees of the legislature:
     (((a))) (i) A performance report including:
     (((i))) (A) Information regarding use of the office's voluntary cost-reimbursement services as provided in RCW 43.42.070;
     (((ii))) (B) The number and type of projects or initiatives where the office provided services ((and the resolution provided by the office on any conflicts that arose on such projects;
     (iii) The agencies involved on specific projects;
     (iv) Specific information on any difficulty encountered in provision of services, implementation of programs or processes, or use of tools; and
     (v) Trend reporting that allows comparisons between statements of goals and performance targets and the achievement of those goals and targets; and
     (b) Recommendations on system improvements including recommendations regarding:
     (i) Measurement of overall system performance;
     (ii) Changes needed to make cost reimbursement, a fully coordinated permit process, multiagency permitting teams, and other processes effective; and
     (iii) Resolving any conflicts or inconsistencies arising from differing statutory or regulatory authorities, roles and missions of agencies, timing and sequencing of permitting and procedural requirements as identified by the office in the course of its duties)) including the key agencies with which the office partnered;
     (C) Specific information on any difficulty encountered in providing services or implementing programs, processes, or assistance tools; and
     (D) Trend reporting that allows comparisons between statements of goals and performance targets and the achievement of those goals and targets; and
     (ii) Recommendations on system improvements including, but not limited to, recommendations on improving environmental permitting.

Sec. 2   RCW 43.42.050 and 2009 c 97 s 5 are each amended to read as follows:
     (1) Upon request of a project proponent, the office ((shall)) must determine the level of project scoping needed by the project proponent, taking into consideration the complexity of the project and the experience of those expected to be involved in the project application and review process. The director may require the attendance at a scoping meeting of any state or local agency.
     (2) Project scoping ((shall)) must consider the complexity, size, and needs for assistance of the project and ((shall)) must address as appropriate:
     (a) The permits that are required for the project;
     (b) The permit application forms and other application requirements of the participating permit agencies;
     (c) The specific information needs and issues of concern of each participant and their significance;     
     (d) Any statutory or regulatory conflicts that might arise from the differing authorities and roles of the permit agencies;
     (e) Any natural resources, including federal or state listed species, that might be adversely affected by the project and might cause an alteration of the project or require mitigation; and
     (f) The anticipated time required for permit decisions by each participating permit agency, including the estimated time required to determine if the permit application is complete, to conduct environmental review, and to review and process the application. In determining the estimated time required, full consideration must be given to achieving the greatest possible efficiencies through any concurrent studies and any consolidated applications, hearings, and comment periods.
     (3) The outcome of the project scoping ((shall)) must be documented in writing, furnished to the project proponent, and be made available to the public.
     (4) The project scoping ((shall)) must be completed prior to the passage of sixty days of the project proponent's request for a project scoping unless the director finds that better results can be obtained by delaying the project scoping meeting or meetings to ensure full participation.
     (5) Upon completion of the project scoping, the participating permit agencies ((shall)) must proceed under their respective authorities. The agencies may remain in communication with the office as needed.
     (6) This section does not create an independent cause of action, affect any existing cause of action, or establish time limits for purposes of RCW 64.40.020.

Sec. 3   RCW 43.42.060 and 2009 c 421 s 8 and 2009 c 97 s 6 are each reenacted and amended to read as follows:
     (1) A project proponent may submit a written request to the director of the office for participation in a fully coordinated permit process. Designation as a fully coordinated project requires that:
     (a) The project proponent enters into a cost-reimbursement agreement pursuant to RCW 43.42.070;
     (b) The project has a designation under chapter 43.157 RCW; or
     (c) The director determine that (i)(A) the project raises complex coordination, permit processing, or substantive permit review issues; or (B) if completed, the project would provide substantial benefits to the state; and (ii) the office, as well as the participating permit review agencies, have sufficient capacity within existing resources to undertake the full coordination process without reimbursement and without seriously affecting other services.
     (2) A project proponent who requests designation as a fully coordinated permit process project must provide the office with a full description of the project. The office may request any information from the project proponent that is necessary to make the designation under this section, and may convene a scoping meeting or a work plan meeting of the likely participating permit agencies.
     (3) When a project is designated for the fully coordinated permit process, the office ((shall)) must serve as the main point of contact for the project proponent and participating agencies with regard to the permit process for the project as a whole. Each participating agency must designate a single point of contact for coordinating with the office. The office ((shall)) must keep an up-to-date project management log and schedule illustrating required procedural steps in the permitting process, and highlighting substantive issues as appropriate that must be resolved in order for the project to move forward. In carrying out these responsibilities, the office ((shall)) must:
     (a) Ensure that the project proponent has been informed of all the information needed to apply for the permits that are included in the coordinated permit process;
     (b) Coordinate the timing of review for those permits by the respective participating permit agencies;
     (c) Facilitate communication between project proponents, consultants, and agency staff to promote timely permit decisions;
     (d) Assist in resolving any conflict or inconsistency among the permit requirements and conditions that are expected to be imposed by the participating permit agencies; and
     (e) Make contact, at least once, with any local, tribal, or federal jurisdiction that is responsible for issuing a permit for the project and invite them to participate in the coordinated permit process or to receive periodic updates in the project.
     (4) Within thirty days, or longer with agreement of the project proponent, of the date that the office designates a project for the fully coordinated permit process, it shall convene a work plan meeting with the project proponent and the participating permit agencies to develop a coordinated permit process schedule. The meeting agenda ((shall)) may include ((at least)) any of the following:
     (a) Review of the permits that are required for the project;
     (b) A review of the permit application forms and other application requirements of the agencies that are participating in the coordinated permit process;
     (c) An estimation of the timelines that will be used by each participating permit agency to make permit decisions, including the estimated time periods required to determine if the permit applications are complete and to review or respond to each application or submittal of new information.
     (i) The estimation must also include the estimated number of revision cycles for the project, or the typical number of revision cycles for projects of similar size and complexity.
     (ii) In the development of this timeline, full attention ((shall)) must be given to achieving the maximum efficiencies possible through concurrent studies and consolidated applications, hearings, and comment periods.
     (iii) Estimated action or response times for activities of the office that are required before or trigger further action by a participant must also be included;
     (d) Available information regarding the timing of any public hearings that are required to issue permits for the project and a determination of the feasibility of coordinating or consolidating any of those required public hearings; and
     (e) A discussion of fee arrangements for the coordinated permit process, including an estimate of the costs allowed by statute, any reimbursable agency costs, and billing schedules, if applicable.
     (5) Each agency ((shall)) must send at least one representative qualified to discuss the applicability and timelines associated with all permits administered by that agency or jurisdiction. At the request of the project proponent, the office ((shall)) must notify any relevant local or federal agency or federally recognized Indian tribe of the date of the meeting and invite that agency's participation in the process.
     (6) Any accelerated time period for the consideration of a permit application ((shall)) must be consistent with any statute, rule, or regulation, or adopted state policy, standard, or guideline that requires the participation of other agencies, federally recognized Indian tribes, or interested persons in the application process.
     (7) If a permit agency or the project proponent foresees, at any time, that it will be unable to meet the estimated timelines or other obligations under the agreement, it ((shall)) must notify the office of the reasons for the problem and offer potential solutions or an amended timeline for resolving the problem. The office ((shall)) must notify the participating permit agencies and the project proponent and, upon agreement of all parties, adjust the schedule, or, if necessary, schedule another work plan meeting.
     (8) The project proponent may withdraw from the coordinated permit process by submitting to the office a written request that the process be terminated. Upon receipt of the request, the office ((shall)) must notify each participating permit agency that a coordinated permit process is no longer applicable to the project.

Sec. 4   RCW 43.42.070 and 2010 c 162 s 4 are each amended to read as follows:
     (1) The office may enter into cost-reimbursement agreements with a project proponent to recover from the project proponent the reasonable costs incurred by the office in carrying out the provisions of RCW 43.42.050, 43.42.060, 43.42.090, and 43.42.092. The agreement must include the permit agencies that are participating in the cost-reimbursement project and carrying out permit processing or project review tasks referenced in the agreement.
     (2) The office must maintain policies or guidelines for coordinating cost-reimbursement agreements with participating agencies, project proponents, and outside independent consultants. Policies or guidelines must ensure that, in developing cost-reimbursement agreements, conflicts of interest are eliminated. ((Contracts with independent consultants hired by the office under this section must be based on competitive bids that are awarded for each agreement from a prequalified consultant roster.))
     (3) For fully coordinated permit processes, the office must coordinate the negotiation of all cost-reimbursement agreements executed under RCW 43.21A.690, 43.30.490, 43.70.630, 43.300.080, and 70.94.085. The office, project proponent, and the permit agencies must be signatories to the agreement or agreements. Each permit agency must manage performance of its portion of the agreement. Independent consultants hired under a cost-reimbursement agreement shall report directly to the hiring office or permit agency. Any cost-reimbursement agreement must require that final decisions are made by the permit agency and not by a hired consultant.
     (4) For ((a fully coordinated)) any project using cost reimbursement, the ((office and participating permit agencies must include a cost-reimbursement work plan, including deliverables and schedules for invoicing and reimbursement in the fully coordinated project work plan described in RCW 43.42.060. Upon request, the office must verify that the agencies have met the obligations contained in the cost-reimbursement work plan and agreement. The cost-reimbursement agreement must identify the tasks of each agency and the maximum costs for work conducted under the agreement. The agreement must include a schedule that states:
     (a) The estimated number of weeks for initial review of the permit application for comparable projects;
     (b) The anticipated number of revision cycles;
     (c) The estimated number of weeks for review of subsequent revision submittals;
     (d) The estimated number of billable hours of employee time;
     (e) The rate per hour; and
     (f) A process for revision of the agreement if necessary.
     (5) If a permit agency or the project proponent foresees, at any time, that it will be unable to meet its obligations under the cost-reimbursement agreement and fully coordinated project work plan, it must notify the office and state the reasons, along with proposals for resolving the problems and potentially amending the timelines. The office must notify the participating permit agencies and the project proponent and, upon agreement of all parties, adjust the schedule, or, if necessary, coordinate revision of the cost-reimbursement agreement and fully coordinated project work plan)) agreement must require the office, the project proponent, and participating agencies to develop and regularly update a project work plan that the office must post online. The agreement may include deliverables and schedules for invoicing and reimbursement. Reasonable costs must be determined based on time and materials estimates or may be set as a flat fee tied to estimates of staff hours required. The office may require advance payment to be held in reserve and distributed to agencies and the office upon approval of invoices by the project proponent. Each participating agency must agree to give priority to the cost-reimbursement project but may in no way reduce or eliminate regulatory requirements. Upon request, the office must verify that the agencies have met the obligations contained in the project work plan and agreement. The cost-reimbursement agreement must identify the known tasks of each party to the agreement and the maximum costs for work conducted under the agreement.
     (5) If a party to the agreement foresees, at any time, that it will be unable to meet its obligations under the cost-reimbursement agreement, it must notify the office and state the reasons, along with proposals for resolving the problems. The office must notify the other parties and work to resolve the issues, which may include adjustments to invoices, deliverables, and the project work plan.

Sec. 5   RCW 43.42.095 and 2010 c 162 s 5 are each amended to read as follows:
     The multiagency permitting team account is created in the state treasury. All receipts from solicitations authorized in RCW 43.42.092 must be deposited into the account. Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for covering the ((initial)) staffing and other administrative costs of multiagency permitting teams and such other costs associated with the teams as may arise that are not recoverable through cost-reimbursement or cost-sharing mechanisms.