State of Washington | 63rd Legislature | 2013 Regular Session |
READ FIRST TIME 04/03/13.
AN ACT Relating to permitting certain transportation projects; and adding a new chapter to Title 47 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 It is the intent of the legislature to
achieve transportation regulatory reform that expedites the delivery of
transportation projects through a streamlined approach to environmental
decision making. The department of transportation should work
cooperatively and proactively with state regulatory and natural
resource agencies, public and private sector interests, and Indian
tribes to avoid project delays. The department and state regulatory
and natural resource agencies should continue to implement and improve
upon the successful policies, guidance, tools, and procedures that were
created as a result of transportation permit efficiency and
accountability committee efforts. The department should expedite
project delivery and routine maintenance activities through the use of
programmatic agreements and permits where possible and seek new
opportunities to eliminate duplicative processes.
NEW SECTION. Sec. 2 (1)(a) The legislature recognizes the
opportunity to gain efficiencies by reducing duplication between
national and state environmental policy act compliance for state
transportation projects.
(b) The department of ecology is directed to update the rules in
WAC 197-11-610 for integrating use of national environmental policy act
documents in decisions under chapter 43.21C RCW.
(2)(a) The legislature finds that rule-based categorical exemptions
to chapter 43.21C RCW applying to transportation maintenance activities
have not been updated in recent years.
(b) The department of ecology is directed to update, but not
decrease, the rule-based categorical exemptions for transportation
maintenance activities in WAC 197-11-800 and 197-11-860.
NEW SECTION. Sec. 3 The department must use the following
expedited environmental review and approval process for any
transportation project requiring the preparation of an environmental
impact statement under the national environmental policy act (42 U.S.C.
Sec. 4321 et seq.). State and local agencies with relevant
jurisdiction, to the extent practicable and appropriate, as determined
by the agencies, must provide technical assistance to the department on
accomplishing the project review and coordination activities described
in this section.
(1) Step 1: Public and agency involvement in defining the project
purpose and scope of environmental review. The department must provide
notice to the public that environmental review for the project is being
initiated. This notice must reference the notice of intent under the
national environmental policy act and explain that this replaces the
need for a threshold determination under chapter 43.21C RCW. The
department must invite the public, agencies, and tribes to provide
input on the project purpose and scope of environmental review. The
department must provide a thirty-day comment period. The department
may hold one or more meetings to collect input. The department must
complete step 1 by: (a) Providing a summary of the results of step 1,
including a statement that the department considers step 1 to be
complete; and (b) making the summary available to the public. The
department must consider the input from the public, agencies, and
tribes before finalizing the project purpose and scope of environmental
review.
(2) Step 2: Identify participating agencies and convene meetings
with an interdisciplinary team.
(a) The department must identify any federal, state, tribal,
regional, and local governmental agencies that may have an interest in
the project. The department must invite these agencies to serve as
participating agencies. The roles and responsibilities of
participating agencies include, but are not limited to, identifying
potential environmental or socioeconomic impacts that could
substantially delay or prevent an agency from granting a permit or
other approval that is needed for the project. Participating agencies
must provide input to the department as the department develops: The
scope of environmental analysis, a purpose and need statement, a range
of alternatives, methodologies, and the level of detail for the
analysis of alternatives. Designation as a participating agency does
not indicate project support, but it does give invited agencies
opportunities to provide input at key decision points in the process.
(b) The department must form an interdisciplinary team composed of
participating agency staff and key technical specialists from the
department. Participating agencies must identify key technical or
regulatory experts to participate on the project interdisciplinary
team. The department must convene at least one meeting with the
interdisciplinary team at each of the subsequent steps in order to
collaborate on project decisions and milestones.
(3) Step 3: Participating agency involvement during the screening
of alternatives.
(a) The department must initiate step 3 by providing notice to
participating agencies that the screening of project alternatives has
begun. Within thirty days of receiving notification, participating
state, county, and city agencies must, and federal agencies are
encouraged to, identify:
(i) For each identified alternative: (A) The specific features
that the agency considers significant with respect to the agency's role
in environmental reviews, permits, or other approvals for the project;
(B) the reasons these features are significant; and (C) any concerns
the agency may have about the alternative because of potential
significant adverse impacts of these features on resources or social
policies within the agency's jurisdiction;
(ii) For each feature for which the agency raises concerns: (A)
Recommendations on how the potential adverse impacts could be avoided,
minimized, and mitigated; and (B) an assessment of the relative ranking
of each alternative with respect to whether and to what extent these
concerns apply; and
(iii) Other information the participating agency requests the
department to consider in deciding whether, when, where, or how to
proceed with the project.
(b) The department must consider the input from the participating
agencies prior to selecting a preferred project alternative.
(4) Step 4: Participating agency involvement during the
identification of environmental permits and approvals, application
procedures, and decision standards.
(a) The department, in consultation with the participating
agencies, must identify all permits and other approvals the agencies
might require for each project alternative.
(b) After consulting with all participating agencies, the
department must complete step 4 by compiling a list of all
environmental permits and approvals it believes are needed for the
project under each alternative being considered.
(5) Step 5: Complete an environmental analysis and issue a draft
environmental impact statement. The department must initiate step 5 by
providing notice of the availability of the draft environmental impact
statement to participating agencies, tribal governments, and the
public. Notification must include posting on the state environmental
policy act register. State, county, and city agencies must, and
federal agencies are encouraged to, provide written comments on the
draft environmental impact statement no later than forty-five days
after the department posts notice in the state environmental policy act
register.
(6) Step 6: Develop a final environmental impact statement. The
department must work with the federal lead agency to consider and
respond to all substantive comments received during the comment period.
The department must evaluate public and agency comments on the draft
environmental impact statement to determine if the statement
sufficiently identifies and analyzes the impacts and mitigation of the
proposed action. The department must engage participating agencies in
refining alternatives and completing the environmental review.
(7) Step 7: Issue a final environmental impact statement. The
final environmental impact statement must contain: The department's
final recommendation and preferred alternative, a summary of the
comments received on the draft environmental impact statement and the
response, and a description of the procedures required to ensure that
mitigation measures are implemented. The department must provide
notice of the final environmental impact statement and the federal lead
agency's record of decision in the state environmental policy act
register.
NEW SECTION. Sec. 4 (1) The legislature recognizes the value
that tribal governments provide in the review of transportation
projects. The legislature expects the department to continue its
efforts to provide consistent consultation and communication during the
environmental review of proposed transportation projects.
(2) For projects described in section 3 of this act, the department
must invite affected tribes to be participating agencies. If tribal
governments elect not to participate, the department must make a
reasonable effort to: Meet with representatives of affected tribes to
review broad issues during scoping, engage in both formal and technical
consultation with tribal staff, and seek to resolve issues in parallel
with project planning and permitting activities.
NEW SECTION. Sec. 5 The department must streamline the
permitting process by developing and maintaining positive relationships
with the regulatory agencies and the Indian tribes. The department can
reduce the time it takes to obtain permits by incorporating impact
avoidance and minimization measures into project design and by
developing complete permit applications. To streamline the permitting
process, the department must:
(1) Continue a multiagency permit program consisting of appropriate
regulatory agency staff with oversight and management from the
department.
(a) The multiagency permit program must provide early project
coordination, expedited project review, project status updates,
technical and regulatory guidance, and construction support to ensure
compliance.
(b) The multiagency permit program staff must assist department
project teams with developing complete biological assessments and
permit applications, provide suggestions for how the project can avoid
and minimize impacts, and provide input regarding mitigation for
unavoidable impacts;
(2) Establish, implement, and maintain programmatic agreements and
permits with federal and state agencies to expedite the process of
ensuring compliance with the endangered species act, section 106 of the
national historic preservation act, hydraulic project approvals, the
clean water act, and other federal acts as appropriate;
(3) Collaborate with permitting staff from the United States army
corps of engineers, Seattle district, department of ecology, and
department of fish and wildlife to develop, implement, and maintain
complete permit application guidance. The guidance must identify the
information that is required for agencies to consider a permit
application complete; and
(4) Perform internal quality assurance and quality control to
ensure that permit applications are complete before submitting them to
the regulatory agencies.
NEW SECTION. Sec. 6 The legislature finds that an essential
component of streamlined permit decision making is the ability of the
department to demonstrate the capacity to meet environmental
responsibilities. Therefore, the legislature directs that:
(1) Qualified environmental staff within the department must
supervise the development of all environmental documentation in
accordance with the department's project delivery tools;
(2) The department must conduct special prebid meetings for
projects that are environmentally complex. In addition, the department
must review environmental requirements related to these projects during
the preconstruction meeting held with the contractor who is awarded the
bid;
(3) Environmental staff at the department, or consultant staff
hired directly by the department, must conduct field inspections to
ensure that project activities comply with permit conditions and
environmental commitments. These inspectors:
(a) Must notify the department's project engineer when compliance
with permit conditions or environmental regulations are not being met;
and
(b) Must immediately notify the regulatory agencies with
jurisdiction over the nonconforming work; and
(4) When a project is not complying with a permit or environmental
regulation, the project engineer must immediately order the contractor
to stop all nonconforming work and implement measures necessary to
bring the project into compliance with permits and regulations.
NEW SECTION. Sec. 7 The legislature expects the department to
continue its efforts to improve training and compliance. The
department must:
(1) Provide training in environmental procedures and permit
requirements for those responsible for project delivery activities;
(2) Require wetland mitigation sites to be designed by qualified
technical specialists that meet training requirements developed by the
department in consultation with the department of ecology.
Environmental mitigation site improvements must have oversight by
environmental staff;
(3) Develop, implement, and maintain an environmental compliance
data system to track permit conditions, environmental commitments, and
violations;
(4) Continue to implement the environmental compliance assurance
procedure to ensure that appropriate agencies are notified and that
action is taken to remedy noncompliant work as soon as possible. When
work occurs that does not comply with environmental permits or
regulations, the project engineer must document the lessons learned to
make other project teams within the department aware of the violation
to prevent reoccurrence; and
(5) Provide an annual report summarizing violations of
environmental permits and regulations to the department of ecology and
the legislature on March 1st of each year for violations occurring
during the preceding year.
NEW SECTION. Sec. 8 The legislature finds that local land use
reviews under chapter 90.58 RCW need to be harmonized with the
efficient accomplishment of necessary maintenance and improvement to
state transportation facilities. Local land use review procedures are
highly variable and pose distinct challenges for linear facility
maintenance and improvement projects sponsored by the department. In
particular, clearer procedures for local permitting under chapter 90.58
RCW are needed to meet the objectives of chapter 36.70A RCW regarding
department facilities designated as essential public facilities.
Therefore, the legislature directs that:
(1) The department of ecology must convene a work group including
the department and local governments to identify procedures to more
effectively achieve the objectives of this section.
(2) The work group is tasked with identifying procedures that
effectively and efficiently address policy objectives of local
shoreline master programs, while avoiding unnecessary time delay and
expense for state transportation facility maintenance and improvement.
(3) The work group must consider the widely varying scale and scope
of department facility maintenance and improvement projects in
identifying appropriate shoreline review procedures.
(4) By December 1, 2013, the department of ecology must provide a
report on the outcome of the work group to the appropriate committees
of the legislature.
NEW SECTION. Sec. 9 Nothing in this chapter may be interpreted
to create a private right of action or right of review. Judicial
review of the department's environmental review is limited to that
available under chapter 43.21C RCW or applicable federal law.
NEW SECTION. Sec. 10 Sections 1 through 9 of this act constitute
a new chapter in Title 47 RCW.