BILL REQ. #:  H-1701.1 

Read first time 03/06/13.   Referred to Committee on Transportation.

     AN ACT Relating to permitting certain transportation projects; adding a new chapter to Title 47 RCW; and declaring an emergency.

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 permit reform that expedites the delivery of transportation projects through a streamlined approach to environmental permit decision making. To optimize the limited resources available for transportation system improvements and environmental protection, state regulatory and natural resources agencies, public and private sector interests, Indian tribes, and the department of transportation should work cooperatively to establish common goals, minimize project delays, develop consistency in the application of environmental standards, maximize environmental benefits through coordinated investment strategies, and eliminate duplicative processes through assigned responsibilities of selected permit drafting and compliance activities between state and federal agencies. Therefore, a streamlined permitting process is created for large transportation projects.

NEW SECTION.  Sec. 2   The department must use the following permitting process for any transportation project of at least five million dollars:
     (1) Step 1: Conceptual description. The department must identify project purposes, the approximate project location or alternative locations, and the federal, state, and local agencies that might have the authority to review and approve the project or portions of it at any such locations, and must compile a preliminary interagency communication list identifying agencies that may be interested in the proposed project and, where known, contact persons in such agencies. If the department is going to proceed with step 2 or to abandon the project, it must complete step 1 by: (a) Providing a summary of the outcome to all agencies on the list; and (b) making the summary available to the public.
     (2) Step 2: Early involvement of other agencies. (a) At any time after completing step 1, the department must provide notice to all agencies on the interagency communication list and the public. Within thirty days, or a longer time if specified by the department, each state, local, and federal agency must be encouraged to identify:
     (i) A primary contact person to coordinate future communications with the department and other interested agencies regarding the project, or indicate that the agency has no interest in the project and need not remain on the interagency communication list;
     (ii) The agency's role with respect to the proposed project;
     (iii) Additional alternative locations the department should consider and the roles the agency would expect to have with the project at those locations;
     (iv) Other agencies the agency believes should be added to the list for the project; and
     (v) Other information the agency requests the department to consider.
     (b) After all state and local agencies on the interagency communication list have responded, or at least ten days after expiration of the specified response time, the department must complete step 2 by: (i) Proposing one or more conceptual designs for the project at a proposed location and any alternative locations then being considered; (ii) providing a summary of the results of step 2, including a statement that the department considers step 2 to be complete or complete except for specified issues remaining to be resolved with specified agencies, to all agencies on the interagency communication list; and (iii) making the summary available to the public.
     (3) Step 3: Identify environmental reviews, permits, and other approvals, application procedures, and decision standards. (a) At any time after completing step 2, the department must initiate step 3 by providing notice to all agencies on the interagency communication list and the public. This notice may include a threshold determination on whether an environmental impact statement or supplemental environmental impact statement will be prepared or an environmental checklist and a request for comments on what steps should be taken to comply with chapter 43.21C RCW. Within thirty days, or a longer time if specified by the department, each state, local, and federal agency must be encouraged to identify:
     (i) The procedures under which the agency expects environmental reviews of the project to occur;
     (ii) All permits and other approvals the agency might require for the project at each alternative location and conceptual design;
     (iii) What is needed for the department to file a complete application for each permit or other approval;
     (iv) The laws, rules, regulations, ordinances, and policies the agency would administer with respect to the project at each alternative location and conceptual design; and
     (v) Other information the agency requests the department to consider in deciding whether, when, where, or how to proceed with the project.
     (b) After all state and local agencies on the interagency communication list have responded, or at least ten days after expiration of the specified response time, the department must complete step 3 by:
     (i) Compiling a list of all environmental reviews, permits, and other approvals it believes are needed for the project under each alternative being considered;
     (ii) Providing all agencies on the interagency communication list a copy of the list compiled under (b)(i) of this subsection and a summary of the other results of step 3, including a statement that the department considers step 3 to be complete or complete except for specified issues remaining to be resolved with specified agencies; and
     (iii) Making the list compiled under (b)(i) of this subsection and summary available to the public.
     (c) The list compiled under (b)(i) of this subsection and summary provided under (b)(ii) of this subsection are presumed to accurately identify all environmental reviews, permits, and other approvals needed for each alternative described, what is required for applications to be considered complete, and the standards under which applications will be reviewed and approved, unless an aggrieved agency or person files objections within thirty days after the list and summary are distributed.
     (4) Step 4: Tentative selection of preferred alternative. (a) At any time after completing step 3, the department must initiate step 4 by providing notice to all agencies on the interagency communication list and the public. This notice may be accompanied by a scoping notice for an environmental impact statement or supplemental environmental impact statement or, if available, a draft environmental impact statement or supplemental environmental impact statement. This notice also may be accompanied by the department's preliminary analysis of the advantages and disadvantages of each identified alternative, or other information that may be helpful to other interested agencies and the public in identifying advantages and disadvantages. Within fourteen days, or a longer time if specified by the department, each state, local, and federal agency must be encouraged to identify:
     (i) For each identified alternative, the specific features the agency considers significant with respect to the agency's role in environmental reviews, permits, or other approvals for the project; the reasons these features are significant; and any concerns the agency may have about the alternative because of potential 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, recommendations on how the potential adverse impacts could be avoided, minimized, and mitigated;
     (iii) For each feature for which the agency raises concerns, an assessment of the relative ranking of each alternative with respect to whether and to what extent these concerns apply;
     (iv) Recommendations the agency may have as to which alternatives should be retained or dropped from further consideration, and ways in which alternatives might be modified or combined to address the agency's concerns, recognizing that final decisions can be made only through the applicable environmental review, permit, and other approval processes and that the agency making them is not bound with respect to any future decisions it may make regarding the project; and
     (v) Other information the agency requests the department to consider in deciding whether, when, where, or how to proceed with the project.
     (b) After all state and local agencies on the interagency communication list have responded, or at least ten days after expiration of the specified response time, the department must complete step 4 by:
     (i) Selecting a preferred alternative for purposes of all environmental reviews, permits, and other approvals needed for the project;
     (ii) Providing all agencies on the interagency communication list a description of the preferred alternative and summary of the other results of step 4, including a statement that the department considers step 4 to be complete or complete except for specified issues remaining to be resolved with specified agencies; and
     (iii) Making the preferred alternative and summary available to the public. The preferred alternative must be identified in all environmental reviews, permits, and other approvals needed for the project.
     (5) Step 5: Completing environmental reviews and applications for permits and other approvals. (a) At any time after completing step 4, the department must initiate step 5 by providing notice to all agencies on the interagency communication list and the public. A draft environmental impact statement or supplemental environmental impact statement, the department's draft plans and specifications for the project, and draft applications for some or all permits and other approvals may be provided with the notice or when they subsequently become available. Within thirty days, or a longer time if specified by the department, each state, local, and federal agency must be encouraged to identify:
     (i) All concerns the agency previously raised regarding the alternative, and other alternatives still under consideration, that have not been resolved to the agency's satisfaction;
     (ii) Additional concerns the agency may have, particularly concerns resulting from additional information about the project location and design, and other new information received since the completion of step 4;
     (iii) Additional environmental reviews, permits, or other approvals needed for the preferred alternative because of changes in laws, rules, regulations, or policies or changes in the project location or design since these issues were last reviewed in step 3 or 4;
     (iv) Changes in applicable requirements for complete applications for permits or other approvals under the agency's jurisdiction since these issues were last reviewed in step 3 or 4;
     (v) Other changes in applicable laws, rules, regulations, ordinances, or policies administered by the agency since these issues were last reviewed in step 3 or 4; and
     (vi) Whether a draft application proposed by the department for a permit or other approval from the agency is complete and, if not, what additional information or other changes are needed for the draft application to be complete.
     (b) When all state and local agencies on the interagency communication list have responded, or at least ten days after expiration of the specified response time, the department must complete step 5 by:
     (i) Completing some or all environmental review processes and draft application forms for permits and other approvals that it reasonably believes to be complete;
     (ii) Providing all agencies on the interagency communication list with environmental review and application documents and a summary of the other results of step 5, including a statement that the department considers step 5 to be complete or complete except for specified issues remaining to be resolved with specified agencies; and
     (iii) Making the completed environmental review documents and summary available to the public. The preferred alternative must be identified in all environmental reviews, permits, and other approvals needed for the project.
     (c) However, if an interested agency or aggrieved person files objections within fourteen days after the preferred alternative and summary are distributed, the objections must be addressed in subsequent environmental reviews and agency decisions regarding the project.
     (6) Step 6: Completing the environmental review, permit, and other approval processes. (a) At any time after completing step 5, the department must initiate step 6 by providing notice to all agencies on the interagency communication list and the public and filing applications for some or all permits and other approvals needed for the project. Within thirty days, or a longer time if specified by the department, each state, local, and federal agency must be encouraged to:
     (i) Acknowledge receipt of draft environmental review documents provided to the agency and to provide comments on them;
     (ii) Acknowledge receipt of final environmental review documents and determine that they are adequate for purposes of their roles regarding the project or specify what additional information or changes are needed for them to be considered adequate;
     (iii) Acknowledge receipt of each application filed with the agency and determine that the application is complete or specify what additional information or changes are needed for the application to be considered complete;
     (iv) Acknowledge that the applications submitted to the agency will be processed under the laws, rules, regulations, ordinances, and policies previously identified under steps 3, 4, and 5 or specify what changes have occurred in the governing standards that were in effect on the date a complete application was filed and, as a result, apply to the project;
     (v) Identify the significant steps necessary for the agency to reach a final decision on applications and the estimated time needed for each step; and
     (vi) Identify ways its decision-making process might be made more efficient and effective through additional coordination with other agencies, with any recommendations for such methods as joint solicitation and review of public comments and jointly conducting public hearings.
     (b) It is recognized that step 6 may require an iterative process with several drafts of various environmental review documents and applications being considered and revised, and that changes in project location or design resulting from the permit decisions of one agency may require revising applications or even reopening permit decisions of other agencies. All state and local agencies are expected, and federal agencies are encouraged, to communicate and cooperate to minimize the number of iterations required and make the process as efficient and effective as possible. Unless significant new information is obtained, decisions made under step 6 should not be reopened except at the request of the department, and the most recent information available under steps 3, 4, and 5 should be presumed accurate until significant new information becomes available.
     (c) If all environmental reviews have not been completed and all permits and other approvals obtained within forty-five days after step 6 are initiated, the department, by providing notice to all agencies on the interagency communication list and the public, may set a deadline for completing reviews and decisions. At any time after the deadline, the department may terminate the coordination process of this section as to some or all of the reviews and decisions that are still not completed.

NEW SECTION.  Sec. 3   (1) This section establishes procedures for city, town, and county governments to participate in the processes identified in this chapter to provide for coordinated, multijurisdictional environmental review and permitting decisions for transportation projects of at least five million dollars.
     (2) Each city, town, and county, within its boundaries is located or partially located one or more projects identified in subsection (1) of this section, must elect whether or not to participate in coordinated processes for environmental review and permitting of those projects as required in this chapter. If the city, town, or county elects to participate, it may do so as either a participating entity or as an assigning entity.
     (a) If a city, town, or county elects to be considered as a participating entity, the department must include a representative designated by the city, town, or county in the coordinated review of the project. The department must compensate the jurisdiction for technical support required for participation in the process. The jurisdiction is also eligible for reimbursement for permit fees set by local ordinances and other agreed upon costs associated with the issuance of project permits.
     (b) For the purposes of expediting the permit process, a city, town, or county may elect to assign its permit responsibilities under chapter 39.34 RCW to the department simultaneously with its notification to the department as specified in subsection (4) of this section. The city, town, or county electing to assign its responsibilities must enter into an agreement with the department to define the local permit requirements that must be met. Permits issued under the agreement are presumed to at least meet local environmental permit requirements. A city, town, or county choosing to use this option is eligible for a permit fee set by local ordinances associated with the issuance of the project permits.
     (3) If the city, town, or county elects not to participate in the coordinated processes for transportation projects of at least five million dollars, the department must issue the locally required permits, when allowable. The department must comply with all city, town, and county ordinances, and the department permit approval is presumed to at least meet the local environmental review and permit requirements.
     (4) Any city, town, or county must notify the department within sixty days of receipt of the department's notification of project designation, as to whether it elects to be considered as a participating entity or an assigning entity, or elects not to participate in the coordinated process provided in this chapter.
     (5) The department must review and evaluate the process by which local governments review and approve transportation projects of at least five million dollars, and must provide recommendations to the legislature, by January 1, 2014, to improve the coordination of the local process with state and federal reviews as part of the reports required under this chapter.
     (6) A city, town, or county is not liable for decisions made by the department that result in a failure to comply with city, town, or county ordinances except as provided in the interlocal agreements, and the department must defend and answer to any actions or complaints challenging the validity of permits issued under this section.

NEW SECTION.  Sec. 4   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 lead the development of all environmental documentation associated with department projects and permit activities 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 considerations related to these projects during the preconstruction meeting held with the contractor who is awarded the bid;
     (3) Environmental staff at the department must conduct field inspections to ensure that project activities are performed under permit conditions. These inspectors:
     (a) May issue stop work orders when compliance with permit standards are not being met; and
     (b) For this portion of their job duties, are accountable to the director of the department of ecology; and
     (4) Failure to comply with a stop work order may result in civil penalties being assessed against the department and individuals involved. Willful violation of a stop work notice issued by the department is subject to civil penalties assessed on the agency as well as the individuals involved. Persistent violations by the department may result in loss of permit drafting and program management responsibilities.

NEW SECTION.  Sec. 5   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 a qualified interdisciplinary team that meets 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 an environmental compliance data system to track all permit conditions;
     (4) Report all noncompliance activities to applicable agencies of jurisdiction along with a remedy plan;
     (5) Fund the departments of ecology, natural resources, and fish and wildlife operating under their permit-granting authority to conduct audits of the department's permit drafting and compliance activities. The department of ecology must collate the audits in an annual report to the legislature, beginning January 1, 2014;
     (6) Seek federal funding for dedicated technical staff at federal permit decision-making agencies and for state costs associated with implementation of this chapter;
     (7) Fund dedicated technical staff at federal permit decision-making entities, as appropriate, and the departments of ecology, natural resources, commerce, and fish and wildlife to implement the requirements of this chapter; and
     (8) Fund a technical specialist at the northwest Indian fisheries commission and the Columbia river inter-tribal fish commission for the purpose of implementing this chapter.

NEW SECTION.  Sec. 6   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 7   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION.  Sec. 8   Sections 1 through 7 of this act constitute a new chapter in Title 47 RCW.