BILL REQ. #:  H-2749.3 

Prefiled 12/02/13. Read first time 01/13/14.   Referred to Committee on Environment.

     AN ACT Relating to reducing the cost of transportation projects by linking state conservation investments with mitigation requirements; amending RCW 43.21C.060 and 47.01.305; reenacting and amending RCW 90.74.010; adding a new section to chapter 90.74 RCW; adding a new section to chapter 77.55 RCW; adding a new section to chapter 76.09 RCW; adding a new section to chapter 90.58 RCW; adding a new section to chapter 70.94 RCW; adding a new section to chapter 78.44 RCW; adding a new section to chapter 86.16 RCW; adding a new section to chapter 36.70A RCW; and adding a new section to chapter 90.48 RCW.

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

Sec. 1   RCW 90.74.010 and 2012 c 62 s 3 are each reenacted and amended to read as follows:
     The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Compensatory mitigation" means the restoration, creation, enhancement, or preservation of uplands, wetlands, or other ((aquatic)) resources for the purposes of compensating for unavoidable adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved. "Compensatory mitigation" includes mitigation that:
     (a) Occurs at the same time as, or in advance of, a project's planned environmental impacts;
     (b) Is located in a site either on, near, or distant from the project's impacts; and
     (c) Provides either the same or different biological functions and values as the functions and values impacted by the project.
     (2) "Family forest fish passage program" means the program administered by the recreation and conservation office created pursuant to RCW 76.09.410 that provides public cost assistance to small forest landowners associated with the road maintenance and abandonment processes.
     (3) "Forestry riparian easement program" means the program established in RCW 76.13.120.
     (4) "Infrastructure development" means an action that is critical for the maintenance or expansion of an existing infrastructure feature such as a highway, rail line, airport, marine terminal, utility corridor, harbor area, or hydroelectric facility and is consistent with an approved land use planning process. This planning process may include the growth management act, chapter 36.70A RCW, or the shoreline management act, chapter 90.58 RCW, in areas covered by those chapters.
     (5) "Mitigation" means sequentially avoiding impacts, minimizing impacts, or compensating for remaining unavoidable impacts.
     (6) "Mitigation plan" means a document or set of documents developed through joint discussions between a project proponent and environmental regulatory agencies that describe the unavoidable ((wetland or aquatic)) resource impacts of a proposed infrastructure development or noninfrastructure development and the proposed compensatory mitigation for those impacts.
     (7) "Noninfrastructure development" means a development project that requires the completion of compensatory mitigation that does not meet the definition of "infrastructure development" and is consistent with an approved land use planning process. This planning process may include the growth management act, chapter 36.70A RCW, or the shoreline management act, chapter 90.58 RCW, in areas covered by those chapters.
     (8) "Project proponent" means a public or private entity responsible for preparing a mitigation plan.
     (9) "Riparian open space program" means the program created pursuant to RCW 76.09.040.
     (10) "Watershed" means an area identified as a state of Washington water resource inventory area under WAC 173-500-040 as it exists on June 7, 2012.
     (11) "Environmentally designated land" means land purchases or other acquisitions and investments that were paid for directly or indirectly by public funds and result in the creation, conservation, or enhancement of land, or any portion of land, that is open space, a park, forest land, fish or wildlife habitat, a conservation area or easement, a wetland, a critical area, or property that is unlikely to be paved or have permanent structures erected upon it.

NEW SECTION.  Sec. 2   A new section is added to chapter 90.74 RCW to read as follows:
     (1) State agencies and local governments may not, as part of any permitting process, require the department of transportation or a local government to purchase or otherwise acquire an interest in land as an environmental or compensatory mitigation requirement for a transportation project unless subsection (2) of this section does not apply.
     (2)(a) Prior to agreeing with a permitting agency to purchase or otherwise acquire land as environmental or compensatory mitigation, the department of transportation or local project applicant must first determine if an existing environmentally designated land satisfies the mitigation requirements. If the department of transportation or local project applicant determines that an identified existing environmentally designated land provides substantially similar environmental benefit to the proposed mitigation requirement, then the permitting agency must accept the existing environmentally designated land investment as satisfaction for the mitigation requirement.
     (b) The department of transportation may only use environmentally designated land for mitigation under this section if the land investment was paid in full or part by direct or indirect state funding. Local governments may only use environmentally designated land for mitigation under this section if the land investment was paid in full or part by direct or indirect local funding unless the transportation project in question is being funded with state money, in which case the local government can also utilize state-funded environmentally designated land.
     (3) Only the minimum portion of the identified existing environmentally designated land parcel necessary to satisfy the environmental or compensatory mitigation is required to be documented and used for the project so that the acreage of the environmentally designated land parcel is fully used for as many projects as possible without using any portion of that property more than once. A parcel of environmentally designated land may be used for multiple mitigation uses if the parcel is restored or enhanced after its initial use under this section.
     (4) When coordinating with federal permitting agencies, the department of transportation and local governments shall, whenever possible and consistent with this section, utilize existing environmentally designated lands for transportation project mitigation.

Sec. 3   RCW 43.21C.060 and 1983 c 117 s 3 are each amended to read as follows:
     The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties. Any governmental action may be conditioned or denied pursuant to this chapter: PROVIDED, That such conditions or denials shall be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans, or codes which are formally designated by the agency (or appropriate legislative body, in the case of local government) as possible bases for the exercise of authority pursuant to this chapter. Such designation shall occur at the time specified by RCW 43.21C.120. Such action may be conditioned only to mitigate specific adverse environmental impacts which are identified in the environmental documents prepared under this chapter. These conditions shall be stated in writing by the decision maker. Mitigation measures shall be reasonable and capable of being accomplished and must be consistent with section 2 of this act. In order to deny a proposal under this chapter, an agency must find that: (1) The proposal would result in significant adverse impacts identified in a final or supplemental environmental impact statement prepared under this chapter; and (2) reasonable mitigation measures are insufficient to mitigate the identified impact. Except for permits and variances issued pursuant to chapter 90.58 RCW, when such a governmental action, not requiring a legislative decision, is conditioned or denied by a nonelected official of a local governmental agency, the decision shall be appealable to the legislative authority of the acting local governmental agency unless that legislative authority formally eliminates such appeals. Such appeals shall be in accordance with procedures established for such appeals by the legislative authority of the acting local governmental agency.

Sec. 4   RCW 47.01.305 and 2009 c 471 s 1 are each amended to read as follows:
     (1) For highway construction projects where the department considers agricultural lands of long-term commercial significance, as defined in RCW 36.70A.030, in reviewing and selecting sites to meet environmental mitigation requirements under the national environmental policy act (42 U.S.C. Sec. 4321 et seq.) and chapter 43.21C RCW, the department shall, to the greatest extent possible, consider using public land and the tools provided by section 2 of this act first.
     (2) If public lands are not available that meet the required environmental mitigation needs, the department may use other sites while making every effort to avoid any net loss of agricultural lands that have a designation of long-term commercial significance.

NEW SECTION.  Sec. 5   A new section is added to chapter 77.55 RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.

NEW SECTION.  Sec. 6   A new section is added to chapter 76.09 RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.

NEW SECTION.  Sec. 7   A new section is added to chapter 90.58 RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.

NEW SECTION.  Sec. 8   A new section is added to chapter 70.94 RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.

NEW SECTION.  Sec. 9   A new section is added to chapter 78.44 RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.

NEW SECTION.  Sec. 10   A new section is added to chapter 86.16 RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.

NEW SECTION.  Sec. 11   A new section is added to chapter 36.70A RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.

NEW SECTION.  Sec. 12   A new section is added to chapter 90.48 RCW to read as follows:
     This chapter may not be implemented in any way that frustrates the purpose of section 2 of this act.