WSR 97-11-040

PROPOSED RULES

DEPARTMENT OF TRANSPORTATION

[Filed May 16, 1997, 8:11 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-08-016.

Title of Rule: Chapter 468-105 WAC, Public advisory elections for selected state transportation facilities.

Purpose: Revise rule to reflect 1996 legislative changes (SSB 6753) and to comply with chapter 47.46 RCW.

Statutory Authority for Adoption: Chapter 47.46 RCW.

Statute Being Implemented: Public-Private Initiatives in Transportation Act.

Summary: Rule is revised to reflect legislative changes in 1996 session (SSB 6753) and to reflect department commitment to conform WAC to existing statute as indicated to the Joint Administrative Rules [Review] Committee.

Name of Agency Personnel Responsible for Drafting and Implementation: Rhonda Brooks, Program Manager, Olympia, Washington, (360) 664-2910; and Enforcement: Jerry Ellis, Director, Olympia, Washington, (360) 664-2900.

Name of Proponent: Washington State Department of Transportation, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 468-105 WAC sets for the administrative procedure for conducting a public advisory election on selected transportation facilities under the public- private initiatives in transportation program.

Proposal Changes the Following Existing Rules: SSB 6753 amended chapter 47.46 RCW by requiring a "preferred alternative" to be defined in the SEPA process prior to conducting a public advisory election on selected state transportation facilities. The revised WAC rule reflects this statutory change. In addition, a protest filed with the Joint Administrative Rules [Review] Committee declares that a recommendation from the Local Involvement Committee after the public advisory election is beyond the scope of the existing statute. The Washington State Department of Transportation and the Attorney General's Office concurs and the rule is proposed to be amended accordingly.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Administrative rule does not economically impact small businesses.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption.

Hearing Location: Department of Transportation, Commission Board Room 1D16, Transportation Building, Olympia, Washington, on June 26, 1997, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact TDD (360) 705-6980, by June 20, 1997.

Submit Written Comments to: Rhonda Brooks, Program Manager, Department of Transportation, P.O. Box 47395, Olympia, WA 98504-7395, FAX (360) 664-2770, by June 20, 1997.

Date of Intended Adoption: June 26, 1997.

May 12, 1997

E. R. Burch

Acting Deputy Secretary

for Operations

AMENDATORY SECTION (Amending WSR 96-03-107, filed 1/23/96, effective 2/23/96)

WAC 468-105-020 Definitions. For the purpose of implementing RCW 47.46.030 (3) through (11) relative to the process for conducting public advisory elections on selected transportation facilities, the following definitions apply:

(1) "Affected project area" means a geographic area of the state impacted by the imposition of tolls or user fees that is defined and established by the department following a public comment period and a recommendation by the public private local involvement committee. The affected project area is a geographic portion of the state which is depicted in a map.

(2) "City" means any jurisdiction formed under Titles 35 and 35A RCW including any first class city (RCW 35.01.010), second class city (RCW 35.01.020), town (RCW 35.01.040) or code city (RCW 35A.01.035).

(3) "County auditor" shall have the same meaning as provided in RCW 29.01.043.

(4) "Department" means the Washington state department of transportation.

(5) "Initial affected project area" means a geographic area of the state that is defined by the department as a result of a comprehensive analysis of traffic patterns and economic impacts created by the imposition of tolls or user fees to finance a proposed project.

(6) "Local involvement committee (LIC)" means an advisory committee officially named the "public private local involvement committee" which will be established for each proposed project. The LIC will serve in an advisory capacity on all functions and responsibilities of the department in the conduct of the public advisory election.

(7) "Project description" means a written description of the proposed project that is prepared by the department in consultation with the LIC. The project description is a statement of the essential elements of the proposed project.

(8) "Project developer" means a private entity submitting a proposed project to improve transportation capital facilities under chapter 47.46 RCW.

(9) "Proposed project" means a conceptual project proposed by one or more project developers which is intended to build or improve transportation capital facilities. The proposed projects are those selected pursuant to chapter 47.46 RCW which have organized opposition as demonstrated by the submission to the department of original petitions bearing at least five thousand signatures of individuals opposing the proposed project by the deadlines set forth in RCW 47.46.030 (10) and (11).

(10) "Public advisory election" means an election conducted within an affected project area by the county auditor for the purpose of advising the department on the public support or opposition to the imposition of tolls to finance a proposed project.

(11) "Preferred alternative" means a proposed action identified in the draft environmental impact statement developed in chapter 42.21C RCW.

[Statutory Authority: RCW 47.46.030 (3)-(11). 96-03-107, 468-105-020, filed 1/23/96, effective 2/23/96.]

AMENDATORY SECTION (Amending WSR 96-03-107, filed 1/23/96, effective 2/23/96)

WAC 468-105-040 Local involvement committee. (1) Creation of the local involvement committee. A public private local involvement committee shall be established for each proposed project. The committee will be known as the local involvement committee or "LIC." Within sixty days after defining the initial affected project area, all appointments to the LIC shall be made and submitted to the department.

(2) LIC membership. The LIC membership shall consist of:

(a) One elected official of each county and one elected official from each city lying wholly or in part within the affected project area. Such members shall be appointed by a majority of the members of the county or city legislative authority.

(b) Two persons from each county lying wholly or in part within the affected project area each of whom represents an organization formed in support of the proposed project, if any such organizations exist; and two persons from each county lying wholly or in part within the affected project area each of whom represents an organization formed to oppose the proposed project, if any such organizations exist. Such members shall be appointed by the county legislative authority. Prior to such appointment, the county legislative authority shall identify and validate organizations officially formed in support of or in opposition to the proposed project. The method of validation shall be devised by the county. Appointments shall be made from list(s) submitted by the chairs of the validated organizations. The county legislative authority shall submit a list of the appointed members in writing to the department.

(c) Four public members active in a state-wide transportation organization who shall be appointed by the governor.

(d) Vacancies in the membership of the LIC shall be filled by the appointing authority under (a) through (c) of this subsection.

(e) If the committee makeup results in an even number of committee members, there shall be an additional appointment of an elected official from the county in which all, or the greatest portion of the proposed project is located.

(3) Compensation and expenses. Members of the LIC shall serve without compensation and may not receive reimbursement for subsistence, lodging expenses, or travel expenses from the department.

(4) LIC duties. Each LIC will serve in an advisory capacity to the department on all matters related to the administration of the public advisory elections including:

(a) Reviewing the methodology, criteria and recommendations developed in the traffic and economic studies and used by the department to establish the initial affected project area boundary.

(b) ((Advising the department on the maximum length of the public comment period for establishing the affected project area.

(c))) Reviewing the initial affected project area boundary and recommending adjustments, if any are deemed desirable, to the geographic boundaries and the LIC membership.

(((d))) (c) Reviewing the project description ((prepared)) that is based upon the preferred alternative selected by the department and recommending changes, if any are deemed desirable, in order for the department to prepare the final project description.

(((e))) (d) Recommending to the department the date for the public advisory elections that are within those dates established by RCW 29.13.020.

(((f) Reviewing the public advisory election results and providing a recommendation to the department on whether the department should impose tolls or user fees to finance the proposed project.

(g))) (e) Providing advice on any other matters identified by the department related to the administration of the public advisory election in the affected project areas.

(5) LIC meeting and procedures.

(a) LIC meetings shall be open to the public and shall be subject to the requirements of the Open Public Meetings Act, RCW 42.30.030. The public shall have advance notice of LIC meetings as described in LIC procedures established in (b) of this subsection. Meetings shall be held in locations within the affected project areas and be accessible for persons with disabilities.

(b) Within thirty days of the first LIC meeting, each LIC shall develop meeting procedures to include but not be limited to the frequency and location of meetings, alternate members, methods of public notification and public participation at the meetings. Each LIC shall also develop its own method of providing recommendations to the department, provided that all decisions of the LIC shall be made by a simple majority of the LIC members. A simple majority shall be defined as fifty percent of the members plus one member of the LIC committee.

(c) All LIC meeting summaries, reports, correspondence and other materials are subject to public disclosure pursuant to chapter 42.17 RCW.

(6) Administrative support to LIC's. The department shall provide administrative support to the LIC's. Such support shall include notifying members of meetings, providing public notification of meetings, facilitating meetings, arranging for meetings and materials, and other necessary administrative support.

[Statutory Authority: RCW 47.46.030 (3)-(11). 96-03-107, 468-105-040, filed 1/23/96, effective 2/23/96.]

AMENDATORY SECTION (Amending WSR 96-03-107, filed 1/23/96, effective 2/23/96)

WAC 468-105-050 Establishing affected project area. (1) Public comment on initial affected project area. The department shall conduct a ((minimum)) thirty-day public comment period on the definition of each initial affected project area boundary. ((The department, in consultation with the LIC shall establish the maximum period of public comment.))

(2) LIC recommendation on affected project area. The LIC shall review the public comments. The LIC shall recommend adjustments to the geographic boundary of the initial affected project area based upon the public comment. Adjustments to the geographic boundary shall be established by precinct. The LIC may also recommend adjustments to the membership of the LIC based upon any recommended boundary adjustments.

(3) Final boundaries of affected project area. Within fourteen calendar days after the close of the public comment period and a recommendation from the LIC, the department shall establish the final boundaries of the affected project area in units no smaller than a precinct as defined in RCW 29.01.120.

[Statutory Authority: RCW 47.46.030 (3)-(11). 96-03-107, 468-105-050, filed 1/23/96, effective 2/23/96.]

AMENDATORY SECTION (Amending WSR 96-03-107, filed 1/23/96, effective 2/23/96)

WAC 468-105-060 Project description. (1) Proposed project description. A draft project description shall be developed by the department based upon the ((information submitted by project developers for the proposed project as approved by the state transportation commission on August 18, 1994, or contained in a proposal approved after June 30, 1997)) preferred alternative.

(2) LIC recommendation on project description. The department shall provide the project description to the LIC. The LIC shall recommend changes to the content of the project description, if any, so that the department may prepare the final project description.

(3) Publication of project description. The department shall publish the project description in newspapers of general circulation in each county lying in whole or in part within the affected project area for a period of seven calendar days.

[Statutory Authority: RCW 47.46.030 (3)-(11). 96-03-107, 468-105-060, filed 1/23/96, effective 2/23/96.]

AMENDATORY SECTION (Amending WSR 96-03-107, filed 1/23/96, effective 2/23/96)

WAC 468-105-070 Public advisory elections. (1) Transmittal to county auditor. Within fourteen calendar days after the last day of the publication of the project description, the department shall transmit a letter requesting a public advisory election and a copy of the map depicting the affected project area and the project description to the county auditor of each county in which any portion of the affected project area is located.

(2) Precinct verification. Upon receipt of the affected project area map, and the project description, the county auditor shall, within thirty days, verify the precincts that are located within the affected project area.

(3) Ballot proposition.

(a) The department shall request the office of the attorney general to prepare the ballot title and summary advising the department on the public support or opposition to the imposition of tolls or user fees to implement the ((proposed project)) preferred alternative within the affected project area in the same manner and type as those required under RCW 29.79.040 for the public advisory election.

(b) Any registered voter residing within the affected project area who is dissatisfied with the content of the ballot title or summary may appeal to the superior court of Thurston County in the same manner as provided for on state measures in RCW 29.79.060.

(c) Not later than sixty days before the election date, the department shall submit the complete text of the ballot title and summary to the county auditor for the purpose of preparing the voters pamphlet and conducting the public advisory election.

(4) Election date. Unless a special election is requested by the department, the public advisory election shall be held at the next succeeding general election to be held in the state. The special election date must be the next date for a special election provided under RCW 29.13.020 that is at least sixty days, but not more than ninety days after the transmittal of the final map of the affected project area, project description, the ballot title and summary to the county auditor under subsection (1) of this section.

(5) Voters pamphlet.

(a) The county auditor shall prepare or contract with the secretary of state to prepare the voters pamphlet in the same manner required under chapter 29.81A RCW using the full text of the ballot title, summary, the project description and the geographic boundary of the affected project together with statements for and against the imposition of tolls or user fees to finance the proposed project. Committees to prepare the statements for and against the imposition of tolls to finance the proposed project for the voters pamphlet shall be appointed in the same manner as committees for state measures under RCW 29.81.050. The secretary of state shall transmit committee names and their statements to the county auditors.

(b) The county auditor may consolidate the voters pamphlet on the public advisory election with any other local voters pamphlet that is being produced by the county auditor for an election.

(6) Reimbursement for election costs. The department shall reimburse the costs of publication and distribution of information to the voters incurred by the county auditor in the same manner that local election costs are allocated under RCW 29.13.045. The department shall reimburse the county auditor for the cost of an election.

[Statutory Authority: RCW 47.46.030 (3)-(11). 96-03-107, 468-105-070, filed 1/23/96, effective 2/23/96.]

AMENDATORY SECTION (Amending WSR 96-03-107, filed 1/23/96, effective 2/23/96)

WAC 468-105-080 Public advisory election results. (1) Canvassing the votes cast on a public advisory election. Immediately following the certification of the votes cast on the public advisory election by the county canvassing board, the county auditor shall transmit a certified copy of the returns of that special election to the secretary of state in the same manner as provided for state measures in RCW 29.62.090.

(2) Certification of returns on a public advisory election to the department. Within three days following the receipt of the certified returns from a special election on a public advisory election, the secretary of state shall accumulate the results from the respective counties and certify the results to the department.

(((3) LIC recommendation on public advisory election results. Within thirty days after receipt of the certification of the election results from the secretary of state, the LIC shall review the election results and recommend to the department on whether to proceed with the imposition of tolls to finance the proposed project.))

[Statutory Authority: RCW 47.46.030 (3)-(11). 96-03-107, 468-105-080, filed 1/23/96, effective 2/23/96.]