WSR 07-13-004




[ Filed June 7, 2007, 12:47 p.m. , effective June 7, 2007, 12:47 p.m. ]

Effective Date of Rule: Immediately.

Purpose: In relation to projects on LEAP Capital Documents 2007-1 (aquatic lands enhancement account program) and 2007-3 (Washington wildlife and recreation program), to provide a "waiver of retroactivity" for development costs. Without amendment, the standard rule prohibits reimbursement for certain expenditures made or costs incurred without prior interagency committee approval.

Citation of Existing Rules Affected by this Order: Amending WAC 286-13-085(2).

Statutory Authority for Adoption: RCW 79A.15.060(1).

Other Authority: RCW 79A.15.070(5).

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The effective date of a permanent WAC change is several months after the actual availability of funding for projects on LEAP Capital Documents 2007-1 and 2007-3; emergency rule adoption is needed to ensure the relief provided can be used immediately by affected government entities, per IAC Resolution 2007-09 (June 7, 2007).

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

Date Adopted: June 7, 2007.

Greg Lovelady

Rules Coordinator


AMENDATORY SECTION(Amending WSR 98-08-014, filed 3/18/98, effective 4/18/98)

WAC 286-13-085   Retroactive and increased costs.   See WAC 286-04-010 for definition of terms for the following section.

Under most conditions, eligible expenses may only be reimbursed for activities that occur within the period cited in the project agreement. This is known as the committee's prohibition on retroactivity. To avoid this prohibition, a waiver may be issued.

(1) Retroactive land acquisition costs.

The director may grant a waiver of retroactivity whenever an applicant asserts, in writing, that a condition exists which may jeopardize the project. When evidence warrants, the director may grant the applicant permission to proceed by issuing the written waiver. This waiver of retroactivity will not be construed as an approval of the proposed project. If the project is subsequently approved, however, the costs incurred will be eligible for assistance. If the project is to remain eligible for grant support from federal funds, the director shall not authorize a waiver of retroactivity to the applicant until the federal agency administering the federal funds has issued its own waiver of retroactivity as provided under its rules and regulations.

(2) Retroactive development costs. The only retroactive development costs eligible for reimbursement consideration are preliminary expenses (e.g., engineering costs).

However, solely in respect to ((WWRP)) projects on LEAP Capital Documents ((5)) 2007-1 and 2007-3, that were approved for funding by the IAC on June 7, 2007, the director is authorized to grant a waiver of retroactivity, which establishes eligibility for future reimbursement of all ((appropriate)) eligible development costs. Such applicants' retroactivity requests must be in writing, and ((provide sufficient justification)) include all post-approval materials required by IAC policy (for example, control and tenure information, compliance with applicable executive orders, etc.). Reimbursement of expenditures is subject to the provisions of WAC 286-13-070. This authority shall be effective until the execution of a project agreement or ((June 30, 1997)) September 30, 2007, whichever occurs first.

(3) Cost increases.

(a) Cost increases for approved projects may be granted by the committee if financial resources are available.

(b) Each cost increase request will be considered on its merits.

(c) If an approved project recommended for federal funding is denied by the appropriate federal agency, the sponsor may request that the committee increase assistance by an equivalent amount; such requests shall be considered on their merits.

(d) The director may approve a sponsor's acquisition, development, and/or noncapital project cost increase request so long as the total request does not exceed ten percent of the project's approved initial cost. The director's approval of an acquisition project cost increase is limited to a parcel-by-parcel appraised and reviewed value.

[Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5), 43.99.080(2), 46.09.240(1) and 77.12.720. 98-08-014, 286-13-085, filed 3/18/98, effective 4/18/98; 97-08-003, 286-13-085, filed 3/20/97, effective 4/20/97. Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5) and 43.99.080(2). 96-15-082, 286-13-085, filed 7/18/96, effective 8/18/96. Statutory Authority: RCW 43.98A.060(1), 43.98A.070(5), 43.99.080(2), 46.09.240(1) and 77.12.720(4). 96-08-044, 286-13-085, filed 3/29/96, effective 4/29/96. Statutory Authority: RCW 43.98A.060(1), [43.98A].070(5), 43.99.080, 46.09.240 and 77.12.720. 94-17-095, 286-13-085, filed 8/17/94, effective 9/17/94.]

Washington State Code Reviser's Office