Wetland mitigation banks




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Chapter 173-700 WAC

WETLAND MITIGATION BANKS

PART I

OVERVIEW

173-700-100 Background and purpose

173-700-101 Applicability

173-700-102 Applicability to tribal banks

173-700-103 Public records

173-700-104 Definitions
PART II

CERTIFICATION PROCESS

173-700-200 How do other laws and rules relate to banks

173-700-201 Decision making procedure
173-700-210 Purpose of the prospectus

173-700-211 Content of the prospectus

173-700-212 Submittal of the prospectus
173-700-220 Convening the Interagency Review Team

173-700-221 Purpose of the instrument

173-700-222 Content of the instrument

173-700-223 Preliminary review of the technical elements of the draft instrument

173-700-224 Submittal of the draft instrument

173-700-225 Review of the draft instrument
173-700-230 Submittal of the final instrument

173-700-231 Signatories of the instrument

173-700-232 Dispute resolution process

173-700-233 Review timelines
173-700-240 Public notices

173-700-241 Notification on the prospectus and proposed certification

173-700-242 Public hearings

PART III

BANK ESTABLISHMENT

173-700-300 Ecological design incentives

173-700-301 Service area

173-700-302 Considerations for determining service area size

173-700-303 Site selection

173-700-304 Buffers
173-700-310 Credit description

173-700-311 Types of credits

173-700-312 Default method for determining credits

173-700-313 Wetland credit conversion rates

173-700-314 Considerations for determining credit conversion rates for wetland
re-establishment, creation, rehabilitation and enhancement

173-700-315 Considerations for determining credit conversion rates for wetland preservation

173-700-316 Considerations for determining high quality wetland systems

173-700-317 Considerations for determining credit conversion rates for banks in urban areas

173-700-318 Credit conversion rates for uplands and other habitats

173-700-319 Considerations for determining credit conversion rates for uplands and other habitats

173-700-320 Exceptions to credit conversion rates

173-700-321 Using an alternative method to determine credits
173-700-330 Schedule for the release of credits

173-700-331 Credit release - pre-construction

173-700-332 Credit release - post-construction

173-700-333 Credit release - attainment of hydrologic performance standards

173-700-334 Credit release - final release

173-700-335 Additional credit releases
173-700-340 Performance standards
173-700-350 Financial viability

173-700-351 Financial assurances

173-700-352 Financial assurances for construction

173-700-353 Financial assurances for monitoring and maintenance

173-700-354 Financial assurances for long-term management
PART IV

BANK OPERATION

173-700-400 Monitoring plan

173-700-401 Monitoring and as-built reporting

173-700-402 Monitoring and maintenance

173-700-403 Adaptive management plan
173-700-410 Obtaining credit releases

173-700-411 Ledger tracking and reporting

173-700-412 Master ledger

173-700-413 Random audits
173-700-420 Long-term management plan

173-700-421 Permanent protection
PART V

USE OF BANK CREDITS

173-700-500 Use of bank credits

173-700-501 Replacement ratios for debit projects

173-700-502 Use of bank credits outside of the service area
PART VI

COMPLIANCE WITH CERTIFICATION

173-700-600 Compliance with the terms of certification

173-700-601 Remedial actions

173-700-602 Compliance with required remedial actions

173-700-603 Suspension of credit use
PART VII

RESPONSIBILITIES AND ROLES

173-700-700 Role of the interagency review team

173-700-701 Role of the signatories
PART VIII
APPEALS

173-700-800 Appeals process
PART I

OVERVIEW

173-700-100 Background and purpose.

(1) The Wetlands Mitigation Banking Act, Chapter 90.84 RCW, identifies wetland mitigation banking (banks) as an important regulatory tool for providing compensatory mitigation for unavoidable impacts to wetlands and declares it the policy of the state to support banking. The act directs the Department of Ecology (department) to adopt rules establishing a statewide process for certifying banks.

(2) The department anticipates that banks will provide compensatory mitigation in advance of impacts to wetlands and will consolidate compensatory mitigation into larger contiguous areas for regionally significant ecological benefits.

(3) Banks prioritize restoration of wetland functions and as such should be complementary to the restoration of ecosystems and ecosystem processes as identified in state or locally adopted science-based watershed management plans.

(4) The purpose of this chapter is to encourage banking by providing an efficient, predictable statewide framework for the certification and operation of environmentally sound banks. This chapter sets out to accomplish the following:

(a) Provide timely review of bank proposals;

(b) Establish coordination among state, local, tribal, and federal agencies involved in the certification of banks;

(c) Ensure consistency with existing federal mitigation rules;

(d) Provide incentives to encourage bank sponsors (sponsors) to locate and design banks that provide the greatest ecological benefits.


173-700-101 Applicability.

(1) This chapter applies to private and public banks established under Chapter 90.84 RCW.

(2) All mitigation banking instruments (instruments) approved on or after July 31, 2009 must meet the requirements of this chapter;

(3) Instruments approved prior July 31, 2009 are grandfathered and may continue to operate under the terms of their existing instruments;

(4) Instruments modified on or after July 31, 2009 must be consistent with the terms of this chapter. Modifications include but are not limited to:

(a) Addition of sites under an umbrella instrument;

(b) Expansion of an existing site; or

(c) Addition of a different resource currency (e.g., flood storage credits).

173-700-102 Applicability to tribal banks.

(1) For proposed tribal banks which are located exclusively in Indian Country, the following section applies:

(a) If the tribal bank has been approved by the U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) under existing federal rules, the bank will be deemed state certified, solely to allow the use of credits for projects under state jurisdiction, provided that:

(i) The department was a member of the IRT for the proposed bank;

(ii) Any concerns raised by the department, through the IRT process, have been resolved to the department’s satisfaction; and

(iii) The department has notified the Corps and EPA in writing that it concurs with their approval of the bank.

(b) The department shall determine whether to allow the use of bank credits for projects under state jurisdiction on a case-by-case basis. 

(c) Certification under this section does not imply any extension of state jurisdiction or authority by the state on tribal land use activities.

(2) Proposed tribal banks which are located outside of Indian Country and partially or wholly on lands under state jurisdiction are not covered under this section and are subject to the requirements of this chapter.

173-700-103 Public records.

The department must make available for public inspection:

(1) The prospectus;

(2) The final instrument;

(3) Other supporting materials; and

(4) The comments received by the department during the public notice period(s).


173-700-104 Definitions.

Agricultural Lands of Long-term Commercial Significance” or “ALLCS” means land primarily devoted to the commercial production of horticultural, viticultural, floricultural, dairy, apiary, vegetable, or animal products or of berries, grain, hay, straw, turf, seed, Christmas trees not subject to the excise tax imposed by RCW 84.33.100 through 84.33.140, finfish in upland hatcheries, or livestock, and that has long-term commercial significance for agricultural production.

Aquatic Resources” means those areas where the presence and movement of water is a dominant process affecting their development, structure, and functioning. Aquatic resources may include, but are not limited to, vegetated and non-vegetated wetlands or aquatic sites (e.g. mudflats, deepwater habitats, lakes, and streams).

As-built plans” means a document which describes the physical, biological, and, if required, the chemical condition of a bank site after complete construction of each phase of an approved construction plan. As-built plans serve as a baseline from which to manage and monitor the site.

Available credits” means a potential credit that has been released by the department after a bank attains the performance standards specified in the instrument.

Bank” or “wetland mitigation bank” means a site where wetlands are restored, created, enhanced, or in exceptional circumstances, preserved, expressly for the purpose of providing compensatory mitigation in advance of development impacts to wetlands or other aquatic resources that typically are unknown at the time of certification.

Bank sponsor” or “sponsor” means any public or private entity responsible for establishing and, in most circumstances, operating a bank.

Buffer” means those areas on the perimeter of a bank site that enhance and protect a wetland's functions and values by maintaining adjacent habitat and reducing adverse impacts from adjacent land-uses. These areas are vegetated and can reduce impacts through various physical, chemical, and/or biological processes.

Compensatory mitigation” means the restoration, creation, enhancement, or in exceptional circumstances, the preservation of wetlands or other aquatic resources for the purpose of compensating for unavoidable adverse impacts to wetlands or other aquatic resources which remain after all appropriate and practicable avoidance and minimization has been achieved.

Consensus” means a process by which a group synthesizes its ideas and concerns to form a common collaborative agreement acceptable to all members. While the primary goal of consensus is to reach agreement on an issue by all parties, unanimity may not always be possible.

Contingency actions” means actions taken during the operational life of a bank site to correct any deficiencies on the site in order for the site to attain the required performance standards.

Cowardin class” means the classification of a wetland area as described in Classification of Wetlands and Deepwater Habitats of the United States USFWS publication FWS/OBS 79/31.

Creation” means the establishment of wetland area, functions, and values in an area where none previously existed.

Credit” means a unit of trade representing the increase in the ecological value of the bank site, as measured by acreage, functions, or by some other assessment method.

Days” means calendar days.

Debited credit” means an available credit which has been withdrawn from the bank to meet regulatory requirements.

Debit project” means those projects that use credits from a bank to fulfill regulatory requirements for compensation of impacts. These projects may require more than one regulatory approval under federal, state, and local rules.

Department” means the Department of Ecology.

Enhancement” means actions taken within an existing degraded wetland or other aquatic resource to increase or augment one or more functions or values. Enhancement can also include actions taken to improve the functions provided by a buffer or upland area. Enhancement actions typically focus on structural improvements to a site and generally do not address environmental processes, either at the site scale or at a larger scale.

Financial assurance” means the money or other form of financial instrument (e.g. surety bonds, trust funds, escrow accounts, proof of stable revenue sources for public agencies) required of the sponsor to ensure that the functions of the bank are achieved and maintained over the long-term.

Function assessment” means an evaluation of the degree to which a wetland is performing, or is capable of performing, specific wetland functions and processes. Function assessments include the use of scientifically-based quantitative and qualitative methods developed for assessing functions, as well as the use of best professional judgment.

Hydrogeomorphic classification” or “HGM class” means a wetland classification scheme that groups wetlands based on their location in the landscape and water regime.

Instrument” or “Mitigation banking instrument” means the documentation of agency and sponsor concurrence on the objectives and administration of the bank. The mitigation banking instrument describes in detail the physical and legal characteristics of the bank, including the service area, and how the bank will be established and operated.

Interagency review team” or “IRT” means an interagency group of federal, state, tribal, and local regulatory and resource agency representatives who are invited to participate in negotiations with the sponsor on the terms and conditions of the instrument.

Local jurisdiction” means any local government such as a town, city, or county in which the bank site is located.

Maintenance” includes all activities and actions necessary to ensure the successful development of a bank.

Mitigation sequencing” means sequentially avoiding impacts, minimizing impacts, and compensating for remaining unavoidable impacts to wetlands or other aquatic resources.

Operational life” or “operational life of a bank” means the period during which the terms and conditions of the instrument are in effect. With the exception of arrangements for the long-term management, permanent protection, and financial assurances, the operational life of a mitigation bank terminates at the point when:

(1) Available credits have been exhausted and the bank is determined to be functionally mature and self-sustaining to the degree specified in the instrument; or

(2) The sponsor voluntarily terminates the banking activity with written notice to the department.

Performance standards” are measurable criteria for determining if the project goals and objectives are being achieved. Performance standards document a desired state, threshold value, or amount of change necessary to indicate that a particular function is being performed or structure has been established as specified in the design.

Potential credit” means a credit anticipated to be generated by the bank, but is not currently available for use.

Practicable” means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

Preservation” means the permanent protection of ecologically important wetlands or other aquatic resources through the implementation of appropriate legal and physical mechanisms. Preservation may include protection of upland areas adjacent to wetlands as necessary to ensure protection or enhancement of the aquatic systems, or both. Preservation does not result in a gain of aquatic resource area or functions.

Prospectus” is the conceptual proposal for a bank project.

Re-establishment” means actions taken to return wetland area, function, and values to a site where wetlands previously existed, but are no longer present because of the lack of water or hydric soils. Re-establishment falls under the broader term of restoration.

Rehabilitation” means actions taken in an existing wetland or at a larger landscape scale to reinstate environmental processes that have been disturbed or altered by human activities, thereby improving the functions of an existing wetland. Rehabilitation typically involves restoring the original HGM class or subclass to a wetland whose current HGM class or subclass is a result of alterations caused by human activities. Rehabilitation falls under the broader term of restoration.

Remedial actions” means actions required by the department to correct any deficiencies on the site in order for the site to attain the required performance standards. Remedial actions may be required by the department to gain compliance by the sponsor with this chapter.

Restoration” is a broad term referring to both re-establishment and rehabilitation.

Service area” means the designated geographic area in which a bank can reasonably be expected to provide appropriate compensation for unavoidable impacts.

Signatories” means those entities that have documented their concurrence with the terms and conditions of the instrument through their signature on the document.

Sustainability” means the ability of a bank to persist in the landscape and maintain its functions in anticipation of future development needs within the watershed. Sustainable bank sites must have sufficient buffer areas to protect the site from degradations due to activities on adjacent lands.

Umbrella banks” A single instrument may provide for future authorization of additional bank sites. As additional sites are selected, they must be included in the instrument as modifications, using the procedures outlined in WAC 173-700-212 through 173-700-231; unless the department determines that a streamlined review process is warranted.

Unavoidable” means adverse impacts that remain after all appropriate and practicable avoidance and minimization has been achieved.

Water resource inventory areas” or “WRIA” refers to Washington State’s 62 major watershed basins as described in Chapter 173-500 WAC, Water Resources Management Program Established Pursuant to the Water Resources Act of 1971, as amended.

Watershed Characterization” means an approach to identify and map areas within a watershed that are most important to support a watershed process. It identifies the degree of impairment to these areas, and identifies areas most important for protection and restoration. 

Watershed processes” means the dynamic physical and chemical interactions that form and maintain the landscape and ecosystems on a geographic scale of watersheds to basins (hundreds to thousands of square miles).  The most important factors include the movement of water, sediment, nutrients, pathogens, toxic compounds, and wood.

Watershed-based approach to mitigation” means an approach to place mitigation in the right place in the landscape. The watershed-based approach to mitigation means that decisions about where to place mitigation are based on an understanding of ecosystem processes and their effects on ecosystem functions.

Wetland(s)” mean areas that are inundated or saturated by surface water or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

PART II

CERTIFICATION PROCESS

173-700-200 How do other laws and rules relate to banks?

(1) Banks certified under this chapter must be consistent with existing federal, state, and local laws and rules and treaty rights which relate to the establishment of a bank.

(2) Certification of a bank does not serve as authorization for other federal, state, or local permits or approvals.

(3) Interagency Review Team (IRT) members shall advise the sponsor of pertinent federal, state, or local rules that may apply to a specific bank proposal and that may delay the certification process.

(4) The sponsor is responsible for obtaining all required federal, state, and local permits and approvals for the construction and establishment of the bank.

(5) The sponsor is strongly encouraged to coordinate with the local jurisdiction(s) early in the development of their proposal. Each local jurisdiction has its own local permitting process and there is not a standard sequence for integrating with the bank certification process.
173-700-201 Decision making procedure.

(1) All decisions made by the department must fully consider IRT, tribal, and public comments submitted to the department as part of the certification evaluation process.

(2) The department shall strive to achieve consensus with the IRT on the terms and conditions of the instrument.

(3) If the department determines that consensus cannot otherwise be reached on any term, condition, or procedural element of the instrument within a reasonable timeframe, the department shall be responsible for making the final decisions.


173-700-210 Purpose of the prospectus.

(1) The purpose of the prospectus is to provide a conceptual plan for a bank project.

(2) The department uses the prospectus to notify the public, tribes, and the local government of the proposed bank project.

(3) The prospectus initiates dialogue between the department, sponsor, and IRT members on a proposed bank project.

(4) The department uses the prospectus and comments received during the public notice period to make an initial determination on whether there are critical issues that may affect the ability of the bank to be certified.
173-700-211 Content of the prospectus.

At a minimum, the prospectus must contain information on the following elements:

(1) The goals and objectives of the project;

(2) Location including city or county, proximity to existing roads and other landmarks, and a vicinity map showing location of the proposed site(s);

(3) A statement of how the bank meets any watershed restoration needs and how its design and location are ecologically appropriate.

(4) The rationale for site selection addressing the considerations listed in WAC 173-700-303;

(5) The general need for the proposed bank project;

(6) General site map(s) that includes, but is not limited to:

(a) Total area of site;

(b) Location, size, and number of existing wetlands;

(c) Location of all streams, ponds, and other water features on or adjacent to the site;

(d) Location and type of all known water-control features on or adjacent to the site; and

(e) Presence of rights-of-way, easements, or other encumbrances.

(7) A description of existing conditions of the proposed site(s) including, but not limited to:

(a) Land ownership;

(b) Local land-use or zoning designation;

(c) Current use;

(d) Presence of liens, rights-of-way, easements, or other encumbrances;

(e) The landscape position of the site including water resource inventory area (WRIA) and sub-basin location;

(f) Wetland types present on the site including Cowardin classification and Hydrogeomorphic (HGM) class of each wetland;

(g) Other habitat types present;

(h) Available information on water sources including surface water features, preliminary groundwater information, soil types, and vegetation;

(i) A preliminary analysis of functions provided by on-site wetlands;

(j) Adjacent land-uses that might affect the bank’s function;

(k) Site constraints, conflicts, or known risks that could affect bank development or function;

(l) Identification of all buildings, structures, and other built features that would remain on the site after construction; and

(m) Identification of existing mitigation sites and whether they will remain on site after construction.

(8) Description of conceptual site design, including but not limited to:

(a) Proposed types and approximate sizes of wetlands;

(b) Other proposed habitat types to be provided;

(c) Proposed functions that the bank is anticipated to provide;

(d) Description of alterations to hydrology;

(e) Location of grading, if applicable; and

(f) Proposed structures (e.g. perch poles, weirs, trails, etc.)

(9) Figures illustrating the conceptual bank design;

(10) Proposed service area and accompanying rationale that demonstrates the service area is ecologically appropriate;

(11) Discussion of whether water rights have been applied for or secured for the site, if needed;

(12) Identification of proposed permanent protection mechanism, such as a conservation easement;

(13) The proposed ownership arrangements and long-term management strategy for the bank;

(14) Description of how the proposed bank project meets federal, state, and local laws and rules;

(15) Identification of whether the bank site is fully or partially located on agricultural lands of long-term commercial significance; and

(16) The qualifications of the sponsor to successfully complete the proposed bank project(s), including information describing any past such activities by the sponsor.

(17) The qualifications of the main design team and their areas of expertise.
173-700-212 Submittal of the prospectus.

(1) The sponsor must submit a complete electronic and a hard copy of the prospectus to the department.

(2) A prospectus must contain all of the information identified in WAC 173-700-211 to be complete.

(3) When the department receives a prospectus, it will notify affected tribes and the local jurisdiction’s planning department where the bank site is located.

(4) The department will notify the sponsor in writing within 30 days of receipt of a prospectus whether or not the document is complete.

(5) If the department determines that the prospectus is not complete, the department shall identify any additional information necessary to complete the prospectus.

(6) Within 30 days after the department notifies the sponsor that the prospectus is complete, it shall provide public notice of the prospectus.

(7) At the beginning of the comment period, the department will ask appropriate agencies and affected tribes to provide written comments on the prospectus. The comments should address, but are not limited to:

(a) Any technical and ecological concerns regarding the prospectus;

(b) Potential conflicts with existing rules and ordinances; and

(c) Any critical issues that the sponsor needs to address prior to moving forward to developing the draft instrument.

(8) The department will review the comments received in response to the public notice and make a written initial evaluation. The department makes an initial evaluation on the ecological appropriateness of the proposed bank and its ability to provide appropriate compensatory mitigation for activities authorized by state or local permits. This initial evaluation letter must be provided to the sponsor within 30 days of the end of the public notice comment period.

(a) If the department determines that the proposed bank is ecologically appropriate and has potential for providing appropriate compensatory mitigation, the initial evaluation letter will inform the sponsor they may proceed with preparation of the draft instrument consistent with WAC 173-700-222.

(b) If the department determines that the proposed bank is not ecologically appropriate or does not have potential for providing appropriate compensatory mitigation, the initial evaluation letter will provide the reasons for that determination.

(i) The sponsor may revise the prospectus to address the department’s concerns and submit a revised prospectus to the department.

(ii) If the sponsor submits a revised prospectus, the department may provide a revised public notice.


173-700-220 Convening the Interagency Review Team.

(1) If the department determines that the proposed bank may proceed with preparation of the draft instrument, the department shall invite representatives from the appropriate federal and state regulatory and resource agencies, the local jurisdiction(s) where the bank site is located, and affected tribes to participate on the IRT.

(2) The department shall serve as chair of the IRT. For bank proposals seeking federal approvals in addition to state certification, the U.S. Army Corps of Engineers may co-chair the IRT.
173-700-221 Purpose of the instrument.

(1) An instrument details all of the physical characteristics, legal obligations, operational procedures, monitoring, and maintenance requirements for a bank.

(2) Requirements for instruments may vary based on the specific conditions of the bank site.
173-700-222 Content of the instrument.

The minimum technical elements required in the instrument are:

(1) The goals and objectives of the project;

(2) Site location including city or county, proximity to existing roads and other landmarks, and a vicinity map showing location of the proposed site(s);

(3) A description of existing conditions of the proposed site(s) including, but not limited to:

(a) Local land-use or zoning designation;

(b) Current uses;

(c) Presence of liens, rights-of-way, easements, or other encumbrances;

(d) The landscape position of the site including water resource inventory area (WRIA) and sub-basin location;

(e) Wetland types present on the site including Cowardin classification and Hydrogeomorphic (HGM) class of each wetland;

(f) Other habitat types present;

(g) Technical information on soil types, vegetation, and water sources, including surface water features and groundwater information;

(h) An analysis of functions provided by on-site wetlands;

(i) Adjacent land-uses that might affect the bank’s function;

(j) Site constraints, conflicts, or known risks that could affect bank development or function;

(k) Identification of all buildings, structures, and other built features that would remain on the site after construction; and

(l) Identification of existing mitigation sites and whether they will remain on site after construction.

(m) Detailed site map(s) that includes, but is not limited to:

(i) Total area of site;

(ii) Location, size, and number of existing wetlands;

(iii) Location of all streams, ponds, and other water features on and adjacent to the site;

(iv) Location and type of all known water control features on and adjacent to the site; and

(v) Presence of rights-of-way, easements, or other encumbrances.

(4) A statement of how the bank meets any watershed restoration needs and how its design and location are ecologically appropriate.

(5) The rationale for site selection addressing the considerations listed in WAC 173-700-303;

(6) A detailed description of the proposed bank site including, but not limited to:

(a) The bank size;

(b) The landscape position of the site;

(c) The Cowardin, HGM classes, wetland rating, and sizes of wetlands and other aquatic resources proposed;

(d) A description of the buffers for the site and any other habitats provided on the site;

(e) The functions to be provided by the bank and level of increase over existing conditions;

(f) Detailed site design plans and specifications to include grading plans, planting plans, and specifications for any structures; and

(g) Construction timing and schedules;

(7) Documentation of the ownership of bank lands and a legal description of the bank site;

(8) A detailed description of sponsor responsibilities for construction implementation, monitoring and reporting, and maintenance;

(9) A description and map of the service area and accompanying rationale that demonstrates the service area is ecologically appropriate;

(10) The potential number of credits to be generated by the bank and a credit description consistent with WAC 173-700-310;

(11) A description of any restrictions on use of credits;

(12) Documentation of water rights for the proposed bank, if required;

(13) An evaluation of historic, cultural, and archeological resources on the bank site;

(14) Credit tracking and accounting procedures including reporting requirements;

(15) Performance standards for determining bank success and credit release including a schedule for the phased release of credits, if necessary;

(16) Monitoring plan and reporting protocols including a clear statement of responsibility for conducting the monitoring and reporting;

(17) An adaptive management plan and statement of responsibility for contingency actions;

(18) Financial assurances;

(19) The ownership arrangements and long-term management plan for the bank;

(20) Provisions for permanent protection of the bank site;

(21) Force Majeure Clause (identification of sponsor responsibilities in the event of catastrophic events that are beyond the sponsor’s control);

(22) Any supporting documentation requested by the department;

(23) A provision stating that legal responsibility for providing the compensatory mitigation lies with the sponsor once a permittee secures credits from the sponsor; and

(24) Default and closure provisions.
173-700-223 Preliminary review of the technical elements of the draft instrument.

Prior to submitting the draft instrument, the sponsor may elect to have meetings with the IRT to discuss technical elements of their proposal. This preliminary review is optional, but is strongly recommended. It is intended to identify potential issues early, so the sponsor may attempt to address those issues prior to the start of the formal draft instrument review process.


173-700-224 Submittal of the draft instrument.

(1) If the sponsor chooses to proceed with the certification process, they must prepare a draft instrument and submit an electronic and hard copy to the department.

(2) The sponsor must develop the instrument using feedback from the department, the IRT, and comments received during the prospectus phase.

(3) The draft instrument must contain all of the information identified in WAC 173-700-222 to be complete.

(4) After receiving the draft instrument, the department shall determine whether the instrument is complete and notify the sponsor within 30 days. If the draft instrument is not complete, the department shall notify the sponsor in writing of its determination and identify any additional information that is necessary to complete the instrument. Once a modified draft instrument is submitted, the department must notify the sponsor as soon as it determines that the draft instrument is complete.
173-700-225 Review of the draft instrument.

(1) Upon receipt of notification by the department that the draft instrument is complete, the sponsor must provide an electronic and a hard copy of the complete draft instrument to each member of the IRT.

(2) The IRT will have 30 days to comment on the draft instrument to the department. The 30 day comment period begins 5 days after the department receives its copy of the complete draft instrument as described in subsection (1) of this section.

(3) Following the comment period, the department will discuss any comments with the appropriate agencies and the sponsor. The department will:

(a) Notify the sponsor of the recommendations and comments received from the IRT;

(b) Identify any additional information that the sponsor must submit; and

(c) Identify additional terms and conditions required as part of the certification.

(4) If the department requests additional information, the certification process shall stop until the requested information is received.

(5) Within 90 days of receipt of the complete draft instrument by the IRT members, the department must notify the sponsor of the status of the review. Specifically, the department must indicate to the sponsor if the draft instrument is generally acceptable and what changes, if any, are needed.

(6) The department will seek to resolve concerns using a consensus-based approach, to the extent practicable.

(7) If there are significant unresolved concerns that may lead to a formal objection from one or more IRT members to the final instrument, the department will indicate the nature of those concerns.
173-700-230 Submittal of the final instrument.

(1) The sponsor shall submit a final instrument to all members of the IRT in electronic and hard copy format for approval by the department.

(2) The final instrument must contain the items listed in WAC 173-700-222, in addition to other supporting information as required by the department. This supporting information may include, but is not limited to:

(a) An explanation of how the final instrument addresses the comments provided by the department and the IRT;

(b) Financial assurance documents;

(c) Legal mechanisms for the permanent protection of the bank site; and

(d) Hydrologic and other ecological studies.

(3) Within 30 days of receipt of the final instrument, the department shall provide public notice on the proposed certification.

(4) At the end of the public comment period, the department shall direct the sponsor to incorporate changes as needed based on the comments received. After incorporating the required changes, the sponsor shall submit the revised instrument to the department.

(5) Within 30 days of receipt of the revised instrument, the department notifies the local jurisdiction(s) of its intent to approve or deny the certification. If the department intends to certify the bank, it will request a decision on certification from the local jurisdiction(s).

(6) The local jurisdiction(s) reviews the intent to certify, determines whether it concurs with the certification, and notifies the department in writing.

(a) If the local jurisdiction(s) does not concur with the intent to certify, the notice shall state the reasons for the local jurisdiction’s decision.

(b) The department shall not certify the bank if the local jurisdiction(s) does not concur with the certification.

(c) If the local jurisdiction(s) concurs with the intent to certify, the notice shall state the local jurisdiction’s intent to sign the instrument.

(7) After receipt of the local jurisdiction’s decision, the department must send a notice on its certification decision to the IRT.

(8) Within 15 days of receipt of the certification decision, if no IRT member objects by initiating the dispute resolution process, the department will notify the sponsor of the final decision. If the instrument is approved, the sponsor will arrange for it to be signed by the appropriate parties.



173-700-231 Signatories of the instrument.

An instrument must contain signatures from the department, the local jurisdiction(s), and the sponsor for certification to be complete.

(1) Signature on the instrument shall indicate that entity’s concurrence with the terms and conditions of the instrument.

(2) No agency, except for the department and the local jurisdiction(s), is required to sign an instrument in order for certification to be complete.

(3) IRT member agencies and tribes are encouraged to sign the instrument.
173-700-232 Dispute resolution process.

An IRT member(s) who has concerns with a particular decision or element of an instrument shall submit the concern and accompanying rationale in writing to the chair(s) of the IRT within 15 days of the decision. The following dispute resolution process for resolving concerns shall be used:



  1. The chair(s) of the IRT shall outline the majority position on the area of concern and shall work with the IRT member(s) to develop potential solutions to those concerns.

  2. The department shall make every effort to resolve concerns within the IRT before the conflict is elevated to the program manager of the department’s Shorelands and Environmental Assistance Program.

(3) In the event that the IRT is still unable to reach consensus, within 30 days of receipt of the concern by the department, the IRT member with the concern may request, through written notification, that the department’s program management review the issue. The written notification must be directed to the program manager of the Shorelands and Environmental Assistance Program or the program manager’s designee. Such a notification must include:

  1. A detailed description of the issue; and

  2. Recommendations for resolution.

(4) Within 30 days of receipt of a notification, the program manager or designee shall contact the IRT member with a final decision on the resolution. The resolution shall be forwarded to the other IRT members.

173-700-233 Review timelines.

(1) When additional information or changes to documents are requested by the department, the review timelines shall stop until the requested information is received. If the requested information is not received by the department within 180 days, the department has the option of cancelling the certification process. If the certification process is cancelled, the sponsor may apply to restart the certification process.

(2) The timelines in WAC 173-700 212, 173-700-225, and 173-700-230 may be extended by the department at its sole discretion in cases where:

(a) It is necessary to conduct government-to-government consultation with affected tribes;

(b) Timely submittal of information necessary for the review of the proposed bank is not accomplished by the sponsor;

(c) Information that is essential to the department’s decision cannot be reasonably obtained within the specified time frame; or

(d) Other permits or authorizations needed for certification cannot be completed within the specified time frame.

(3) In such cases, the department must promptly notify the sponsor in writing that the review timelines have stopped or have been extended, with an explanation of the reason. Such extensions shall be for the minimum time necessary to resolve the issue.


173-700-240 Public notices.

(1) It is the department's goal to ensure that accurate information on the prospectus and the proposed bank certification is made available to the public, and to avoid duplicative processes for public comment.

(a) When an existing public notice process is available to solicit public comment, the department shall strive to provide a joint public notice.

(b) When an existing public notice process is not available, the department shall issue a public notice.

(2) A public notice comment period must be at least 30 days.

(3) If the department holds a public hearing, the comment period may be extended to one week after the hearing date.


173-700-241 Notification on the prospectus and proposed certification.

At a minimum, the department shall notify the following entities:

(1) The local jurisdiction(s) where the bank site is located;

(2) Tribal governments located within the proposed service area;

(3) The latest recorded real property owners, as shown by the records of the county treasurer, located within:

(a) 300 feet of the contiguous boundaries of the proposed bank property; or

(b) The distance from the property boundary as specified in local regulations.

(4) The general public within a bank’s proposed service area through:

(a) A published notice in a newspaper of general circulation in the service area of the proposed bank and in other counties as deemed appropriate;

(b) A notice posted by the sponsor in a conspicuous manner on the proposed bank property which is consistent with local regulatory requirements and adjacent to a public right-of-way; and

(c) A notice posted on the department’s website.

(5) Other interested persons and organizations that have requested information on bank certifications, and all others deemed appropriate by the department.


173-700-242 Public hearings.

(1) The sponsor, any interested government entity, any group, or any person may request a public hearing on the bank certification.

(2) The written request must be received by the department before the end of the comment period.

(3) Any request for a public hearing shall indicate the interest of the party filing it and why a hearing is warranted.

(4) The department shall determine, in its sole discretion, if significant public interest exists to hold a public hearing.

(5) The department shall provide at least 14 days notice prior to any hearing.



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