February 2024 Knowing the Waters - ILA Planning
By Frank Chmelik and Tim Schermetzler[1] of CSD Attorneys at Law P.S. - WPPA Counsel
In communities across the State, port districts are working on significant projects that benefit their communities such as expanding broadband service, marina improvements, development of marginal lands into business parks, to name a few. Ports are uniquely situated to lead and collaborate on many of these projects because of ports’ power to conduct economic development, promote tourism, create recreation facilities, and advance industrial development. Ports’ ability to leverage grant funding and favorable financing to accomplish these types of projects often puts ports in a different, and perhaps more advantageous, position relative to private developers.
However, like many private developers, port projects can get delayed in the permit application review process. While there are many factors that can impact permit review timeframes, one factor contributing to delays that many cities and counties have expressed since emerging from COVID-19 is limited staffing resources available to handle the high volume of permit applications. This month’s column discusses legal tools available to ports to collaborate with permitting agencies to minimize the delays caused by staffing and resource constraints.
The Washington State Constitution, Article 11, § 11 gives counties, cities, towns, and townships the authority to make and enforce development and building regulations. Following on that, the state legislature adopted statutes defining the regulatory authority of these municipalities in the Planning and Enabling Act, Chapter 36.70 RCW, Local Project Review, Chapter 36.70B, and enabling statutes for cities and towns in Titles 35 and 35A RCW. The legislature did not grant ports regulatory authority over development and building regulations of port projects. Listed below are a few legal tools for port districts to work in cooperation and coordination with permitting authorities to expedite review of a port’s permit applications.
1. Interlocal Agreements. Ports can enter interlocal agreements with local permitting authorities to expedite review of port development projects. Ports and the local permitting authorities usually have a common interest in providing prompt permit processing. These initiatives and projects ultimately serve the entire community, through economic development, recreation, tourism, and industrial development, among other things. One thing to keep in mind when entering interlocal agreements is the True and Full Value Test – RCW 43.09.210 requires that when anything of value changes hands between government, the exchange must result in “true and full value” for each government. “True and full value” is a broader concept than fair market value. Washington’s attorney general has described it as a flexible concept that can consider a wide variety of factors.[2] When considering those factors, however, one must ensure they are set forth in the record. This record could be made in the adopting resolution and in the interlocal agreement itself.
2. Port Lead Agency for State Environmental Policy Act. While ports do not have broad regulatory authority to issue development and building permits, ports are statutorily empowered to act as their own lead agencies under the State Environmental Policy Act (“SEPA”). A port can reduce some of the permit entitlement review tasks otherwise handled by a local permitting authority by conducting its own SEPA review under Chapter 43.21C RCW. To act as a lead agency, a port must adopt its own SEPA policies and procedures by resolution and identify a responsible official to undertake the procedural responsibilities of a lead agency. Additionally, when a port is the lead agency, but another government agency has jurisdiction under SEPA, such as a city with permitting authority over a project, then the two governments may share or divide the responsibilities of lead agency.[3] Such an agreement between the port and another government agency would likely be in the form of an interlocal agreement, as previously discussed.
3. Federal Regulatory Solutions. Many port projects are subject not only to local and state permits, but also federal permits with reviews from a variety of federal agencies such as the U.S. Army Corps of Engineers (“USCOE”), the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (USFWS). In 2022, in coordination with the WPPA and Northwest Seaport Alliance (NWSA), a group of port districts negotiated an agreement with NMFS and USFWS to support up to two staff biologists who work at NMFS but are assigned to study and evaluate participating port district projects for compliance with applicable federal statutes and regulations administered by those federal agencies. The purpose of the agreement was to increase coordination, streamline the consultation process, and provide early project-level planning assistance and expedite permit issuances. The agreement with NMFS and USFWS is a good example of how WPPA can work with ports on creative solutions to address permitting and regulatory issues involving port projects.
The above legal tools are not an exhaustive list of the options ports may seek to expedite permitting and regulatory issues. Often other actions, such as setting up periodic coordination meetings between port planning staff and planning staff from the county or city, may result in significant efficiencies in processing permits and coordinating broader development plans in the community.
As always, please contact your port’s counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters please email us at fchmelik@csdlaw.com or tschermetzler@csdlaw.com.
[1]Tim Schermetzler is a principal in CSD Attorneys at Law, a 2015 graduate of Gonzaga Law School and a member of the firm’s Port Practice Group. He works with Frank Chmelik as WPPA general counsel.
[2] See, AGO 1997 No. 5.
[3] WAC 197-11-944