APRIL 2022

Knowing the Waters

By Frank Chmelik of Chmelik Sitkin & Davis, P.S. - WPPA Counsel and Chris Herman - Senior Director, Trade & Transportation - WPPA

This month we look at RCW 47.06A.080, law affecting ports with freight-focused transportation projects. I must say it is a new statute to me and one that Chris Herman, WPPA staff, has been thinking about as port districts move forward with both state and federal grant applications for transportation projects. Chris is joining me on this month’s edition of Knowing the Waters. The stakes are high, $100 billion is available in discretionary federal funding through the Infrastructure Investment & Jobs Act (IIJA) aka the Bipartisan Infrastructure Law (BIL). Furthermore, federal earmarks are back. Community Project Funding/Congressionally Directed Spending have more criteria than historical earmarks including the requirement for projects to be referenced in a local or state planning document. We will discuss the statute and propose a compliance strategy so that your port does not get disqualified for transportation project grants.

Here is the background.  RCW 47.06A.080 is buried deep in Title 47, which applies to the Washington State Department of Transportation (WSDOT) and in Chapter 47.06A, which addresses freight mobility.  It has been around since the inception of the Freight Mobility Strategic Investment Board (FMSIB) and, we think, largely ignored, since 1998.  It requires that port districts “submit their development plans to the relevant regional transportation planning organization or metropolitan planning organization, the department, and affected cities and counties to better coordinate the development and funding of freight mobility projects.”

Throughout the state there are regional transportation planning organizations (RTPO’s) or metropolitan planning organizations (MPO’s) which function to provide a regional coordinated approach to transportation projects.  Typically, the RTPOs or MPOs produce multiyear transportation improvement plans (TIP’s).  Many port districts have representatives on their local RTPO or MPO, although governance, staffing and capacity vary widely across the state.

Here is the issue.  Recently WSDOT, USDOT and federal appropriators have disqualified applicants for grant funding for projects not documented in state or regional plans. One way to overcome this is by submitting development plans as required in RCW 47.06A.080.

A “Best Practice” on CSHIs.  All port districts are required to adopt and maintain Comprehensive Schemes of Harbor Improvements (“CSHI”). The detail in ports’ CSHI varies widely.  Some CSHI’s are very detailed and others not so much.  In any event, we know that Washington courts have indicated that the CSHI is actually a “compendium” of documents including capital budgets, strategic plans and actual CSHI’s.  The idea is to inform the public of port’s plans.  RCW 53.20.010 provides that a CSHI can be amended after a “public hearing thereon, of which notice shall be published once a week for two consecutive weeks in a newspaper of general circulation in the port district.”  This is exactly the same notice and public hearing process needed to adopt a budget in RCW 53.35.020.  Therefore, ports have been advised for a number of years that a “best practice” for port districts is to provide one notice of a public hearing to both (a) adopt the budget (including a capital budget) and (b) incorporate that capital budget into the port’s CSHI.

Here is the “‘compliance strategy.”  The “compliance strategy” comes in two parts.  First, add to the CSHI “best practice” by publishing the required notices and hold a public hearing to (a) adopt the budget (including the capital budget), (b) adopt a (transportation)[1] development plan and (c) incorporate that capital budget and the (transportation) development plan into the port’s CSHI.  Second, send the (transportation) development plan to the applicable RTPO or MPO, WSDOT and affected cities and the county.  Apply the same rule we apply in legal notices – “when in doubt send a copy to everyone” and send it “certified mail return receipt requested.”  As far as we know, the best address for WSDOT is included below. Given that the statute also specifies freight projects, it may be helpful to also copy FMSIB, although surprisingly, the statute does not specifically include the funding board as a recipient.  

We note that RCW 47.06A.080 only requires “notice” and does not require the RTPO or MPO to incorporate the port’s development plan in the TIP – notice is all that is required.  However, a port district may consider working with the RTPO or MPO to actually have the plan, or projects within the plan, referenced in the TIP.

Send notice to:

Washington State Department of Transportation

310 Maple Park Avenue SE

P.O. Box 47300

ATTN: Rail, Freight & Ports Division

Olympia, WA 98504-7300

Again, thank you to Chris Herman at the WPPA.  He is the expert here.

As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters, please email me at fchmelik@chmelik.com.

[1] The statute says “development plans” but given the context this likely refers to development plans that have a transportation component.  When in doubt, the “best practice” is to include it.