28-9401. Major rail project; review; fee; fund; hearing; exception; definitions

A. If a railroad has identified a route or site or identifies a preferred alternative route or site for a major rail project, the railroad shall provide to the department a full disclosure of information as to any alternative sites or routes the railroad has examined and a full disclosure of the following information:

1. The nature of the project, including the infrastructure required and the anticipated scope of activity to be associated with the project once it is operational.

2. Whether the project is consistent with local government comprehensive and general plans and any state or federal resource management plans.

3. Whether prime and unique agricultural land areas will be affected or are designated as important by state, local or tribal agencies.

4. An evaluation for compatible land use due to opposing functional needs or encroachment tendencies.

5. An evaluation of the impact, proximity, availability and access to state parks or environmentally sensitive areas.

6. Whether local groundwater resources, wells or river allocations will be used, including any possible subsidence problem, the availability of potable water for the project, whether the project has a water adequacy report, if applicable, or service agreement from a municipality or private water company or whether the project will be providing a new water system and treatment facilities.

7. An evaluation of the area for depth to groundwater from the land surface.

8. An evaluation of the area for on-site groundwater seepage or springs that may indicate potential drainage problems or impacts to the groundwater source, including evidence of impoundment of water on the project area and whether the project will significantly add to an impervious land surface and increase demands on drainage facilities.

9. An evaluation of the project for potential impacts to any groundwater source, surface water source or water delivery system.

10. Whether there is adequate road access, capacity and design, and whether the project will contribute to congestion at intersections or cause visual obstructions of traffic or transportation corridors.

11. Whether the project is within an attainment area or a nonattainment area for which the United States environmental protection agency has approved the state implementation plan and whether the project will induce air pollutant concentrations.

12. The maximum noise level for the closest sensitive noise receptor.

13. An evaluation of the potential exposure to hazards from the project, including the transportation, storage or other accommodation of pesticides, sanitary and toxic waste, toxic chemicals, radioactive materials, explosives, flammable or fire prone materials.

14. The amount of any additional costs the railroad may incur if the proposed rail project is moved to an alternative location.

B. The railroad shall not commence any eminent domain proceeding with respect to a major rail project until after the review process provided for in this section is completed. The department shall begin a review of the project immediately after the railroad submits the notice with the disclosure and assessment of information required by this section.

C. The department may contract with a consultant or consultants to assist in its review of the information provided by the railroad.

D. The department shall hold at least one, and not more than three, public hearings within one hundred twenty days after receiving the information required by this section from the railroad and shall record public comments on the proposed rail project. The department shall forward the comments to any federal, state or local regulatory bodies that may have oversight on the proposed project. All information received by the department from any source relating to a rail project is a public record pursuant to any state or federal law as required or as necessary.

E. The hearing and review process shall be completed by the department within one hundred twenty days after receiving the information from the railroad pursuant to subsection A. The review process is not subject to administrative appeal.

F. The department may assess and collect fees from the proponent of the railroad project for the purposes of this section. The railroad review fund is established consisting of fees collected by the department pursuant to this subsection. The department shall administer the fund. Monies in the fund are continuously appropriated to the department for the purposes of this section and do not revert to the state general fund pursuant to section 35-190. In determining the amount of the fees, the director may consider factors including the cost of consultants, the review process and hearings. The department shall refund to the railroad any unused portion of the fees collected.

G. This section does not apply if the potential or identified sites or routes are for a mutual rail project evidenced by a writing between the railroad and this state including any adopted state or regional transportation plan.

H. This state is not liable for any actions taken in compliance with this section.

I. For the purposes of this section:

1. " Critical infrastructure" means any infrastructure that if damaged or impacted would weaken or threaten the integrity of homeland security in this state or the United States in whole or in part.

2. " Major rail project" means a substantial project by a railroad to build or relocate any rail yard, rail switching facility or railroad tracks. Major rail project does not include routine rail maintenance, upgrade or repair projects or the addition of spurs to serve existing or new customers.

3. " Mutual rail project" means a rail project, including a light rail or commuter rail project, in which this state is involved through an adopted state or regional transportation plan in the planning, preparation and construction through the use of state resources. Notwithstanding state land sale or lease processes, the mere sale or lease of state trust or sovereign land alone does not constitute a mutual rail project unless the sale or lease is part of a rail project in which this state is involved through an adopted state or regional transportation plan in the planning, preparation and construction through the use of state resources and that rail project is specifically for a light rail or commuter rail line.