Puget Sound Partnership Mid-Term Legislative Update, March 24, 2017


March 24, 2017

The Puget Sound Partnership's Legislative Update highlights issues related to our region's work to protect and recover Puget Sound.

2017 Session Cutoff Dates

  • Policy Committee Cutoff: Friday, February 17
  • Fiscal Committee Cutoff: Friday, February 24
  • House of Origin Cutoff: Wednesday, March 8
  • Policy Committee Cutoff, Opposite House: Wednesday, March 29
  • Fiscal Committee Cutoff, Opposite House: Tuesday, April 4
  • Opposite House Cutoff: Wednesday, April 12
  • Last day of regular session: Sunday, April 23


If you have questions or concerns about the legislative priorities for the Puget Sound Partnership, please contact: Jeff Parsons, Legislative Policy Director, 360.999.3803


Partnership’s agency request bill advances

Rep. Dick Muri (R-Distr. 28) introduced the Partnership's agency request bill HB 1121 at the beginning of this session. The bill reduces the frequency of Action Agenda and Science Work Plan updates from once every two years to once every four years. With a vote of 75-22, the House passed a slightly modified substitute version of the bill on February 13. Sen. Shelly Short (R-Distr. 7) has helped us shepherd the bill through the Senate. On March 9, the bill received a public hearing in the Committee on Energy, Environment & Telecommunications, progressed immediately to executive session, and by unanimous vote passed to the Senate Rules Committee, where it awaits scheduling for action on the Senate floor.

Budget negotiations loom

Budget committees in both houses of the Legislature are developing their own versions of operating and capital budgets. A key piece of information for budget development arrived on March 16 when the State Revenue Forecast was released. The revenue forecast for the state General Fund increased by $247 million for the 2015-17 biennium and by $303 million for the 2017-19 biennium. Although this doesn’t solve all of the state’s revenue problems or meet the demands of the McCleary decision, it does improve the situation marginally.


The Senate Operating Budget proposal, released March 21, eliminates $907,000 included in the Governor’s Operating Budget (SB 5048/HB 1067) that would have funded the following critical staff positions at the Partnership:

  • Senior Planning Manager position and contract support to facilitate Action Agenda updates
  • Salmon Recovery Manager position
  • Puget Sound Ecosystem Monitoring Program (PSEMP) Manager position

The Senate budget cuts an additional $458,000 from the Partnership’s current budget level—a 3 percent decrease from current levels, which would only exacerbate the difficulties caused by proposed cuts of federal funding for Puget Sound recovery.


The House Operating Budget and the Senate Capital Budget are expected early next week.


The Governor’s Capital Budget (SB 5086/HB 1075) includes the following funding priorities supported by the Partnership:

  • $50 million for the Puget Sound Acquisition and Restoration program
  • $10 million for the Estuary and Salmon Restoration Program
  • $20.3 million for the Floodplains by Design program
  • $80 million for the Salmon Recovery Funding Board grant program, including $30 million in state funds and $50 million in expenditure authority for federal funding not yet appropriated by Congress
  • $19.7 million for the Fish Passage Barrier Removal Board (the Governor’s Transportation Budget includes $97 million for removal of fish passage barriers)
  • $50 million for the Stormwater Financial Assistance Program, including $30.1 million to restore 2016 budget cuts and $19.9 million in new funding. The Governor’s Capital Budget also allocates $38.9 million for delayed projects.

Governor’s Revenue Package

The following bills have been introduced as the major components of the Governor’s revenue package needed to support his budget requests. None have passed either house so far, but all such budget-related bills are exempt from the Legislature’s cutoff deadlines.

  • HB 1550/SB 5113: Business & occupation tax/education
  • HB 1555/SB 5127: Carbon pollution tax
  • HB 1730/SB 5111: Capital gains tax

Bond Capacity

One of the many problems facing budget writers this year is the school funding challenge. In recent elections, local school districts passed school construction levies that require $365 million more matching money from the state than is usual.  This reduces the amount of money available for all other types of capital projects, like salmon habitat restoration and protection projects.


To free up more bond capacity for other construction-related capital projects, Rep. Drew McEwan (R-Distr 24) sponsored SHB 1694 in the House. The bill would authorize $250 million in special revenue bonds backed by lottery revenues to address public school construction, and it would transfer $290 million from the Budget Stabilization Account to offset the impacts of the special revenue bonds on the operating budget and to bolster school construction funds.


Fish habitat protection tool awaits action

The Department of Fish and Wildlife (WDFW) is seeking legislative reauthorization to collect fees to cover the cost of processing of Hydraulic Project Approval (HPA) permits. The bill also eliminated an HPA permit exemption for single-family residences. The exemption currently allows construction of shoreline bulkheads that harm nearshore habitat without a permit.


A person must obtain a Hydraulic Project Approval (HPA) prior to commencing any construction project that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state. Hydraulic Project Approvals are issued by the Washington Department of Fish and Wildlife (WDFW) to ensure the proper protection of fish life. To receive an HPA, the applicant must provide certain information to the WDFW. This information includes general plans for the overall project and complete plans for the proper protection of fish life.


HB 1428 passed the House Agriculture & Natural Resources Committee, but the committee changed the bill to reinstate the single-family HPA permit exemption. The revised bill now awaits action in the House Appropriations Committee. The Senate companion bill, SB 5466, has not progressed out of the Senate Natural Resources & Parks Committee. Because of its budget implications, this legislation is exempt from the cutoff deadlines.


Another bill, SB 5228, as introduced, would have limited the WDFW’s HPA jurisdiction to projects at or below the normal high water mark. We expressed concern that this could exempt from review some high-impact projects like bulkheads and levees.


A substitute version of this bill – SSB 5228 – creates a joint legislative task force to review issues relating to HPA jurisdiction, including current law, current and historical practices by WDFW, and alternative approaches. The bill stipulates that the task force must consist of four members, one from each caucus of the Senate and House of Representatives, as well as the Director of WDFW or a designee. The legislative members must appoint additional members who represent stakeholders, including business, local government, agricultural, and conservation interests. The members must also request representation from interested tribes. The task force must summarize its work and provide any recommendations to the Legislature by October 1, 2017.


SSB 5228 passed the Senate and received a public hearing in the House Agriculture and Natural Resources Committee on March 21.

Water resources legislation responds to Hirst decision

A series of court decisions over the past 20 years have reduced the flexibility of state and local governments to balance competing needs of water users in Washington State. Most recently, in the 2016 Hirst decision (Hirst, Futurewise, et al v. Whatcom County), the State Supreme Court ruled that the county had failed to comply with the requirements of the Growth Management Act to protect water resources and must make an independent determination of water availability that ensures new permit-exempt uses of water won’t impair instream flows. Because they lack the capacity to make these kinds of independent determinations, several counties have instituted moratoria on new building permits for properties otherwise dependent on a permit-exempt well for their water availability.


A number of bills have been introduced this session to address the impacts of the Hirst decision and other related court decisions. Some of these bills would reduce protections for instream flows, thereby adversely affecting fish populations. Others attempt to achieve a balance among competing water users. The Legislature is considering the following water resources bills. All are “works in progress,” and all have elements of concern to the Department of Ecology, which is responsible for managing the state’s water resources, including setting minimum levels for instream flow.

  • HB 1885 clarifies the roles of state and local governments in regulating and mitigating water resources. The bill passed out of the House Agriculture and Natural Resources Committee and is now in the House Appropriations Committee.
  • HB 1918 addresses treatment of groundwater under state water codes to support rural development while protecting instream flows. The bill passed out of the House Agriculture & Natural Resources Committee and is now in the House Appropriations Committee.
  • SB 5010 promotes water conservation by protecting certain water rights from relinquishment. This bill passed the Senate on a vote of 27 to 22 and is now in the House Agriculture & Natural Resources Committee.
  • E2SSB 5239 ensures that water is available to support development. This bill passed the Senate on a vote of 28 to 21 and is now in the House Agriculture & Natural Resources Committee.

Legislation seeks to strengthen oil transportation safety

The Department of Ecology has requested passage of legislation to increase the so-called barrel tax, a tax on petroleum products that funds the agency’s Spill Prevention Program.


The House version of this legislation, HB 1210, passed out of the House Finance Committee and awaits action in the House Rules Committee. The Senate companion to this bill, SB 5425, failed to move out of the Senate Energy, Environment & Telecommunications Committee.  


Two other bills are intended to strengthen the state’s ability to prevent oil spills in the marine environment:

  • SHB 1611 includes the barrel tax increase as proposed in HB 1210 and SB 5425. The bill passed out of the House Environment Committee and is scheduled for executive action in the House Finance Committee on March 24.
  • SB 5462 received a public hearing in the Senate Energy, Environment & Telecommunications Committee, but remains in that committee.

Legislation seeks to restore declining Model Toxics Control Act funding

The state Model Toxics Control Act (MTCA), carried out by the Department of Ecology (Ecology), aims to ensure cleanup of sites where hazardous substances have been released. The purpose of MTCA is to raise sufficient funds to clean up all hazardous waste sites and to prevent the creation of future hazards due to improper disposal of toxic wastes into the state's land and waters.


Last year, due to declining revenue from MTCA, the Legislature cut more than $30 million from previous appropriations to the Stormwater Financial Assistance Program and other stormwater programs. The Public Participation Grants Program was also defunded.


To restore these funds, the Department of Ecology has requested passage of HB 1663/SB 5501, which would place a surcharge on the Hazardous Substance Tax. The surcharge would stabilize funding for high-priority stormwater pollution prevention projects, as well as for important hazardous waste cleanups and other pollution prevention programs.


The House Finance Committee passed HB 1663, which is now with the House Rules Committee; SB 5501 failed to move out of the Senate Energy, Environment & Telecommunications Committee. 


MTCA is funded by a 0.7 percent tax on the wholesale value of hazardous substances, cost recovery from remedial actions, mixed waste fees, and to a lesser extent fines, penalties, and other charges. Under MTCA, Ecology is directed to investigate, conduct remedial actions, enforce actions to protect human health, and provide technical and administrative assistance.


SSB 5170 exempts a person conducting independent remedial actions from certain procedural and permitting requirements. Ecology is not required to ensure that the substantive permit requirements are met for independent remedial actions. Ecology opposed the original bill because neither Ecology nor other state and local permitting agencies could ensure appropriate regulatory oversight, public involvement, and environmental review.


The bill passed the Senate on a vote of 25 to 24 and is now with the House Environment Committee, where it had a public hearing on March 20. It is scheduled for executive session March 27.

Land use legislation may affect stormwater regulations

ESB 5212 concerns the scope of land use control ordinances for purposes of vesting. Vested rights in the context of land use law refers to the legal rights of an owner to use their property in accordance with the laws and regulations in effect on a certain date.


The bill amends the state’s building permit vesting statute to stipulate that a building permit must be considered under the environmental and development regulations, as well as the building and zoning or other land use control ordinances, in effect on the date of application. The same applies to applications for preliminary plat approval of a subdivision or short plat approval of the short subdivision.


The bill also amends the state’s subdivision vesting statute to add that a proposed division of land shall be considered under the environmental and development regulations, as well as the subdivision or short subdivision and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision, or short plat approval of the short subdivision, has been submitted to the appropriate official, without respect to whether the regulation or ordinance was enacted for the purpose of complying with state law.


The bill passed the Senate on a vote of 25 to 24 and is now with the House Judiciary Committee, where it received a public hearing on March 15.


According to Bruce Wishart, testifying in opposition to the bill on behalf of the Puget Soundkeeper Alliance, this bill is “designed to overturn a recent Supreme Court decision, which made clear that vesting laws do not apply to a federal Clean Water Act permit. [The Puget Soundkeeper Alliance] spent about eight years working with many of the stakeholders before the permits at issue were adopted.”


We testified at a public hearing on this bill in the House Judiciary Committee, expressing concern about the potential for this bill to reduce the state’s ability to prevent pollution from stormwater, which contributes 75 percent of the pollution entering Puget Sound.

Legislation introduced to help prevent pollution from onsite sewage systems

Two years ago, the Partnership supported a Department of Health agency-request bill that would have established a fee to be paid by owners of onsite sewage systems (OSS). The money would have paid for OSS management programs at county public health departments. These programs were to provide inspections of onsite sewage systems and identify those that needed repair or replacement. The fee was eliminated from the bill and the bill failed to pass. This year several bills addressing onsite sewage system management are moving through the Legislature:


ESHB 1503 specifies that the Growth Management Act (GMA) does not preclude counties from authorizing OSS self-inspections by homeowners, their tenants, or their family members upon completion of county certification requirements. The authority of counties to authorize OSS self-inspections does not eliminate the requirement that counties protect water quality consistent with the obligations imposed by the land use and rural elements of the GMA. The bill passed the House on a vote of 91 to 6 and received a public hearing in the Senate Local Government Committee on March 21.


SHB 1683 stipulates that counties, cities, and utilities that have adopted a capital facility plan or utilities element to provide sewer service within an Urban Growth Area (UGA) during a 20-year planning period are not obligated to install sanitary sewer systems to certain properties within the UGA before the end of the planning period. The properties within a UGA that are not required to be served by sanitary sewer systems must meet either of the following criteria:

  • Have no redevelopment capacity and have an existing, functioning, non-polluting OSS that receives periodic inspection by a public agency to verify proper functioning
  • Not require sewer service as a result of development density limitations due to wetlands, floodplains, habitats, or geological hazards.

The bill passed the House on a vote of 97 to 0 and received a public hearing in the Senate Local Government Committee on March 16.


EHB 1476 requires that local health jurisdictions (LHJs) in the 12 counties bordering Puget Sound update OSS program management plans developed in 2007 and continue to submit updates to the Department of Health for approval at least once every five years. Among other things, the LHJs must track the failure rate of septic designs and technologies, take steps to identify previously unknown OSS and to inspect known OSS, and incorporate elements to prevent injury or death caused by unsafe OSS.


The bill passed the House on a vote of 72 to 25 and received a public hearing in the Senate Local Government Committee on March 21.


ESSB 5281 stipulates that rules adopted by the State Board of Health for small onsite seweage systems must not require the following:

  • A use permit that is conditioned with a requirement for a monitoring contract between a private company and an individual
  • Dedicated easements for the inspection, maintenance, or potential future expansion of a system
  • Replacement of an existing system if a repair returns the system to its previously permitted or original functioning state

Local jurisdictions, officers, and employees who enforce rules adopted by the Board must comply with the same rule limitations.


The Washington State Department of Health expressed concerns about this bill. It may reduce local health officers' abilities to ensure onsite sewage systems are appropriately operated and maintained. Limiting oversight could lead to reduced water quality, especially by removing the ability of local health officers to require replacement of systems that, even if repaired to original functioning condition, may not adequately protect groundwater from contamination. Onsite sewage technology has advanced in recent years, and the bill could allow an older systems to be repaired to an outdated, inadequate treatment technology.


The bill passed the Senate on a vote of 29 to 20 and is now with the House Environment Committee, where it received a public hearing on March 21.

Striking amendment would have threatened aquatic reserves

The Senate Energy, Environment & Telecommunications Committee conducted a public hearing on a proposed striking amendment to HB 1001, concerning utility easements on state-owned aquatic lands. The original bill passed the House unanimously and did not negatively affect Puget Sound recovery and protection. However, the proposed striking amendment would have weakened aquatic reserves as a tool for Puget Sound recovery. As proposed, the amendment requires specific legislative approval before the Department of Natural Resources may designate, establish, or enlarge an aquatic reserve. It also directs the Commissioner of Public Lands to rescind a January 3, 2017, action expanding the Cherry Point Aquatic Reserve.


Aquatic Reserves are an important tool for Puget Sound recovery and protection. They prevent incompatible uses of important state-owned aquatic habitat, such as the critical salmon habitat of the Nisqually Reach, Puget Sound’s largest kelp bed, now protected as part of the Smith and Minor Islands Aquatic Reserve, and the nearshore habitat of the Cherry Point Aquatic Reserve, once home to Puget Sound’s largest herring population. That population has declined by more than 90 percent since the earliest sampling date in 1973.


Fortunately,the Senate Energy, Environment & Telecommunications Committee moved the original bill out of committee without the striking amendment.