March 16, 2020
My well-developed sense of cynicism aside, I am pleased the 2020 Legislative Session has ended with Sine Die proclaimed after 8:00 pm on March 12. I have read of rumors there will be a possible emergency session at some undefined time. That aside, I have not experienced a more disheartening session since we began our lobbying efforts in 2015. A sense of corruption, weakness, and agenda building permeates our state capitol.
Chaos in managing the electronic communication systems resulted in a delay of correct and current information availability for lobbyists, legislators, and the public in general. There were too often times when the tradition of at least 24 hours’ notice for public hearings on bills did not occur. This was chalked up to overloading existing staff. Often bills were heard for public hearing and even in executive hearing without the benefit of a bill report or a fiscal note presented to the public prior to hearings. I believe the staff was overwhelmed, but I also believe there was a certain reckless carelessness and lack of concern on behalf of the majority party in pushing through as many bills as humanly possible regardless of the results of doing so. At the same time, the minority party did little to intervene to improve this situation. At some point in time consideration for an orderly process and public transparency should take a priority in the legislature allowing for and encouraging more public involvement in law making.
I provide a list of bills that were of interest to CAPR and which I worked through various means; public comment, emails, phone calls, and personal visits to legislative offices.
Firstly, our work to reform administrative law was presented in the form of three bills:
Senator Phil Fortunato SB 6572, Concerning uniform due process of land use code violations, was a well written bill which covered all we could have hoped for in the fight to prohibit anonymous land use code enforcement complaints and the damages to the right of due process, because of perpetual endless fine and fee practices related to anonymous complaints. The practice of anonymous land use code enforcement complaints often results in tens of thousands of dollars spent in attempts to comply with codes and eventual attorney fees. I worked the bill hard prior to getting a public hearing and gained little traction in the present legislative environment. I am prepared to continue this fight with the help of CAPR members to bring attention to this issue, which has been particularly harmful in King county, but also a problem in other counties. We did at least get a public hearing, but that was as far as the bill progressed. Senator Fortunato, myself, and two articulate CAPR members suffering loss of business and productivity because of the complications leading from the anonymous complaint practices in King County, one who has suffered for years expending money, time, and productivity with no end in sight each testified in committee. The testimony was impressive and impactful. The committee listened politely and then dropped the subject. The good thing is we now have the concept in written bill form which has passed muster with the code reviser and we can use the bill for future sessions. If you have a story of your own please share it with CAPR so we can continue the work on this issue, legislators need to know the serious problems of anonymous land use code enforcement.
Senator Holy sponsored SB 6315, Concerning enforcement of the policies of the department of ecology, was an iteration of CAPR’s original administrative law bills. It is encouraging our concept of administrative law reform is still alive, perhaps we can gain traction if a balance of ideals can be restored in one or both houses of the legislature. I am sure all citizens suffer the ill effects of the over-reach of agencies through rulemaking and policy in their application of administrative law in one form or another.
Senator Wagoner sponsored a SB 6227 Concerning the burden of proof in disputes involving enforcement actions by certain regulatory agencies. The bill had a first reading but did not progress to a public hearing. This was a good bill and I hope it can be introduced again next session. It is self-evident the bill is needed to rein in agency actions.
Secondly, bills to protect consumers and producers were heard but did not pass, this included the “fake meat” bill, HB 2696 Concerning the misbranding of meat and poultry products. The bill made it to the rules committee, but never made it to the floor. This was the second session the idea behind the bill was attempted.
HB 2712 Requiring retailers to indicate the country of origin on beef sold to the public. The impact of mis-leading consumers with beef products labeled as USDA due to slaughter in the US but not coming from the US is concerning on levels that deal with consumer protection and transparency in the products consumed, but also impacts the properties of cattle producers who are struggling to stay in business and keep their properties with very little profit margin due to the labeling issue. Most people want to know where their food is sourced and want to support local ranchers. Labeling was done away with due to federal trade deals in 2015, and this impacted our state producers, and our ability to know where beef has been raised. This has artificially lowered the price of beef by flooding the market with beef produced from around the world, where practices may not be up to the standards of US producers. The bill passed the house with a 92/6 vote, but stalled after committee executive hearing, and did not make it to the floor from ways and means in the senate. Even though the bill did not pass, a budget provision promotes working on the issue. The budget directs the state Department of Agriculture to develop labeling standards for beef and other meat products for lawmakers to consider in 2021. Meanwhile the federal government must address how labeling for US product can be accomplished without interference from other countries through trade tariffs.
HB 2906 Concerning the use of radio collars on gray wolves by the department of fish and wildlife. Representative Kretz sponsored this bill, and though he made compromises during its brief life, the bill failed. It passed the house unanimously but failed to progress in the senate. The bill would have helped with additional collaring of wolves to better track their whereabouts. I would have liked to see the bill pass, as wolf populations are growing each year considerably. CAPR has ready a bill on wolves regarding wolf disease transmission to ungulates and humans we would like to see sponsored. The bill will always be ready and is in bill form thanks to Representatives Taylor and Shea writing a similar bill in the past. Other states with large wolf populations recognize and address the dangers of wolf-transmitted diseases, Washington state must take on the responsibility of educating and informing the public about this under-reported danger related to wolf populations.
These following bills were agenda driven and at times rather bizarre.
HB 2317/SB 6300 Concerning animal welfare. Orwall/Rivers This is a carelessly written bill that has agricultural interests and pet owners concerned. It has a companion in the Senate, SB 6300 the bill has only gotten more bizarre with the passage of time and amendment. This bill will be disturbing to people who understand that sometimes animals will be uncomfortable in certain circumstances, the definition of pertaining to animal cruelty, and facets of human/animal interaction is off-putting and has been focused on in an out of the ordinary manner. A definition of "pain or suffering" is added to the chapter governing animal cruelty offenses and related offenses. The bill passed the house and the senate and has been delivered to the governor for signature.
HB 1407/SB 5385 Concerning comprehensive sexual health education. Stonier/Wilson,Claire A hotly and bitterly contested bill forcing sex ed that many consider inappropriate and pornographic for children from kindergarten through high school. This bill was interesting as the house proffered over 200 amendments and resulted in more than a few “temporary at ease” interruptions so arguments could be held off camera. Similarly argued in the Senate. In spite of all best efforts by parents, grandparents, and republicans, the bill passed on a partisan basis all republicans voting no, all democrats except Senator Sheldon voting yes. The bill passed both house and senate despite amendments and has been sent to the governor for signature. There is a petition effort underway asking the governor to veto the bill. It has 32,059 signatures at this writing. https://petitionbuilder.org/petition/say-no-to-sex-ed-for-5yr-olds-b7tm--1?fbclid=IwAR3VoRaVjlJqoWe9ZV_IFdl2TlPF4UCwoA5V3xCkpVT9QGkfTiTBfKJiORE If the governor does sign the bill a referendum effort is underway. Information on the referendum can be seen here: https://www.parentsforsafeschools.com/
HB 2829 Declaring a climate emergency. Kirby The bill would have declared a climate emergency. And would have authorized the Governor to declare an energy emergency for purposes of limiting greenhouse gas emissions and building resiliency to the effects of climate change. Obviously, a bill outside of and above the law. We elect governors, not kings. We live in a representative republic which has three branches of government, the legislative, the executive, and the judicial. The legislature does not have the power to eliminate that system through legislation. In the constitution of Washington State Article 1, Section 1: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Perhaps the bill sponsor Representative Kirby should have recognized the bill to be unconstitutional. It may be time to require our legislators to pass a test on the constitution prior to swearing their oaths. The bill rightly never progressed beyond a public hearing and is a “dead” bill.
HB 2549 Integrating salmon recovery efforts with growth management. And HB 2550 Establishing a Policy of Net Ecological Gain Lekanoff Including the goals of salmon recovery in the Growth Management Act; and HB 2550 Establishing “net ecological gain” as a policy in identified land use, development, and environmental laws. Fortunately, these bills did not make it out of committee. Net ecological gain is very dangerous and even though some agencies try to put this into WACs it is not constitutional to require an individual to not only prevent ecological harm but to legislate an individual to create an ecological gain or improvement when permitting land use decisions and projects.
HB 1110 Reducing greenhouse gas emissions associated with transportation fuels Fitzgibbon Authorizes Ecology to create a Clean Fuels Program to limit greenhouse gas emissions based on a unit of fuel energy, reducing emissions per unit to 10 percent below present levels by 2028, and 20 percent below present levels by 2035. Creates standards and processes for banking and trading credits. Striking amendments were made, but the basic problems with modified fuels, and the costs, engine wear, and carbon credit schemes remain. The bill failed for the second try this session passing the house but not progressing to the floor in the senate.
HB 2957 Reducing greenhouse gas emissions by providing authority for the regulation of indirect sources under the clean air act and implementing standards and programs that reduce emissions associated with buildings. Fitgibbon The bill would have crated the authority and rulemaking for WACs to Ecology to regulate direct and indirect sources of green house gas emissions through the clean air act. The bill made it to rules in the house but did not get to the floor and so not to the senate.
HB 2311 Amending state greenhouse gas emission limits for consistency with the most recent assessment of climate change science. Slatter Makes changes to greenhouse gas emission targets. Establishes net zero emissions as a target for 2050. Promotes the reaching of these standards through carbon sequestration defined as the process of capturing and storing atmospheric carbon dioxide through biologic, chemical, geologic, or physical processes. It is not clear if this would include sequestration banking, but it is logical to think this would be a part of the “process”. Net zero emissions is an unrealistic concept, even if all energy were not directly related to fossil fuel it is virtually impossible to create alternative energy processes without some use of fossil fuels. Nice idea, but we do not live in the universe of the old weekly reader of grade school days. Perhaps with the passage of centuries this will be accomplished. Until then, this concept will only cause harm, lead to brown and black outs and situations similar to those that happened in northern California, with the focus of energy producers on “green” technology at the suffering of maintaining infrastructure. Passed the house and the senate and has been sent to the governor for signature. This will need to be closely followed to avoid the problems, damages, and costs others have suffered under similar legislation in other locales.
HB 2892 Authorizing the department of ecology to regulate greenhouse gas emissions associated with persons who produce or distribute fossil fuel products that emit greenhouse gases in Washington Creates the authority for Ecology to require producers and distributors of fossil fuels and products that emit Greenhouse gasses to comply with air quality standards under the state clean air act. Changes the clean air act to include direct and ”indirect” emissions. Authorizes Ecology to rule-making that would collect fees and market-based mechanisms for emission reductions. This bill did not make it to the house floor and so not to the senate, it did not pass.
SB 6628 Concerning emissions of greenhouse gases. Carlyle Authorized Ecology to require persons who produce or distribute fossil fuels that emit greenhouse gases to comply with air quality and emission standards or emission limits on greenhouse gases. This bill was a repeat of a house bill 2957, but was not presented as a companion bill, a practice that is contributing to the shear enormity of bills proposed each session. The bill made it to rules in the Senate but not to the floor so did not pass or progress to the house. The bill is dead.
SB 5947 Establishing the sustainable farms and fields grant program McCoy Requires and authorized the Department of Agriculture to establish a sustainable farms and fields grant program that certain activities be eligible for grants which can include farm fuel efficiencies, agro-forestry, and carbon farming. The bill passed both the house and senate and is sent to the governor for signature.
SB 6147 Concerning the replacement of shoreline armoring. In replacing residential marine shoreline armoring, the least impactful method must be used in order to protect fish life. These alternatives are the preferred methods. Remove armoring and restore the beach, remove the armoring and install native vegetation, remove the structure and control upland drainage, remove the structure and replace it with “soft structuring”, remove the hard structure and replace it with an equal hard structure. The order of preferred methods can be challenged if the project alternatives can be demonstrated to be cost prohibitive or infeasible. This bill passed the senate but did not make it out of rules to the floor in the house, so it is a dead bill.
HB 2342 Aligning the timing of comprehensive plan updates required by the growth management act with the timing of shoreline master program updates required by the shoreline management act. Fitzgibbon The Growth Management Act update of comprehensive plans changes from every 8 to every 10 years and incorporates the Shoreline Management Act into the 10-year cycle beginning in 2025. Creates differing timelines for various counties and established varying anniversary dates and varying 5-year re-visiting of the updates for various counties. The bill has passed both chambers and has been delivered to the governor for signature.
HB 2427 Tackling climate change as a goal of the growth management act. Duerr for certain cities climate change would be added to the planning goals of the Growth Management Act and requiring climate change to be a goal of transportation planning. The bill would have made the GMA more damaging than it is, another nebulous ideal to take precedence over the current 13 goals which are not equally applied in land use decisions is a step backward to those concerned with property uses and rights. Passed the house but did not make it to the floor in the senate so the bill is dead.
HB 2603/SB6453 Concerning trust water rights. Springer Ecology would convene a work group of affected entities to study the design and use of the state water trust, water banking and water transfers, and tools to protect instream water rights from neighboring states and to present findings and recommendations to Joint Legislative Task Force on Water Resource Mitigation and the Governor by August 1, 2020. Unfortunate because this issue needs serious attention, the water belongs to the people of the state and water rights have been converted to a commodity through water banking. Needs more work!
SHB 1261 Ensuring compliance with the federal clean water act by prohibiting certain discharges into waters of the state. Peterson Prohibits motorized or gravity siphon aquatic mining or discharge of effluent from such an activity to any waters of the state that have been designated under the Endangered Species Act as critical habitat, or that would impact critical habitat for salmon, steelhead, or bull trout. This prohibition includes fresh waters with the designated uses of salmonid spawning, rearing, and migration. The bill passed both houses and the governor will sign. The bill was poorly written and will be problematic.
HB 2552 Creating a joint legislative salmon committee Lekanoff Creates the Joint Legislative Salmon Committee to develop and review potential legislative actions related to salmon recovery. Requires the Committee to meet during the first week of each legislative session to review introduced legislative actions related to salmon recovery. Requires the Committee to report annually. Did not make it to the floor.
The underlying intent of these bills is to undermine the rights of property owners while at the same time encouraging a lack of personal responsibility among some specific tenants. The vast majority of landlords and tenants are responsible and considerate of one another, these bills could undermine housing availability by shifting the balance of the burden of responsibility from tenants to property owners. The state does not have the authority to intervene with the contractual basis of rental agreements.
HB2453/SB6379 Providing protections to residential tenants. Specifies exclusive causes for eviction, refusal to renew, and termination of residential tenancies, with an exception, and makes other changes to rights and remedies. The bill has not passed and is dead.
HB 2520 Addressing documentation and processes governing landlords' claims for damage to residential premises. Defines "wear resulting from ordinary use of the premises" certain documentation to reasonably substantiate damage charges; and a landlord to provide a walkthrough prior to termination, if requested by the tenant, and to supply a post-walkthrough checklist; Establishes a one-year statute of limitations with respect to any action taken against a tenant to recover sums exceeding the amount of the damage deposit. The bill did not reach the floor and is dead.
HB2878/SB6490 Addressing housing concerns for individuals impacted by the criminal justice system. Prohibits a landlord from advertising, requiring disclosure of, taking an adverse action against, or implementing any policy or practice that automatically or categorically excludes individuals with any arrest record or conviction record from rental housing. The bill did not progress through the legislative process and so failed.
HB2779 Protecting tenants from excessive rent and related fees. This bill did not gain a hearing. Dead bill.
HB2724/SB6378 Concerning residential tenant protections. Amends the Residential Landlord-Tenant Act to: Amend the notice to pay or vacate and summons forms; prohibit a landlord from threatening eviction for failure to pay certain charges other than rent; provide for use of emergency rental assistance; revise a provision with respect to attorneys' fees; expressly allow the landlord to refuse cash, and require a receipt if cash payments are allowed; and add a requirement with respect to claims made to the Landlord Mitigation Program. The bill passed both houses and is waiting the governor’s signature.
HB2535 Providing for a grace period before late fees may be imposed for past due rent. Establishes a registration requirement for remote dispensing sites that use technology to dispense medications approved for the treatment of opioid use disorder. Allows the license of location for a pharmacy to be extended to a registered remote dispensing site. The bill passed both the house and senate on the floor and is sent to the governor for signature.
HB1694 Allowing tenants to pay certain sums in installments. Requires landlords to permit tenants to pay deposits, nonrefundable fees, and last month's rent in installments, subject to exceptions and general parameters regarding the number and timing of the installments. Allows for applications for reimbursement from the Landlord Mitigation Program in certain circumstances related to a tenant's failure to make installment payments. Limits the amount of holding fees or deposits requested by landlords. This bill passed the house and senate and is delivered to the governor for signature.
Oversight of the use of administrative law by agencies.
Washington State Board of Health has embarked on a rulemaking “Keeping of Animals” that is raising the ire of animal owners statewide because of what many perceive as over-reaching and agency jurisdictional cross-purposes. At this point it is clear the livestock and horse industry would be impacted, and the rule should be read and commented on by all animal owners, livestock, small farm, and pet owners alike. https://sboh.wa.gov/Rulemaking/CurrentRulesandActivity/KeepingofAnimals
I have been involved with some of the stake holding and conversations around this rule. It has been requested commercial operations be separated from other operations, or a separation based on livestock animals versus pet animals, but I believe the problems the rule would create go deeper than that, with the implications of the rule and its enforcement capacities reaching into small farms, public land uses, and the impact of the rule on conservation districts and local ordinances with their rule-making as authorized through the potential WAC created through the BOH rule.
On March 2nd, Senator Warnick hosted a brief morning meeting that included stakeholders, some of whom had been over-looked by the BOH. Senator Warnick will work with stakeholders to request the BOH give more time and investigation of detail to the rulemaking and how the present draft could be improved. Hopefully based on a more realistic view of agency jurisdiction and present WACs by other agencies that have been hammered out over time since the BOH rule was completed years ago. This bill is broad and over-reaching and sets a damaging precedent in enforcement capacity.
Senator Warnick composed a letter to the BOH asking the agency to cease the rulemaking and this letter was signed by 30 legislators. The letter was delivered to the BOH and acknowledged by the agency. They will add it to the comments on the draft rule which had a deadline of March 13. I think the letter should make an impression on the BOH, they have a long time-line on the final bill, so as this moves along I will update and ask members for comments as I keep them updated with any news on the rule making.
I continue to have concerns with the enforcement language in the proposed rule. For many private property owners this seems over the top for such small violations as missing a dog decoration in the yard. For others who keep small animals such as chickens or goats as an integral part of soil management and enhancement, the rules are needlessly restrictive and do not take into account traditional garden or pasture management practices meant to enhance soils and promote good environmental practices in soil enhancement and management.
Couple the enforcement issues with the blind eye on these practices and the rule sets the stage for conflict between property owners and local ordinances/enforcement staff. There are counties within the state where that conflict is in question, and over-zealous land use code enforcement has become an expensive and damaging problem.
It is also distressing to see specifically included this enforcement language from RCW 42.20.050(5) All local boards of health, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and all other officers and employees of the state, or any county, city, or township thereof, shall enforce all rules adopted by the state board of health. In the event of failure or refusal on the part of any member of such boards or any other official or person mentioned in this section to so act, he or she shall be subject to a fine of not less than fifty dollars, upon first conviction, and not less than one hundred dollars upon second conviction.
For what may be considered small infractions in existing practices, this language is overly harsh, and has the potential to pit landowners and enforcement staff against one another.
The fines and “convictions” in this RCW are too harsh for the broad language of the proposed bill and can only interfere with cooperation among landowners and such entities as conservation districts meant to facilitate best practices in land management.
The rulemaking has rightly attracted the attention of citizens and legislators alike and should be abandoned, or at the very least the BOH should accept the need for more careful examination of their authority as related to the authority granted other agencies and if that authority is in conflict.
Thank you CAPR members for your support in the effort to bring about the recognition and respect of property rights in Washington state!
March 16, 2020