Published on Jan 24, 2020

Converting state environmental policies from “no net loss” to “net ecological gain”

Contact: Carl Schroeder, Shannon McClelland

HB 2550 is an environmental community priority that we believe may have far reaching implications for state and city environmental regulatory efforts. The premise of the proposal, sponsored by Rep. Debra Lekanoff (D–La Conner), is that the decline of Washington State Southern Resident Orca and our inability to recover the state’s endangered salmon runs can be traced to the lack of rigor in the state and local environmental regulations. The argument is that the state’s current “no net loss” approach to environmental standards has failed and that we must institute a “net ecological gain” standard.

Cities are interested in how we can participate in improving the natural systems of our state. Cities are on-the-ground implementers of many of the state’s environmental efforts. This solution however poses some difficulties for cities.

"Net ecological gain" means a standard for a development project, policy, plan, or activity in which the impacts on the ecological integrity caused by the development are outweighed by measures taken consistent with the new mitigation hierarchy to avoid and minimize the impacts, undertake site restoration, and compensate for any remaining impacts in an amount sufficient for the gain to exceed the loss.

This change raises immediate “takings” concerns about whether this would require a local government to require project mitigation that was beyond the nexus and proportionality of their project impact. We would appreciate any perspectives you have on that question. We are also consulting with the Washington State Association of Municipal Attorneys.

The bill also seems to put the cart before the horse. First, it directs all state agencies with rulemaking authority that cover environmental, land use, and development that are not otherwise bound to a different standard of ecological protectiveness to adopt rules to implement a standard of net ecological gain.

Then, in the following bill section, it directs the Office of Financial Management (OFM) to submit a report to the Legislature about how to incorporate and implement a net ecological gain standard under the Shoreline Management Act, the Growth Management Act, the Hydraulic Permitting Act, and the Model Toxics Control Act. Of particular interest to cities, this OFM assessment includes opportunities and challenges for local governments to implement a new “net ecological gain” standard.

We have concerns that the current bill structure puts cities at significant legal risk. Please provide feedback on this bill to Shannon.

 

Dates to remember


HB 2550 is scheduled for public hearing in the House Environment & Energy Committee at 3:30 pm on Tuesday.

  • Environment & natural resources
  • Land use & planning
  • Advocacy
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