Environment & Water

2018 Legislative Session Summary

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Legislative Building in Olympia

During our Regional Dairy Meetings earlier this year, we provided information about key ideas, efforts, and bills during the first part of the legislative session. With the election of Sen. Manka Dhingra in a special election last November, Democrats controlled both legislative chambers this year. As the session continued, many tax and policy efforts died, while others were modified and enacted into law. The 60-day 2018 legislative session came to an end March 8.

Washington State Dairy Federation reviews thousands of bills as they are introduced and tracks hundreds of bills during session. Now that session is over, we are recapping the issues important to the dairy industry. Below are key issue categories with bill specifics in each one.

Environment and Energy

Jay Gordon speaking with Sen. Dean Takko and Rep. Jim Walsh

Carbon Tax (SB 6203): There were numerous carbon tax bills, and all would have increased farm production costs and transportation costs, hurting farmers and rural communities. Gov. Jay Inslee’s initial proposal would have hit dairy farms with about $9,000 per year in added carbon taxes from highway fuel, electric cost, and trucking milk and feed. WSDF opposed these bills. In the end, the carbon tax died on the Senate floor. However, a coalition of environmental, tribal, and labor groups filed a carbon tax initiative. Proponents must collect 260,000 signatures by July 6 to qualify for the Nov. 2018 ballot.

Greenhouse Gas Standards (HB 1144): This bill would have made the state’s greenhouse gas emission reduction limits even more stringent than they currently are. WSDF opposed this bill, which passed the House 50-48 but died on the Senate floor.

Low Carbon Fuel Standard (HB 2338): Similar to a carbon tax, this bill would have increased the cost of fuel. WSDF opposed this bill, and it died in the House Rules Committee.

Renewable Natural Gas (HB 2580): This bill, which WSDF supported, directs WSU to evaluate and report to the Legislature how to increase production of renewable natural gas (RNG). It reestablishes tax incentives on property and equipment necessary to collect clean biogas and inject in transmission lines as pipeline quality natural gas, and it includes a process to establish uniform gas quality standards. RNG production could replace as much as 20 percent of current diesel use in Washington. Dairy farms are the second largest potential source of RNG (potential for over 22 million gallons of diesel equivalent sourced RNG per year) after landfill gas (122 million gallons diesel equivalent potential). This bill passed the Senate 47-1 and the House 98-0. The governor is expected to sign the bill.

Fiscal

Capital Budget (SB 5965): The Legislature began with two initial goals – pass a Hirst fix and pass a biennial capital budget. Legislators accomplished these goals in mid-January. The capital budget funded several key projects for the dairy industry: WSU Animal Health Building, dairy nutrient extraction innovative technology grants via the Conservation Commission, and state cost share for conservation activities.

Dairy ambassadors at Dairy Day 2018

Capital Gains Tax (HB 2967): This bill, opposed by WSDF, was a thinly veiled income tax, as it would have imposed a tax of 7 percent on long-term capital gains. It died in the House Rules Committee.

Supplemental Operating Budget (SB 6032): Amazingly, the 2018 legislative session did not result in new taxes. With increased revenue of $1.3 billion, legislators were hard-pressed to raise taxes. Instead, a simple majority of legislators diverted $700 million for property tax relief before the money went into the state’s Rainy Day Fund, where it could only be accessed by a supermajority vote. The final vote, largely along party lines, on the supplemental operating budget was 54-44 in the House and 25-24 in the Senate.

Labor

Employee Anti-Retaliation (SB 5528): This bill would have created a presumption that an employer retaliated against an employee for certain actions such as discharging, threatening, failing to rehire a worker after a seasonal interruption, or engaging in unfair immigration-related practices. Under this bill, employers would be guilty until they could prove their innocence. SB 5528, which WSDF opposed, was given a hearing in the Senate Labor & Commerce Committee, but it did not move from committee.

Gender Pay Equity (HB 1506): This bill updated the terminology in the state’s existing Equal Pay Act, prohibits discrimination in providing employment opportunities based on gender, and prohibits retaliation for certain workplace discussions about wages and other matters. It provides employees with administrative and legal remedies. The bill did not include language to make it the only statewide standard on this issue, meaning that local governments can enact more stringent regulations than this law. The Senate passed the final version of this bill 36-12, and the House passed it 70-28. Gov. Inslee is expected to sign the bill.

Model Policies Regarding Sexual Harassment (SB 6471): This bill creates a work group at the Human Rights Commission to develop model policies and best practices for creating workplaces that are safe from sexual harassment. This collaborative approach includes business and labor stakeholders, including grower and farmworker representatives. The bill passed both chambers unanimously and is expected to be signed by the governor.

Prohibiting Employers from Asking About Arrests or Convictions (HB 1298): This bill, also called the Washington Fair Chance Act or the “Ban the Box” bill, prohibits employers from asking orally or in writing about arrests and convictions on job application forms or before an applicant is determined otherwise qualified for a position. It allows employers to confirm arrest records before initial interviews. The state attorney general’s office will enforce this act. The bill passed the Senate 33-16 and the House 52-44 and was signed by Gov. Inslee.

Wage Payment Violations (SB 5249): This bill, which WSDF opposed, would have increased damages for wage payment violation by employers from double to triple damages. The bill died in Senate Rules.

Mental Health

Gov. Inslee signs Second Substitute House Bill No. 2671, March 15, 2018. Relating to improving the behavioral health of people in the agricultural industry. Primary Sponsor: J.T. Wilcox

Improving Behavioral Health of People in the Ag Industry (HB 2671): This legislation creates a task force to review options available to improve the behavioral health status and to reduce suicide risks within the ag industry. The impetus for the bill was a national report from the federal Centers for Disease Control and Prevention that showed suicide rates in agriculture are five times higher than the rest of the population. The task force will review data related to behavioral health of agricultural workers, including factors that affect suicide risk, and review options for improving behavioral health and reducing suicide risk in Washington. The state Department of Health will establish a pilot program to assist people working in agriculture. WSDF supported this bill, which passed the Legislature unanimously and was signed into law by Gov. Inslee.

Pesticides

Pesticide Application Safety (SB 6529): The original version of this bill would have required four-day notification of pesticide application by fumigation, aerial, or air blast methods. It also would have required licensed applicators to report their spray records each month to a publicly available database at the state Department of Health. This bill was uniformly opposed by grower advocates, including WSDF. Due to the makeup of the Legislature, stopping the bill was an unlikely outcome. Instead, the bill was changed to require a pesticide application safety work group of legislators, agency officials, and stakeholders to meet during the next several months. The final version of the bill passed the Senate 45-2 and the House 57-41, and it was signed by the governor.

Transportation

Gov. Inslee signs Senate Bill No. 6180, March 9, 2018. Relating to defining the planting and harvest dates for purposes of exemptions for agricultural transporters. Primary Sponsor: Steve Hobbs

Redefining Planting and Harvest Dates for Ag Transportation (SB 6180): This bill expands the state’s designated planting and harvest dates from 10 months to year-round, which is the standard in our neighboring states. As a result, the ag exemption from the “hours of service” drive time and log book regulations is also expanded to the full year. The bill passed the Senate 47-0 and the House 97-1, and Gov. Inslee signed the bill. WSDF supported this measure.

Water

Hirst Fix (SB 6091): We advocated for a legislative fix to the state Supreme Court’s Hirst ruling limiting the use of exempt wells for residential use. We were mindful this ruling could spread to livestock watering if not resolved. A legislative compromise, SB 6091, was passed and signed by the governor. Depending on which basin you are in, there are different rules. Building permits are once again being issued for houses that rely on permit exempt wells, with one exception. The “fix” did not solve the exempt well/building permit issue in the Upper or Lower Skagit/Samish basins. (Those WRIA’s are subject to a separate Swinomish v. Skagit County decision). The main aspect of the Hirst fix did not touch the other three exemptions in RCW 90.44.050 (non-commercial yards, small commercial, and stock-watering uses). To find out which watershed you are in, see this map.

Joint Legislative Task Force on Skagit Water Supply (SB 6095): A joint legislative task force is established to review surface water and groundwater needs and uses as they relate to agricultural uses, domestic potable water uses, and instream flows in Skagit River water resource inventory areas 3 and 4, and to develop and recommend studies. $2 million is provided for studies identified by the task force in the Supplemental Capital Budget.

Skagit River Water Study (SB 6095): $500,000 of the Supplemental Capital Budget was provided to the departments of Agriculture, Fish & Wildlife, and Ecology to jointly pursue studies to evaluate instream flow needs and existing and future out-of-stream water use demands within Skagit River water resource inventory area 4 (Upper Skagit) regulated by chapter 173-503 WAC. These studies must be completed and reported to the appropriate legislative committees and task force by December 1, 2019.

Water Rights Compliance (SB 6095): $625,000 of the Supplemental Capital Budget was allocated for Ecology staff to focus on water rights compliance to address illegal water use. Actions will include technical assistance, informal enforcement, and formal enforcement actions.

Changes in the Legislature

Several legislators announced they are leaving the Legislature this year. So far, the list includes the following:

  • Michael Baumgartner, R-Spokane, 6th District
  • Judy Clibborn, D-Mercer Island, 41st District
  • Larry Haler, R-Richland, 8th District
  • Ruth Kagi, D-Seattle, 32nd District
  • Dan Kristiansen, R-Snohomish, 39th District
  • Joyce McDonald, R-Puyallup, 25th District
  • Kristine Lytton, D-Anacortes, 40th District
  • Terry Nealey, R-Dayton, 16th District
  • Liz Pike, R-Camas, 18th District
  • Jay Rodne, R-Snoqualmie, 5th District
  • Melanie Stambaugh, R-Puyallup, 25th District

Rep. J.T. Wilcox was elected by House Republicans to be their new leader due to Rep. Kristiansen’s departure.

Statewide ag organizations challenge new permit requirement by Ecology

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Washington State Dairy Federation and Washington Farm Bureau filed a joint appeal in February that challenges the recent Concentrated Animal Feeding Operation permits issued by the Department of Ecology.

Ecology has approved a state-only permit to address groundwater and a combined state-federal permit to address groundwater and surface water.

The permits went into effect in early March and are still available to dairy farmers who wish to apply for coverage. The intent of the appeal is to address elements that make the permits burdensome and unaffordable for most dairies.

“The requirements of the permits will make it harder to manage dairy nutrients,” said Dairy Federation Executive Director Dan Wood. “The intent is to set guidelines for environmental protection, but the requirements of the permits will make it harder to do that.”

Dairy farms are already regulated under the state Dairy Nutrient Management Act, and each dairy has one or more lagoons for holding nutrients (dairy manure) until the appropriate time to spread the nutrients as fertilizer.

The federal Natural Resource Conservation Service provides standards for dairy lagoon construction and maintenance. Most dairy lagoons are lined with clay, and some are lined with synthetic material.

“Dairy nutrients are a highly-valued natural fertilizer used to grow crops on dairies as well as on adjoining farms,” said Washington Farm Bureau Chief Executive Officer John Stuhlmiller. “Dairy is the state’s second-largest agricultural commodity and is extremely important to our state economy. It’s important to note that the nutrients from dairy operations are important to a lot of other farmers across the state, especially those growing organic crops. It’s a dependable supply of natural, healthy fertilizer.”

The appeal states the permits “impose management constraints that are contrary to the water quality protections the CAFO Permits seek to obtain, impose restrictions on the operations of dairy farms that would decrease rather than increase water quality protection, will cause WSDF members to suffer economic loss with no or no meaningful corresponding protection of water quality, and include terms that are unachievable because the CAFO Permits are divorced from the reality of Washington’s annual crop harvest, rainfall, and manure applications.”

“The permits failed to take into account some key farm management practices,” noted Stuhlmiller. “They require fall soil sampling after crop harvest but no later than October 1. A lot of farms haven’t even started their crop harvest by then, making it virtually impossible to comply with the demands of the permits.”

Stuhlmiller also noted that the testing requirements and nutrient application limitations are particularly counter-productive for Eastern Washington, where many fields see two harvests in the course of a year.

“There are a number of management restrictions that will result in less-productive crops, less uptake of the nutrients by the plants, and a need for bigger lagoons,” said Wood. “The regulations in the permits will work against good management practices.”

The appeal also notes that the Economic Impact Analysis “underestimates the actual impacts on small businesses posed by costs of complying with the CAFO Permits. First, the EIA underestimated the costs of soil sampling and the impact on permittees from the delay for planting winter crops. The EIA also fails to recognize any economic impacts from the loss of land caused, for example, by the 100- or 35- foot land buffers” required by one of the permits.

The appeal requests that certain aspects of the permits be reviewed and revised to be consistent with state and federal laws and agency-prescribed practices that already regulate the use of livestock nutrients.

The appeal is expected to be heard by the state Pollution Control Hearings Board in early December.

2017 Legislative Session Recap

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After a regular 105-day session followed by three 30-day special sessions, the Legislature called it quits for 2017 (so far). These special sessions come as no surprise, as over the past several years the divided Legislature has typically needed special sessions to resolve its business. However, 2017 set a record for the number of days the Legislature was in session.

During the regular session, lawmakers agreed on a bipartisan 2017-19 transportation budget. They reached agreement on the biennial operating budget hours before a June 30th deadline, averting a state government shutdown. Included in that budget package was an education funding plan designed to meet the Supreme Court’s McCleary mandate primarily through a state levy swap. A reduction of the B&O tax rate on manufacturers that was included in the budget deal was subsequently vetoed by Gov. Jay Inslee, instilling further acrimony into an already bitterly divided and opaque budget process. Continue reading →

WSU Plant Sciences/WADDL

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Legislators are still considering a proposal to fund two agricultural science buildings on the WSU Pullman campus. The House Capital Budget provides $38.1 million for the first stage of the Global Animal Health Phase II project — the new home of the Washington Animal Disease Diagnostic Laboratory (WADDL). However, no funding was provided for the new Plant Sciences Building in the House budget. The Senate version of the Capital Budget provides $52 million for Plant Sciences and $23 million for Global Animal Health building. Both buildings are essential to Washington agriculture, and we support the funding of both projects.