Status of certain funds appropriated by the 2005 Legislature for clean up of Hood Canal

LEGISLATURE – STATE BUDGET – PUGET SOUND ACTION TEAM – Status of certain funds appropriated by the 2005 Legislature for clean up of Hood Canal.

Section 116(2) of the 2005-07 biennial operating budget sets certain amounts aside for corrective actions to clean up Hood Canal as described in a Conservation & Recovery Plan; the budget does not expressly require that these funds be “co-managed” as described in RCW 90.88, also enacted in 2005.

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December 21, 2005

Dear Senator Sheldon and Representative Eickmeyer:

            By letter previously acknowledged, you have requested our opinion on the following question:

            Are funds appropriated through section 116(2) of the state operating budget for 2005-07, which are “solely for one-time corrective actions to address Hood Canal’s dissolved oxygen problems,” subject to the joint coordination, consent, and co-management provisions of ESHB 2097?

BRIEF ANSWER

            We conclude that section 116(2) of the 2005-07 state operating budget appropriates funds to the Governor to be used by the Puget Sound Action Team.  Laws of 2005, ch. 518, § 116.  Although it appears the Legislature envisioned that the Puget Sound Action Team would work cooperatively with the Hood Canal Coordinating Counsel (HCCC), the appropriation is not expressly subject to the “co-management” provisions of Engrossed Substitute House Bill 2097 (ESHB 2097) (Laws of 2005, ch. 479).

                                                                                 [original page 2] BACKGROUND

            You have asked us to consider whether and how the provisions of ESHB 2097 apply to the appropriation in section 116(2) of the 2005-07 state operating budget.  ESHB 2097 establishes a management program for rehabilitation of Hood Canal.[1] It provides that the Puget Sound Action Team and the HCCC will work together to develop, approve, and co-manage projects, studies, and activities addressing Hood Canal’s low-dissolved oxygen concentrations.  ESHB 2097 was approved by the Governor on May 16, 2005, and went into effect immediately.  Laws of 2005, ch. 479, § 8.  The state operating budget for 2005-07 was passed into law on May 17, 2005.[2] Laws of 2005, ch. 518, § 116.  Section 116(2) of the budget appropriates funds to the Office of the Governor for corrective action and management of Hood Canal.  Id.

            There are two entities addressed in your question.  The first is a state agency, the Puget Sound Action Team.  The Puget Sound Action Team is established by RCW 90.71.020.  It is statutorily directed to create a work plan for Puget Sound, to be included in the Governor’s biennial budget.  RCW 90.71.020(2)(a).  The Puget Sound Action Team is also responsible for overseeing implementation of the work plan elements that receive funding.  RCW 90.71.040(2)(d).  The second is the HCCC, a group of county and tribal governments formed to address water quality and natural resource issues in the watershed.  HCCC is designated as the local management board for the Hood Canal restoration authorized by RCW 90.88.020(3) (Laws of 2005, ch. 479, § 2(3)).

            In August 2005, the Puget Sound Action Team and the HCCC published the Puget Sound Conservation & Recovery Plan.[3] The plan contains goals, strategies, funding, and specific measurable results for recovering and conserving Puget Sound during the 2005-07 biennium.  The appendix to the Puget Sound Conservation & Recovery Plan sets forth the activities to be undertaken by a variety of agencies and the results expected to be accomplished with funding appropriated by the Legislature.  A draft of the report was circulated to the Legislature during the 2005 legislative session.  The final report reflects the appropriations made in section 116 of the 2005-07 state operating budget to implement the plan.

ANALYSIS

            Section 116 of the 2005-07 state operating budget contains a number of appropriations for the Office of the Governor.  Your question concerns the appropriation in section 116(2), which provides:

[original page 3] $200,000 of the general fund--state appropriation for fiscal year 2006, $200,000 of the general fund--state appropriation for fiscal year 2007, and $200,000 of the general fund--federal appropriation are provided solely for one-time corrective actions to address Hood canal’s dissolved oxygen problems, the Puget Sound conservation and recovery plan action item PSAT-07.

Laws of 2005, ch. 518, § 116(2).

            Since the appropriation specifically funds the Puget Sound Conservation and Recovery Plan item PSAT-07, it is important to consider the language of PSAT-07.   The following excerpt from PSAT-07 provides some guidance:

Agency:  Puget Sound Action Team Staff

Budget Code Title:  Manage a program of rehabilitation for Hood Canal; develop and provide funds for corrective actions to address Hood Canal’s dissolved oxygen problems

Total funds:  $600,000

As this excerpt illustrates, the agency addressed by PSAT-07 is the Puget Sound Action Team.  The objectives listed in the budget code title correlate with the general authority provided to the Puget Sound Action Team in RCW 90.71 to coordinate and further activities to restore the health of Puget Sound.  There is no mention in this introductory material of any other agency.

            In describing the program, PSAT-07 states that “the Puget Sound Action Team is the state lead agency for rehabilitation of Hood Canal.”  The description provides that the Puget Sound Action Team will work with the HCCC to coordinate a program for rehabilitation of Puget Sound.  However, the Puget Sound Action Team remains the lead agency. There is no express requirement that the Puget Sound Action Team and the HCCC reach agreement about expenditure of the funds.  The list of results expected by PSAT-07 contains similar language.  The process of prioritizing projects, studies, and activities for funding will be developed jointly with the HCCC, but the program will be “coordinated and led” by the Puget Sound Action Team.

            ESHB 2097 establishes a management program for Hood Canal rehabilitation.  Under ESHB 2097, the Puget Sound Action Team and the HCCC “must each approve and must co[-]manage” the projects authorized by the bill.  RCW 90.88.020(4).  Section 116(6) of the appropriation specifically states that it provides funds solely to implement ESHB 2097.  In contrast, nothing in section 116(2) of the 2005-07 state operating budget refers to ESHB 2097 or ties the appropriation to the existence of ESHB 2097.  Thus, even if ESHB 2097 had not been enacted, section 116(2) of the budget could have been fully implemented according to its terms.

            [original page 4] It seems clear that the Legislature understood and expected that there would be cooperation between the Puget Sound Action Team and the HCCC in implementing the objectives stated in PSAT-07.  However, the funds appropriated in section 116(2) of the 2005-07 state operating budget are not subject to the joint coordination, consent, and co-management provisions of ESHB 2097.           

            We trust that the foregoing will be useful to you.

                                                                        ROB MCKENNA
                                                                        Attorney General

                                                                        ANNE EGELER
                                                                        Senior Counsel

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