By Diana Carlen
Saturday marked the 76th day of the 2021 Legislative Session. March 26 was the opposite house policy cutoff, meaning that all bills must have passed out of the opposite chamber’s policy committees to remain alive, unless they are considered Necessary to Implement the Budget. The next legislative deadline is fast approaching on April 2, when all bills must pass out of the opposite chamber’s fiscal committees to remain alive.
Beyond policy cutoff this week, last week was an extremely busy week in the Legislature. Both chambers released their proposed operating, capital and transportation budgets. Now that each chamber has staked out their budget positions, negotiations begin. The goal is to reach agreement on a final budget by April 25, when the regular legislative session is scheduled to end.
House Labor Committee passes out agriculture overtime & retroactivity liability protection legislation
On Friday, the House Labor & Workplace Standards Committee passed out ESSB 5172, the agriculture overtime legislation, without amendments, meaning it is the same version that passed out of the Senate.
The current draft includes protections for agriculture employers from liability for retroactive liability (three year look back for overtime wages) and phases in overtime pay to all agricultural employees.
It was disappointing that the committee did not adopt a technical amendment to strengthen the retroactive liability protection and also limited harvest exemption. Both amendments were rejected by Democrats on the House Labor Committee. The seasonal amendment would have allowed farmers to choose a 12-week period each year when they would only have to pay overtime after 50 hours had been worked in a week. Almost every other state that requires agriculture to pay overtime has a similar seasonal flexibility. We will continue to advocate for both of these amendments.
The bill has been referred to the House Appropriations Committee and is set for a hearing today.
House and Senate release operating, capital and transportation budget proposals
The primary tasks of legislators during a long session is to pass the state’s biennial budgets: operating, capital and transportation. Last week, the House and Senate Budget chairs released their proposals for the 2021-2023 biennium. Over the next several weeks, lawmakers will hold public hearings on their respective proposals and then begin negotiating and reconciling differences between the proposals to develop final budgets prior to the Legislature adjourning on April 25.
Notably, each of the respective budgets utilizes a portion of the $4.25 billion in funding that the state received through the American Rescue Plan. However, the U.S. Treasury has not released the guidelines on exactly how this funding can be used. As such, much of what is in the budget proposals will be tentative and likely to change significantly as more information is released about the use of federal funds.
Additionally, it is important to note that the financial outlook for the operating and capital budgets have returned to prepandemic levels. Revenue estimates are not substantially different than when the Legislature developed the supplemental 2019-21 budget last year in March. However, the financial outlook for the transportation budget remains significantly lower reflecting long-term impacts from the pandemic.
Operating budgets. For the 2021-2023 fiscal biennium, the Senate proposal appropriates $59 billion and the House proposal appropriates $58 billion.
The Senate and House proposals also rely on new revenue sources. Both budgets account for $357 million via a newly imposed capital gains tax, and the Senate proposal includes a $34 million gain from a new premium tax on eligible captive insurers.
Some notable highlights in the operating budgets include:
- Nooksack and Lake Roosevelt Adjudications – funding requiring Ecology to prepare and file adjudications in the Nooksack and lake Roosevelt and middle tributaries watersheds. The department must also provide funding for Whatcom county to support a collaborative process among local water users and water right holders that can complement water rights adjudication in the Nooksack watershed.
- Voluntary Stewardship Program – both budgets provide funding for the Conservation Commission for the voluntary stewardship program.
- Cap-and-Trade and Low Carbon Fuel Standard – both Senate and House budgets provide funding for these two carbon bills.
- Environmental Justice Task Force Recommendations – The Senate provides funding for the legislation.
Capital budgets. Some notable highlights include:
- Johnson Hall Demolition – $8.0 million to demolish Johnson Hall at WSU Pullman Campus, in preparation for the construction of a federally funded replacement science facility (included in both Senate and House Capital budgets).
- Water Supply: The Department of Ecology is provided the following appropriations for water supply, flood control, and streamflow restoration.
- The House appropriates $115.5 million; $40 million is for work related to streamflow restoration; $33.7 million is for the Yakima River Basin; $31.2 million is for continued implementation of the Columbia River Basin Supply Development Program; $4.3 million is for projects related to the Sunnyside Valley Irrigation District projects.
- The Senate appropriates $197 million; $40 million is for work related to streamflow restoration; $42 million is for the Yakima River Basin; $45 million for the Columbia River Water Supply Development Program; $10 million is for a water banking pilot program to implement strategies to meet local water needs.
- Broadband – The Senate invests $490 million in broadband while the House proposes $155 million in funding.
Transportation Budget Proposals. The Senate and the House Democratic caucuses released their 2021-2023 biennium and second 2019-2021 supplemental transportation budgets last week. The House proposed budget for the supplemental and biennial budget provides a spending authority of about $9.5 billion and $10.9 billion, respectively. The Senate’s proposed budget includes just over $9 billion in supplemental appropriations and $11.7 billion. Notably, federal funding keeps existing projects like the Gateway Program on schedule and also creates capacity to invest $726 million into state fish passage barrier projects.
Discussions about new revenue for transportation continue in Olympia, but formal bill language has yet to be introduced which is not too promising given the late of session. Representative Fey intends to release the transportation spending side of his new revenue proposal, HB 1136, this week.
Cap-and-Trade legislation passed out of Senate Fiscal Committee
There is continuing momentum for cap-and-trade legislation (2SSB 5126) which passed out of the Senate Ways & Means Committee last week. The bill was passed on a narrow vote in the Ways and Means Committee March 22. Two members of the majority voted “without recommendation.”
One substantial amendment that was adopted in committee would delay implementation of the compliance requirements until a new transportation funding package of $500 million or more per biennium is enacted.
New language also includes additional measures providing more clarity for energy intense and trade exposed industries which includes food processors. A summary of the second substitute bill can be found here.
In total, there were close to 30 proposed amendments in committee, five of which were adopted. The bill is now headed to the Senate Rules Committee, and the wait begins to see if a grand bargain is reached in the final days of session where a deal on transportation infrastructure funding could be tied to carbon pricing legislation to generate revenue.
Other notable bills that passed out of committee this week by deadline:
- Paid Family and Medical Leave Expansion (E2SHB 1073), sponsored by Rep. Liz Berry (D-Seattle), would establish temporary, alternate eligibility requirements for the Paid Family and Medical Leave Program for individuals that do not meet the program’s hours worked threshold in 2020. New language in the bill also clarifies that grants for employee leave related to alternate eligibility created by the legislation would not be funded from the family and medical leave insurance account and would instead utilize federal funding from the America Rescue Plan Act.
- Allowing Whistleblowers to Bring Actions on behalf of State Workplace Protections (SHB 1076), sponsored by Rep. Drew Hansen (D-Bainbridge Island), would allow attorneys to bring actions in the name of the state against employers for worker violations under various state laws and get attorney fees. The bill was amended to remove the following laws that may be enforced under a qui tam action: laws relating to seasonal labor and agricultural labor. The bill is scheduled to be heard in the Senate Ways & Means Committee today.
- Dredged Material Disposal (SHB 1193), sponsored by Rep. Larry Hoff (R-Vancouver), would modify the Shoreline Management Act to exempt federal navigation channel maintenance and improvement projects from the permitting process. Of note, the bill was amended in committee to limit the jurisdiction to the Columbia River only.
- Paid Family and Medical Leave Expansion (SSB 5097), sponsored by Sen. June Robinson (D-Everett), would expand the definition of family member under Washington’s Paid Family and Medical Leave law. The current version of the bill includes a narrowed definition of family member from the original, defining family member as an individual regularly residing in an employee’s home or an individual dependent on care from an employee. The bill was also amended to remove changes to the time period that qualifies an employee for job and health insurance protection and include new language requiring the Employment Security Department to report on Paid Family and Medical Leave utilization.
- Health Emergency Labor Standards (ESSB 5115), sponsored by Sen. Karen Keiser (D-Kent), would establish an occupational disease presumption concerning workers compensation for frontline workers during a public health emergency. The bill also creates certain notification requirements for employers during a public health emergency regarding infected employees. The bill had been carefully negotiated in the Senate so that the business community was neutral. Unfortunately, the House is not honoring that agreement and has added language that is concerning. For example, the House has removed the provision expiring the bill upon the expiration of the Governor’s proclamation related to COVID-19.
- Environmental Justice Task Force Recommendations (E2SSB 5141), sponsored by Sen. Rebecca Saldaña (D-Seattle), would seek to implement several of the state’s Environmental Justice Task Force’s recommendations including creating an environmental justice council to advise at least seven state agencies. Republicans attempted to amend the bill this week to limit the council’s oversight to the Puget Sound Partnership. Democrats nixed the idea and approved the bill on a party-line vote.
- Pesticide registration (SSB 5317), sponsored by Sen. Judy Warnick (R-Moses Lake), would increase license and application fees under the Pesticide Control Act and the Pesticide Application Act.
- Fertilizer fees (SSB 5318), sponsored by Sen. Warnick, would increase fertilizer distribution application, license, inspection, and late fees.
- Wage Liens (SB 5355), sponsored by Sen. Steve Conway (D-Tacoma), would establish a lien for wage claims. The bill allows a lien to be placed on the employer or employer’s office personal property for unpaid wages and recovery of attorney fees and costs.
- Allocation of Groundwater in the Columbia Basin (SSB 5230), sponsored by Sen. Perry Dozier (R-Walla Walla), would ascertain that agreements with the Federal Government for the allocation of Columbia Basin Program groundwaters do not require compliance with the groundwater code for the establishment of groundwater areas or subareas.
Notable bills considered dead after the March 26 cutoff deadline:
- Irrigation District Elections (SSB 5342), sponsored by Sen. Mark Schoesler (R-Ritzville), would permit irrigation district board of directors, by adoption of resolution, to conduct an election via mail-in ballots. The bill also clarifies who may vote in an irrigation district election and establishes measures to ensure election security.