Did Washington’s 2005 Hood Canal cleanup appropriation require joint approval by the local coordinating council?

Plain-English summary

In 2005, Washington’s attorney general interpreted a particular biennial budget allocation for one time Hood Canal dissolved oxygen corrective actions. The money was appropriated to the Governor for use by the Puget Sound Action Team. Although the accompanying plan anticipated cooperation with the Hood Canal Coordinating Council, the AG found no express condition requiring the council’s consent or joint management of these funds.

A separate 2005 provision established a jointly approved and managed Hood Canal program, and another budget subsection expressly funded that provision. The AG distinguished that subsection from the appropriation at issue, which could operate on its own terms. The answer was confined to that budget provision.

“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.” (Official opinion)

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Who controlled the appropriation discussed in the opinion?
A: The AG said the budget appropriated it to the Governor for use by the Puget Sound Action Team.

Q: Did the local Hood Canal council have to approve every expenditure?
A: The AG found no express consent or co management condition on this particular appropriation.

Q: Was cooperation with the council irrelevant?
A: No. The opinion said the Legislature expected cooperation, but distinguished that expectation from a mandatory approval condition.

Q: Why did the other 2005 Hood Canal statute not control these funds?
A: A different budget subsection expressly tied its money to that statute; the subsection at issue did not.

Background and statutory framework

The opinion compared section 116(2) of the 2005–07 operating budget with another subsection expressly implementing ESHB 2097. RCW 90.88.020(4) described joint management for the separate program; the Puget Sound Action Team also had duties under RCW 90.71.020. The AG treated the appropriations according to their distinct wording.

Citations and references

Statutes: RCW 90.88.020(4); RCW 90.71.020.

Budget: Laws of 2005, ch. 518, § 116(2).

Source

• Landing page: https://www.atg.wa.gov/ago-opinions/status-certain-funds-appropriated-2005-legislature-clean-hood-canal

Original opinion text

Attorney General Rob McKenna

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.

December 21, 2005

The Honorable Tim Sheldon

State Senator, 35th District

P.O. Box 40435

Olympia, WA 98504-0435

The Honorable Bill Eickmeyer

State Representative, 35th District

P.O. Box 40600

Olympia, WA 98504-0600

Cite As:

AGO 2005 No. 19

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

:pmd

[1] Engrossed Substitute H.B. 2097, 59th Leg., Reg. Sess., (Wash. 2005) is codified in RCW 90.88.

[2] The 2005-07 state operating budget was enacted through Engrossed Substitute S.B. 6090, 59th Leg., Reg. Sess., (Wash. 2005).

[3] The Puget Sound Conservation & Recovery Plan and the appendix of agency budget detail can be found at http://www.psat.wa.gov/Publications/biennialplan/05_07_PSplan.htm.