The year of “net ecological gain”

The most impactful environmental proposals this year dealt with shifting regulation standards.

The shift associated with state and local environmental regulations was towards environmental recovery rather than mere environmental preservation. Climate was also a focus, although those efforts centered around land use policy.

HB 2550 was an environmental community priority that we believe may have had far reaching implications for state and city environmental regulatory efforts. The premise of the proposal was 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.

As you all know, cities are very 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 posed 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 raised 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 were successful in having the state study the concepts of this bill, and a related bill that focused specifically on integrating salmon recovery into the Growth Management Act through net ecological gain (HB 2549), rather than moving directly to implementing the policy. AWC and cities will be engaged in a workgroup during the interim that will explore whether this can be done in a way that doesn’t create legal liabilities for cities.