HOUSE BILL REPORT

ESSB 5604

BYSenate Committee on Natural Resources (originally sponsored by Senators Vognild, Nelson, Bottiger, Rasmussen, Owen, Craswell, Bailey, Benitz, Hayner and Johnson; by request of Office of the Governor and Commissioner of Public Lands)

Authorizing the conveyance of land for a United States Navy base in Everett.

House Committe on Natural Resources

Majority Report:  Do pass.  (14)

      Signed by Representatives Sutherland, Chair; Amondson, Ballard, Basich, Beck, Bumgarner, Fuhrman, Hargrove, Haugen, Meyers, Sayan, Schmidt, C. Smith and S. Wilson.

Minority Report:  Do not pass.  (5)

      Signed by Representatives K. Wilson, Vice Chair; Belcher, Cole, R. King and Spanel.

House Staff:Bill Koss (786-7129)

AS PASSED HOUSE APRIL 20, 1987

BACKGROUND:

The U.S. Navy proposes constructing berthing and support facilities at Everett's Norton Avenue Terminal site.  The Navy's homeport in Port Gardner will have space and support for up to 15 ships on the 117-acre site.  In order to construct the Navy's facility, over 3 million cubic yards of material will be dredged from the mouth of the Snohomish River, including nearly a million yards of material contaminated with cadmium, mercury, lead, copper, PCB's and poly-aromatic hydrocarbons.  The dredge spoils disposal site is proposed in deep water (330 to 410 feet deep) approximately 2 miles from the dredging site.  The Navy proposes to dredge the material with a clam-shell-type dredge, load the material onto a barge, and then dump the material at the designated disposal site.  The Navy then proposes to cap the contaminated dredge material by dumping "clean" material through a pipe so that it will settle on top of the contaminated material to a depth of one meter.

Currently, the state owns the tidelands and the bedlands associated with the Navy homeport project.  In addition to the issues surrounding actual transfer of these tidelands and bedlands to the Navy, ownership also triggers an issue of whether the Navy must comply with the Shorelines Management Act.

The Navy is required, under the Federal Clean Water Act, to obtain from the state a Water Quality Certification and to obtain a Section 10/404 Dredge and Fill Permit from the Army Corps of Engineers.  An issue has been raised whether the Navy is required to obtain from the state a Shoreline Substantial Development Permit under the Shorelines Management Act.  The state argues that unless the Navy owns both the base construction and the dredge disposal sites, the Navy must obtain the Substantial Development Permit.  The state so argues because the Federal Coastal Zone Management Act requires federal agencies undertaking an activity in the coastal zone to obtain a certification that the activity is consistent with the state's approved coastal zone management plan.  Washington's approved coastal zone management plan consists of the entire Shorelines Management Act and implementing rules and plans.  Congress, in its appropriation for this project, has also directed the Navy to obtain "all federal, state, and local permits required for the dredging activities" in the Everett project.

SUMMARY:

The intent of this legislation is to acknowledge the economic development associated with the Navy's homeport project in Everett while at the same time stating that the state should not assume liability or risks resulting from the Navy's proposal to cap the contaminated dredge spoils resulting from the project. The legislature also acknowledges the importance of improving water quality in Puget Sound.  The need for the emergency clause is included.

At the request of the Navy, and after compliance with the intent of this act, the Commissioner of Public lands is authorized to lease the use of the beds of navigable waters in Port Gardner Bay for the Navy dredge spoil site.  Existing authority of the Department of Natural Resources (DNR) to lease bedlands is modified to accommodate the lease to the Navy.  The lease shall reserve to the state the use of the property and associated water not inconsistent with its use as a disposal site.

The term of the lease shall be 30 years.  The lease shall contain conditions which (1) require the Navy to agree to hold the state harmless for any damage or liability relating to or resulting from the use of the dredge spoil site; (2) require the Navy to comply with all terms and conditions of federal permits (Section 401 Water Quality Certification and Section 404 Dredge and Fill Permit) and to require the Navy to comply with all statutes, regulations and permits relating to water quality and aquatic life including reasonable and appropriate terms and conditions of any permits issued pursuant to the Shorelines Management Act and shoreline master programs.

The enforceability of terms and conditions imposed on the Navy arise from several sources:  (1) the lease; (2) the Section 401 Water Quality Permit; (3) the Federal Comprehensive Environmental Response, Compensation and Liability Act; (4) the Federal Resource Conservation and Recovery Act; and (5) any other applicable federal or state laws.

The Commissioner of Public Lands is authorized to exchange tidelands to the Navy necessary to locate the Navy base.  The Governor shall execute the deeds.  The Harbor Line Commission shall modify harbor lines to facilitate the exchanges.  The exchanges shall follow DNR existing procedure.  The land acquired shall be of equal value and be suitable for natural preserves, recreation, or commercial purposes.

Fiscal Note:      No Impact.

Effective Date:The bill contains an emergency clause and takes effect immediately.

House Committee ‑ Testified For:    Craig Partridge, Department of Natural Resources.

House Committee - Testified Against:      Christine Platt, Puget Sound Alliance.

House Committee - Testimony For:    The bill that passed the Senate is identical to the bill that passed the House Natural Resources Committee earlier this year.  The concerns raised by individuals were resolved and the bill represents a document that adequately protects the state.

House Committee - Testimony Against:      This legislation should include language that ensures Congress will grant a waiver of federal immunity in case the state must sue the Navy.