Spokane Cnty. v. Wash. Dep't of Fish & Wildlife

430 P.3d 655
CourtWashington Supreme Court
DecidedDecember 6, 2018
DocketNo. 95029-6
StatusPublished
Cited by32 cases

This text of 430 P.3d 655 (Spokane Cnty. v. Wash. Dep't of Fish & Wildlife) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spokane Cnty. v. Wash. Dep't of Fish & Wildlife, 430 P.3d 655 (Wash. 2018).

Opinion

OWENS, J.

*657¶ 1 This case asks us to determine the geographic scope of permitting authority delegated to the State of Washington Department of Fish and Wildlife (Department) over hydraulic projects. A "hydraulic project" is defined as "the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state." RCW 77.55.011(11). Entities seeking to undertake hydraulic projects must apply for and obtain permits from the Department before commencing work. RCW 77.55.021. In this case, a coalition of Washington State counties (Counties) challenge the Department's statutory authority to regulate the construction or performance of work that will occur exclusively above the ordinary high-water line.

¶ 2 We hold that the plain language of the statute looks to the reasonably certain effects of hydraulic projects on waters of the state in determining the scope of the Department's permitting authority, and we conclude that at least some projects above the ordinary high-water line are reasonably certain to affect those waters. An examination of relevant legislative history confirms that the legislature intended the Department's regulatory jurisdiction to include projects above the ordinary high-water line that affect state waters. We affirm the trial court.

PROCEDURAL AND FACTUAL HISTORY

¶ 3 Chapter 77.55 RCW, construction projects in state waters, hereinafter referred to as the "Hydraulic Code," was first enacted in 1943. See LAWS OF 1943, ch. 40, § 1. From its outset, the Hydraulic Code was intended to protect fish life. Id. The Hydraulic Code requires anyone planning to undertake a hydraulic project to obtain a preconstruction approval permit from the Department to ensure "the adequacy of the means proposed for the protection of fish life." RCW 77.55.021(1). The Department can deny or condition a permit only for the purpose of protecting fish life. RCW 77.55.021(7)(a). The Department's regulatory authority encompasses hydraulic projects, which are defined based on their effects on waters of the state rather than their location relative to those waters. See RCW 77.55.011(11).

¶ 4 The Counties primarily take issue with rules promulgated by the Department in 2015, chapter 220-660 WAC (2015 Rules). The 2015 Rules specify that a permit is required for bridge maintenance and construction, even if the work to be performed will occur above the ordinary high-water line:

An HPA [hydraulic project approval] is required for all construction or repair/replacement of any structure that crosses a stream, river, or other water body regardless of the location of the proposed work relative to the [ordinary high-water level] of state waters. An HPA is also required for bridge painting and other maintenance where there is potential for paint, sandblasting material, sediments, or bridge parts to fall into the water.

WAC 220-660-190. The Counties seek an exemption from the permitting requirement for work that takes place entirely above the ordinary high-water line, hereinafter referred to as "upland projects."

¶ 5 The Counties first sought an exemption for upland projects during the notice and comment process for the 2015 Rules. After the 2015 Rules were promulgated, the Counties filed their concerns with the attorney general. Thereafter, the attorney general issued a formal legal opinion directly answering the question presented in this case. 2016 Op. Att'y Gen. No. 6. The attorney general opined that the statute is unambiguous and that the Department's permitting jurisdiction extends to all work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state, regardless of whether the activity is above or below ordinary high-water lines. Id. at 5-7.

¶ 6 The Counties next brought this legal action, seeking a declaratory judgment and injunction under Washington's Administrative Procedure Act, chapter 34.05 RCW. RCW 34.05.570(2)(c). The trial court found that "[t]he Hydraulic Code, [chapter] 77.55, is not ambiguous regarding the extent of [the Department's] Hydraulic Project Approval permitting and/or regulatory authority" and that "[s]uch permitting and/or regulatory authority *658is not limited to activities taking place at or below the Ordinary High-water Line." Clerk's Papers at 147. The Counties sought this court's direct review of the trial court's decision, which we granted. The court also granted the motions of multiple sovereign tribes to submit amicus briefs, which primarily stressed the need to regulate upland projects in order to protect fish.

ISSUE

¶ 7 Did the legislature intend to limit the Department's permitting and regulatory authority to cover only projects that take place at least partially at or below the ordinary high-water line?

ANALYSIS

¶ 8 The Counties challenge the 2015 Rules under the Administrative Procedure Act, arguing that the rule should be struck down as "[o]utside the statutory authority of the agency." RCW 34.05.570(4)(c)(ii). The 2015 Rules are presumptively valid, and the Counties bear the burden of showing that the Department exceeded its statutory authority in promulgating them. Wash. Pub. Ports Ass'n v. Dep't of Revenue , 148 Wash.2d 637, 645, 62 P.3d 462 (2003).

¶ 9 This case thus requires us to engage in statutory interpretation, which is an issue of law that we review de novo. State v. Velasquez , 176 Wash.2d 333, 336, 292 P.3d 92 (2013). "Our starting point must always be 'the statute's plain language and ordinary meaning.' " State v. J.P. , 149 Wash.2d 444, 450, 69 P.3d 318 (2003) (quoting Nat'l Elec. Contractors Ass'n v. Riveland ,

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Bluebook (online)
430 P.3d 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spokane-cnty-v-wash-dept-of-fish-wildlife-wash-2018.