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AGLO 1979 No. 42 - December 28, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- RIVERS ‑- FLOOD CONTROL ‑- AUTHORITY OF DEPARTMENT OF ECOLOGY TO REGULATE FLOOD CONTROL FACILITIES

(1) Under RCW 86.16.035 the State Department of Ecology is authorized, in its discretion, to promulgate rules regulating the times when (a) the owner or operator of a "flood control facility" or (b) the owner or operator of any dam or other "water flow control facility" may release impounded water or otherwise alter the stream flow if the released water or altered stream flow might create a danger to life or property downstream.

(2) Under the same statute the Department of Ecology is also authorized to promulgate regulations requiring the notification of persons downstream or the posting of signs prior to the release of impounded water or other alteration in the stream flow by (a) a flood control dam or (b) any dam or water flow control facility when such release or alteration might create a danger to life or property below the dam.

                                                                   - - - - - - - - - - - - -

                                                               December 28, 1979

Honorable Georgette W. Valle
St. Rep., 31st District
1434 S.W. 137th
Seattle, Washington 98166                                                                                                               Cite as:  AGLO 1979 No. 42

Dear Representative Valle:

            By letter previously acknowledged you requested our opinion on certain questions relating to the authority of the Department of Ecology pursuant to RCW 86.16.035.  We paraphrase your questions as follows:

            (1) Does RCW 86.16.035 authorize the Department of Ecology to promulgate rules regulating the times when (a) the owner or operator of a "flood control facility" or (b) the owner or operator [[Orig. Op. Page 2]]

of any dam or other "water flow control facility" may release impounded water or otherwise alter the stream flow if the released water or altered stream flow might create a danger to life or property downstream?

            (2) Does RCW 86.16.035 authorize the Department of Ecology to promulgate regulations requiring the notification of persons downstream or the posting of signs prior to the release of impounded water or other alteration of the impounded water or other alteration in the stream flow by (a) a flood control dam or (b) any dam or water flow control facility when such release or alteration might create a danger to life or property below the dam?

            (3) If your answer to either question (1) or question (2) is in the negative, is there any other statutory or common law authority allowing the Department of Ecology to promulgate such regulations?

            We answer questions (1) and (2) in the affirmative for the reasons set forth in our analysis, thereby rendering consideration of question (3) unnecessary.

                                                                     ANALYSIS

            By its enactment of chapter 159, Laws of 19351/ our state legislature assumed "full regulatory control over the navigable and non-navigable waters flowing or lying within the boundaries of the state."  In so doing, it established a comprehensive program designed to alleviate damages to "public and private property," the "public health and safety" and the "development of the natural resources of the state" caused by recurring flooding waters.2/   The broad scope of that program is emphasized by the statutory direction that its provisions are to be liberally construed "with a view to effect their object."3/

             [[Orig. Op. Page 3]]

            This law further provides that "state regulatory control" shall be exercised through "regulatory orders, the designation of flood control zones and the issuance of permits."4/   These regulatory mechanisms are, in the further words of RCW 86.16.020, to be

            ". . . exercised over the planning, construction, operation and maintenance of any works, structures and improvements, private or public, which might,if improperly planned, constructed, operated and maintained, adversely influence the regimen of a stream or body of water ormight adversely affect the security of life, health and propertyagainst damage by flood water."  (Emphasis supplied)

            With regard to such structures or works "as may affect flood conditions," RCW 86.16.025 empowers the state supervisor of flood control (now the Department of Ecology)5/ to:

            ". . . examine, approve or reject designs and plans for any structure or works, public or private, to be erected or built or to be reconstructed or modified upon the banks or in or over the channel or over and across the flood plain or floodway of any stream or body of water in this state."

            Further, by RCW 86.16.027, a duty is placed upon the administrator of the program "to establish and promulgate rules and regulations governing the administration of this chapter." And finally RCW 86.16.035, the centerpiece of your inquiry, provides as follows:

            "Saidstate supervisor shall have supervision and control over all dams and obstructions in streams, and may make reasonable regulations with respect theretoconcerning the flow of water which he deemsnecessary for the protection to life and property below such works from flood waters." (Emphasis supplied)

              [[Orig. Op. Page 4]]

            Question (1):

            You first ask whether this last quoted section of chapter 86.16 RCW authorizes the Department of Ecology to adopt rules regulating the times when (a) the owner or operator of a "flood control facility," or (b) the owner or operator of any dam or other "water flow control facilities," may release impounded water or otherwise alter stream flow if the released water or altered stream flow might create a danger to life or property downstream.

We first note that RCW 86.16.035 grants authority to regulate the flow over, through or around all dams in streams. The authority is not limited to dams which have, for their express purpose, the controlling of flood waters over or through the dam.  Further, the power so granted is designed to protect against waters causing flooding downstream (and resultant damaging to persons or property) without limitation as to whether such downstream inundating occures naturally or artificially.  In other words, when a dam or other work, structure or improvement is placed in a stream, the power given to the Department of Ecology by RCW 86.16.035 is to adopt regulations which are designed to insure, to the maximum extent practicable, thatany waters flowing by, through or over the structure will not by its construction or operation injure property or persons located downstream.  The focus is on prevention of injury, and it is with this emphasis in mind that the term "flood waters" as used in the section must be interpreted.  Either natural events or artificial releases may produce injurious results.  The evident purpose of the statute is to provide authority to regulate for protection against harm resulting from inundation, regardless of the immediate cause of the damage.  In the development of such regulations, the department's evaluations will necessarily entail an examination of the kinds of activities, especially those of humans, that are reasonably expected to occur within a downstream reach.

This interpretation of RCW 86.16.035 is consistent with chapter 86.16 RCW when read as a whole.  Specifically, our conclusion is supported by the broad statement of purpose of the chapter, the comprehensive nature of the language "full regulatory control over the navigable and non-navigable waters flowing or lying within the boundaries" of the state found in RCW 86.16.010, especially when coupled with the mandate of liberal construction of the chapter's wording.  RCW 86.16.900.

             [[Orig. Op. Page 5]]

            Based on the foregoing, we answer your first question in the affirmative.6/

            Question (2):

            Your second inquiry relates to the power of the Department of Ecology, under RCW 86.16.035supra, to adopt rules requiring dam operators to notify persons downstream of upcoming detrimental water inundation conditions and to post signs along reaches of streams setting forth prospective changes in stream flow conditions.

The adoption of rules to administer RCW 86.16.035 is expressly authorized in that section as well as in RCW 86.16.027.  Rules adopted under RCW 86.16.035 must be (1) "reasonable" and (2) concern regulation of the flow over or through a dam.  In other words, there must be a reasonable relationship between any regulatory requirements placed on a dam operator‑-in terms of discharges of water over or through a dam‑-and the protection of life and property downstream from the dam.

In our view, regulations requiring notification and posting (which are both presumably designed to warn people in an area below a dam that significant changes in stream flows occur from time to time) would be reasonably related to the objectives of RCW 86.16.035 as well as the entirety of chapter 86.16 RCW.  Such regulations would be "reasonable" and would "concern" the flow of water from the dam or obstruction over which the Department of Ecology has control.

We therefore also respond to your second inquiry in the affirmative.7/

             ][Orig. Op. Page 6]]

            Question (3):

            Because we have answered your first two questions in the affirmative, a response to your third question, which relates to any alternative powers of the Department of Ecology based on other statutes or the common law, is unnecessary‑-except to note that the Department of Ecology, as an agency of state government, is vested with only those powers provided by the legislature.  State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956) andState ex rel. Holcomb v. Armstrong, 39 Wn.2d 860, 239 P.2d 545 (1952). Therefore, the Department of Ecology has no common law power to adopt any regulations whatsoever.

            We trust the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


CHARLES B. ROE, Jr.
Senior Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/This chapter is now codified as chapter 86.16 RCW.

2/RCW 86.16.010.

3/See, RCW 86.16.900.

4/RCW 86.16.020.

5/By the Environmental Quality Reorganization Act of 1970, responsibility for administration of chapter 86.16 RCW, at the state level, is now vested in the Department of Ecology. RCW 43.21A.060.

6/In so responding, however, we note that no such regulations have yet been adopted by the department.

7/In concluding as we have to both this and your first inquiry, it should not, however, be assumed that the powers granted by RCW 86.16.035 may be applied to dams owned by the federal government.  We express no opinion on this issue.  State regulatory programs may be applied to federal facilities only if a federal statute authorizes or consents to such application.  Hancock v. Train, 426 U.S. 167, 48 L.Ed.2d 555, 96 S.Ct. 2006 (1976).  Therefore, whether the requirements of chapter 86.16 RCW may be applied to federally-owned dam facilities is a matter of federal law which requires a search of federal statutes for such consent.  SeeCalifornia v. United States, 438 U.S. 645, 57 L.Ed.2d 1018, 98 S.Ct. 2985 (1978).

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