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AGLO 1974 No. 77 - August 30, 1974
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Slade Gorton | 1969-1980 | Attorney General of Washington


In acting upon a proposal to form a water district under RCW 57.02.040, a board of county commissioners is to make certain determinations; however, the board may properly receive and consider the advice of the appropriate state agencies in connection therewith.

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                                                                 August 30, 1974

Honorable Herbert H. Davis
Prosecuting Attorney
Benton County
P.O. Box 510
Prosser, Washington 99350                                                                                                               Cite as:  AGLO 1974 No. 77

Dear Sir:
            By recent letter you have advised us of a pending proposal in your county for the formation of a water district under chapter 57.02 RCW.  You have then asked us whether your county commissioners may properly approve this proposed action in view of statements received from the state departments of social and health services and ecology to the effect that the formation of the subject water district would not be in compliance with an existing county comprehensive water and sewer plan or with "the water pollution control and abatement plan."
            We respond to this inquiry in the manner set forth below.
            As you have pointed out in your letter, RCW 57.02.040 (read together with RCW 56.02.070) begins by significantly restricting the formation of new water districts in a county without the approval of its legislative authority ‑ in your case, the board of county commissioners.1/   With respect to such action (among others), the statute then states that:
             [[Orig. Op. Page 2]]
            "The county legislative authority shall decide within sixty days of a hearing whether to approve or not approve such proposed action.  In approving or not approving the proposed action, the county legislative authority shall consider the following criteria:
            "(1) Whether the proposed action in the area under consideration is in compliance with the development program which is outlined in the county comprehensive plan and its supporting documents; and/or
            "(2) Whether the proposed action in the area under consideration is in compliance with the basinwide water and/or sewage plan as approved by the state department of ecology and the state department of social and health services; and/or
            "(3) Whether the proposed action is in compliance with the policies expressed in the county plan for water and/or sewage facilities.
            "If the proposed action is inconsistent with subsections (1), (2), or (3) of this section, the county legislative authority shall not approve it.  If such action is consistent with all such subsections, the county legislative authority shall approve it unless it finds that utility service in the area under consideration will be most appropriately served by the county itself under the provisions of chapter 36.94 RCW, by a city, town, or municipality, or by another existing special purpose district rather than by the proposed action under consideration.  If there has not been adopted for the area under consideration a plan under any one of subsections (1), (2) or (3) of this section, the proposed action shall not be found inconsistent with such subsection."
            As we understand your request, the legal issue with which you are concerned is that of whether your county commissioners ‑ in the case you have described ‑ are legally bound by the statements they have received  [[Orig. Op. Page 3]] from the departments of social and health services and ecology; or whether, instead, they are free to make their own determinations as to whether or not the proposed water district will, or will not, comply with the criteria set forth in subparts (1) through (3) of this statute.
            In our opinion, RCW 57.02.040, supra, calls for the county commissioners themselves to make these requisite determinations.  In so doing, however, it is most certainly permissible for them to receive and consider the "advice" of the appropriate state agencies with respect thereto insofar as subpart (2) is concerned.  And, obviously, if they were to approve a proposed water district formation as being in compliance with a plan approved by those agencies in the face of negative statements such as you report having been submitted by the departments of ecology and social and health services in the instant case, they would then be under a very heavy burden to justify that action if it were later challenged in court ‑ or risk having it successfully attacked, and overturned, as constituting arbitrary and capricious action.
            It is hoped that the foregoing will be of some assistance to you.
Very truly yours,

Attorney General

Deputy Attorney General

                                                         ***   FOOTNOTES   ***
1/We say "significantly restricts" rather than "prohibits" only because of the second paragraph of RCW 56.02.070 under which it is possible to have the county commissioners' disapproval overridden by a boundary review board operating under chapter 36.93 RCW if such a review board exists in the particular county; otherwise, the decision of the county legislative authority is declared by that statute to be final.

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