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AGO 1991 No. 4 - February 05, 1991
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

DEPARTMENT OF ECOLOGY ‑- ECOLOGICAL COMMISSION ‑- ADMINISTRATIVE LAW ‑- RULES AND REGULATIONS ‑- SHORELINE MANAGEMENT ACT

1.  RCW 43.21A.190 provides that the Ecological Commission shall provide advice and guidance to the Director of the Department of Ecology with regard to the adoption of rules and regulations.  The Commission's role is limited to providing advice and guidance.  The Commission does not have the authority to prevent the Director from adopting regulations, that members of the Commission disapprove.  This applies to regulations that the Director adopts in connection with the Shoreline Management Act.

2.  RCW 43.21A.190, by its terms, does not apply to the Department of Ecology's responsibilities in the area of water resources.  Thus, the Director need not seek the advice and guidance of the Ecological Commission on water resource regulations.  The Commission does not have the authority to prevent the Director from adopting regulations relating to water resources.

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

                                                                 February 5, 1991

Christine Gregoire
Director
Department of Ecology
Mail Stop:  PV-11
Olympia, Washington 98504-8711

Fred Shiosaki
Chairman
Ecological Commission
c/o Washington Water Power
East 1411 Mission
Spokane, Washington

                                                                                                                   Cite as:  AGO 1991 No. 4

Dear Ms. Gregoire and Mr. Shiosaki:

            By letter previously acknowledged you jointly requested our opinion on the following paraphrased questions:

             [[Orig. Op. Page 2]]

            1. Does the Ecological Commission possess authority to disapprove prior to adoption, in whole or in part, shoreline management programs developed in accordance with the Shoreline Management Act of 1971, chapter 90.58 RCW?

            2. Does the Ecological Commission possess authority to disapprove prior to adoption, in whole or in part, rules relating to water resource management proposed by the Department of Ecology?

            We answer both questions in the negative based upon the following analysis.

                                                                     ANALYSIS

            Strenge v. Clarke, 89 Wn.2d 23, 29, 569 P.2d 60 (1977) summarizes the applicable rules of statutory construction.

                        Finally, the fundamental object of statutory interpretation is to ascertain and give effect to the intent of the legislature.  In so doing, first consideration is given to the context and subject matter of the statute itself.  Moreover, legislative intent is to be ascertained from the statutory text as a whole, interpreted in terms of the general object and purpose of the legislation.  State v. Sponburgh, 84 Wn.2d 203, 210, 525 P.2d 238 (1974).  Further, a statute is to be construed with reference to its manifest object.  If the language is susceptible of two constructions, one which will carry out and the other defeat that object, it should receive the former construction.  Miller v. Paul Revere Life Ins. Co., 81 Wn.2d 302, 310, 501 P.2d 1063 (1972).

With these rules in mind we turn to your first question.

            Question 1:

            Does the Ecological Commission possess authority to disapprove prior to adoption, in whole or in part, shoreline management programs developed in accordance with the Shoreline Management Act of 1971, chapter 90.58 RCW?

            Your first question concerns the interplay between the statutory roles of the Ecological Commission and the Department of Ecology.  The powers of the Ecological Commission are described in RCW 43.21A.190 (Laws of 1988, ch. 127, § 24, p. 446) which reads:

             [[Orig. Op. Page 3]]

            It shall be the duty of the members of the commission to provide advice and guidance to the director [of ecology] on each of the following:

                        (1) Any positions proposed to be taken by the department on behalf of the state before interstate and federal agencies or federal legislative bodies on matters relating to or affecting the quality of the environment of the state;

                        (2) Any comprehensive environment quality plan, program or policy proposed for adoption by the department as a state plan or policy pertaining to an environmental management activity;

                        (3) Any procedures for the financial assistance grants proposed to be given to municipal, regional, county or state organizations for environmental quality purposes;

                        (4) Any procedures for considering applications for and granting variances;

                        (5) Any proposal developed for submission to the legislature as a departmental request bill;

                        (6) Any other matter pertaining to the activities of the department submitted by the director for which advice and guidance is requested.

                        The director shall submit in writing to each member of the commission all rules and regulations, other than for procedural matters, proposed by him for adoption in accordance with the procedures of chapter 34.05 RCW.  Unless, within thirty days of such notification, five of the members of the commission, notify the director in writing of their disapproval of such proposed rules and regulations and their reasons therefor, such rules and regulations shall be adopted by the director in accordance with the procedures of chapter 34.05 RCW.

                        No powers, duties and functions relating to water resources authorized to be performed by the department of ecology, or the director thereof, by the terms of chapter 43.27A RCW or otherwise shall be affected by this section.

(Emphasis added.)

             [[Orig. Op. Page 4]]

            The language prompting your question is emphasized and, standing alone, might be interpreted as imposing Ecological Commission approval as a necessary antecedent to the exercise of regulatory powers otherwise secured to the Department.1/

            But the general rule of harmonious statutory interpretation requires that we examine the background and framework of the Department's rule‑making authority in relation to this statute.  Statutes pertaining to the same subject matter must be interpreted so as to give a reasonable effect to each statute, if possible.  State v. Bell, 59 Wn.2d 338, 356, 368 P.2d 177 (1962).

            The Shoreline Management Act of 1971, chapter 90.58 RCW (hereinafter SMA) was a referendum submitted by the Legislature to the electorate as an alternative to Initiative 43.  It was voted into law in 1972. Its policy was declared to "provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses."  RCW 90.58.020.  Criteria for uses of shorelines are described and preferred uses in a descending order of preference, are set forth.  Id.  "Shorelines" and "shorelines of state‑wide significance" are defined in RCW 90.58.030(2)(c); (d) and (e).  Planning procedures are described for each category.  RCW 90.58.100.2/

            Local government is given the primary authority for drafting a "shorelines" program in accordance with guidelines promulgated by the Department.  RCW 90.58.080 and [90.58].090.3/

            The statutory process was described in Weyerhaeuser Co. v. King County, 91 Wn.2d 721, 729, 592 P.2d 1108 (1979):

            The SMA requires each local government to develop a master program for the use and development of shorelines within its boundaries.  RCW 90.58.080.  The programs, once approved by the Department of Ecology, operate as controlling use regulations for the various shorelines of the state.  RCW 90.58.100.

            The Department may either approve the plan for "shorelines  [[Orig. Op. Page 5]] of state‑wide significance,"4/

            generated by local government or rewrite it if it "does not provide the optimum implementation of the policy of this chapter to satisfy state‑wide interest."  RCW 90.58.090(2).  As to both categories of shorelines, all master programs have been approved and promulgated as regulations by the Department.  See Chapter 173-19 WAC.

            Local governments are given the right to appeal master programs adopted or approved by the Department to the Shoreline Hearings Board.  RCW 90.58.180(4).5/

            Board decisions regarding shoreline master programs are, in turn, subject to review in the superior court. RCW 90.58.180(5).6/

            The Board is empowered to enact rules of administrative practice and procedure for conducting its hearings.  RCW 90.58.175.

            In light of the detailed provisions delineating the respective powers and functions between local governments and the Department relating to the development of shoreline master programs, can the duty to provide "advice and guidance" to the Department be construed to include the power to reject, in whole or in part, such programs?  The answer must be in the negative for several reasons.

            Addressing the first portion of the statute, it is clear that the sole function of members of the Ecological Commission is to provide "advice and guidance."  These terms are defined in the Webster's New World Dictionary, Second College Edition (1982), as follows:7/

            Advice:  1.  Opinion given as to what to do or how to handle a situation; counsel.

             [[Orig. Op. Page 6]]

            Guidance:  1. The act of guiding; direction; leadership.  2. Something that guides.  3. Advice or assistance, as that given to students by vocational or educational counselors.

            Neither the giving of advice or providing of guidance to the Department supports the conclusion that a binding review of the merits of a shoreline master program by the Commission was contemplated by the Legislature.  There is no statutory requirement that Commission advice be consistent with SMA policies or that such advice be based on an evidence produced at a due process hearing.  It is only in an advisory sense that individual members of the Commission are given the opportunity to notify the Department of their disapproval of proposed rules and regulations.  This conclusion is reinforced by the statutory characterization of the Commission's role as one of providing advice and guidance.  See RCW 43.21A.200.  Statutes relating to the same subject matter are to be considered together to ascertain legislative policy and intent.  Bennett v. Hardy, 113 Wn.2d 912, 926, 784 P.2d 507 (1990).

            Moreover, as observed by the court in Asarco, Inc. v. Air Quality Coalition, 92 Wn.2d 685, 697, 601 P.2d 501 (1979):

            The source of a board or agency's powers and duties is statutory.  Thus, it is for the legislature to decide whether one agency may review the acts of another, the extent of that review, whether an agency or board may have its decisions or orders reviewed judicially, and at what stage of the proceeding.

(Citation omitted.)  When the Legislature intends to confer review authority over one agency's decisions upon another agency, it does so by plain language and there is no need to resort to inference and implication.  See e.g., RCW 90.58.180(4) which provides that local governments may appeal to the Shorelines Hearings Board rules, regulations and guidelines adopted by the Department of Ecology.  The Board has the power to "enter a final decision declaring the rule, regulation, or guideline invalid . . . and directing the department to adopt . . . a new rule, regulation, or guideline."Id.

            Ortblad v. State, 85 Wn.2d 109, 530 P.2d 635 (1975) illustrates this point.  The court was called upon to decide whether the budget director possessed the power to review and alter pay plans adopted by the Personnel Board.  RCW 43.88.160(1)(c) provides, in relevant part:

            [The budget director] shall advise and confer with agencies including the legislative budget committee and  [[Orig. Op. Page 7]] legislative council regarding the fiscal impact of such plansand may amend or alter such plans . . . .

Ortblad, 85 Wn.2d at 113.  (Emphasis added).  The express power to "amend or alter" pay plans was pivotal to the conclusion that the statute granted the budget director power beyond that of simply conferring or giving advice about the contents of the pay plan.  Ortblad, 85 Wn.2d at 113-14.  In the instant case, no similar express language granting the power to amend, alter or veto rules or regulations formulated and adopted by the Department pursuant to legislative grants of authority is found in RCW 43.21A.190.

            In our judgment RCW 43.21A.190 does not expressly grant the Ecological Commission the power to veto rules and regulations proposed by the Department for adoption.  As we have pointed out, RCW 43.21A.190 provides that commission members shall provide "advice and guidance to the director."  The language in RCW 43.21A.190 dealing with rules and regulations does not go beyond the function of advice and guidance.  RCW 43.21A.190 provides in part:

            The director shall submit in writing to each member of the commission all rules and regulations, other than for procedural matters, proposed by him for adoption in accordance with the procedures of chapter 34.05 RCW.  Unless, within thirty days of such notification, five of the members of the commission, notify the director in writing of their disapproval of such proposed rules and regulations and their reasons therefor, such rules and regulations shall be adopted by the director in accordance with the procedures of chapter 34.05 RCW.

            This language does not state that five members of the Commission can veto a proposed regulation.  We will not read that meaning into the plain language of the statute.

            Our conclusion that the Commission does not have veto power does not render the Commission superfluous.  The Commission has an important role to play in providing advice and guidance to the Department.  The legislative history of the law creating the Department and the Commission established that the Commission was created for the purpose of providing advice and guidance to the Department.

            The Department and the Commission were created in 1970.  Laws of 1970, Ex. Sess., ch. 62, § 4, p. 574, § 17, p. 578.  At that time, there were two views as to how the agency should be organized.  One view was that the Department should be run by a commission.  The other view was that it should be run by a strong  [[Orig. Op. Page 8]] executive.  In adopting chapter 43.21 RCW, the Legislature made a specific policy choice.

            Chapter 43.21 RCW was introduced in the Senate as Senate Bill 1.  Senate Journal, 41st Legislature (1970) at 13.  Senate Bill 1 was amended on second reading and passed by the Senate.  Id. at 201, 204.  As passed by the Senate, rulemaking was placed in the hands of a seven-member board:

            The duties of the pollution control board shall be as follows:

            (1)  Adopt, amend or repeal rules and regulations for the proper administration of this act as proposed by the department;
            (2) Approve or disapprove positions proposed to be taken by the department on behalf of the state before interstate and federal agencies or federal legislative bodies on matters relating to or affecting the quality of the environment of the state;
            (3) Approve or disapprove of any comprehensive pollution quality plan or policy proposed for adoption by the department as a state plan for the control of pollution;
            (4) Establish procedures for the financial assistance grants proposed to be given to municipal, regional, county, or state organizations for pollution control purposes;
            (5) Establish procedures for considering applications for variances.

           . . . .

Engrossed Senate Bill 1, Section 7.  State of Washington Printed Bills of the Legislature, 41st Session, Senate, 1-125 (1970) (hereinafter Senate Bills).

            The House of Representatives enacted a substantially amended version of Engrossed Senate Bill 1.  House Journal, 41st Legislature (1970) at 279, 302, 323.  The House version of Engrossed Senate Bill 1 empowered the director of the agency to "adopt such rules and regulations as are necessary and appropriate to carry out the provisions of this chapter."  Engrossed Senate Bill 1 (as amended by the House), Section 8, Senate Bills (1970).  The board, now referred to as a commission, was given an advisory role:

             [[Orig. Op. Page 9]]

            It shall be the duty of the members of the environmental quality advisory council to provide advice and guidance to the director on each of the following:

            (1) Rules and regulations, other than those relating to procedural matters, proposed for adoption by the director in accordance with procedures in chapter 34.04 RCW.
            (2) Any comprehensive plan or program proposed for adoption by the director pertaining to an environmental management activity.
            (3) Any proposal developed for submission to the legislature as a departmental request bill.
            (4) Any other matter pertaining to the activities of the Department of Environmental Quality submitted by the director for which advice and guidance is requested.

Id.at Section 19, Senate Bills (1970).

            Subsequently, the House and Senate could not agree and a free conference was approved.  Senate Journal, 41st Legislature (1970), at 478; House Journal, 41st Legislature (1970), at 529.  The report of the free conference was passed by both the House and Senate and is now codified as chapter 43.21 RCW.  Senate Journal, 41st Legislature (1970), at 489-99; House Journal, 41st Legislature (1970), at 531-41.  RCW 43.21A.190 follows the view of the House that the Ecological Commission should have an advisory role.

            This advisory role is consistent with rules adopted by the Department of Ecology relating to the role of the Ecological Commission.  WAC 173-12-010 provides:

            The ecological commission, hereinafter referred to as the commission, was established to provide advice and guidance to the director of the department of ecology on various matters before action is taken by the director. . . .

WAC 173-12-020 provides:

            The director, as required by RCW 43.21A.190, shall submit all regulations, other than those relating to procedural matters, to the members of the commission to obtain their advice and guidance. . . .

             [[Orig. Op. Page 10]]

WAC 173-12-050 provides:

            Except as hereafter provided in this section, the director shall not adopt a regulation, other than those pertaining to procedural matters, until thirty days after the director's request for views of the commissioners:  Provided,however, That whenever a regulation is designated by the director as an emergency regulation, the director may adopt said regulation as soon as he has received the views of at least three commissioners generally approving the regulation as proposed by the director.

            These regulations clearly indicate that the Commission is providing advice and guidance to the Department with regard to its regulations.  There is no provision that indicates that the Ecological Commission may veto the Department's proposed regulations.  The only restriction on the director is contained in WAC 173-12-050, that provides that the director will not adopt regulations until 30 days after the request for the views of the commissioners.

            It is significant that these rules were adopted in 1971, shortly after the creation of the Department and the Commission.  Thus, they may reflect the understanding at the time, that the role of the Commission, was to provide advice and guidance.  There is nothing in the rules to suggest that the Commission may veto proposed departmental rules.

            It is clear that the SMA was carefully crafted to establish joint local government and departmental development and adoption of shoreline master programs.  Their respective spheres of action were described and procedural safeguards were carefully included.8/

            We cannot ascribe a legislative intent to insert the Ecological Commission into the shoreline master program review process in other than an advisory capacity without doing violence to the detailed SMA process and procedures and also by basing such a conclusion on inference and implication from the language of subsection (6) of RCW 43.21A.190 previously discussed.

            Finally, we note that it is state policy to establish a single state agency (the Department of Ecology) with authority to  [[Orig. Op. Page 11]] manage various environmental protection programs as may be authorized from time to time by the Legislature.  RCW 43.21A.020.  We are loathe by implication to read into the Ecological Commission's enabling statutes an expansion of its authority which would be out of harmony with the SMA and which would conflict with state policy regarding the Department's primary authority over environmental programs.  We are admonished, to the contrary, to give the SMA a liberal construction "to give full effect to the objectives and purposes for which it was enacted."  RCW 90.58.900.  See English Bay Ent. v. Island County, 89 Wn.2d 16, 20, 568 P.2d 783 (1977).

            Accordingly, we conclude that the Ecological Commission does not possess authority to approve, disapprove or condition which regulations which are otherwise acceptable to the Department of Ecology and within the legislative grant of authority.  The Commission's role is restricted to that of conferring and giving advice to the Department regarding the matters identified in RCW 43.21A.190.9/

             As we have previously pointed out, the advisory function of the Ecological Commission is an important one.  If five members of the Ecological Commission disapprove a proposed rule, the Department might rethink the wisdom of adopting the rule.  Consistent with this, is our understanding that the Department has in the past declined to adopt rules disapproved of by five members of the Commission.  However, in our judgment the Commission's role is limited to providing advice and guidance to the Department.  The Department has the power to adopt a rule even if five members of the Commission disagree.

             [[Orig. Op. Page 12]]

            Question 2:

            Your second question asks whether the Ecological Commission possesses similar approval power over rules relating to water resource management proposed by the Department of Ecology.

            We answer this question in the negative as well for the same reasons set out in our response to your first question, i.e., the sole statutory grant of power to the Commission is to confer with and advise the Department.  Put another way, the language of RCW 43.21A.190 means that the Department may seek the advice of the Ecological Commission on such matters but is not bound to do so.  Nor is the Department required to follow such advice in terms of formulating and adopting rules relating to water resource management.

            Also, unlike other areas of the Department's responsibility, the Department need not seek the Commission's advice and guidance with regard to its functions and duties relating to water resources.  The final paragraph of RCW 43.21A.190 provides:

            No powers, duties and functions relating to water resources authorized to be performed by the department of ecology, or the director therefor, by the terms of chapter 43.27A RCW or otherwise shall be affected by this section.

A proper interpretation of the Ecological Commission's advisory authority clearly does not extend to the Department's regulatory implementation of laws relating to water resource management.  See RCW 43.27A.130.  The plain language of the exception mandates the conclusion that the Ecological Commission does not possess a veto power over water resource regulations adopted by the Department.  See Hewson Constr. v. Reintree Corp., 101 Wn.2d 819, 826, 685 P.2d 1062 (1984).

            We hope these responses to your questions will prove to be of assistance.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

J. LAWRENCE CONIFF
Senior Counsel
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In this opinion we refer to the "Department" to mean both the Department of Ecology and its director.
2/See generally, G. Crooks,The Washington Shoreline Management Act of 1971, 49 Wash. L. Rev. 423 at pp. 436-443 (1974) for a discussion of the two similar development plan approval processes under the SMA.
3/The guidelines are found in Chapter 173-16 WAC.
4/RCW 90.58.030(2)(e) defines shorelines of statewide significance geographically.
5/Note that the Ecological Commission is not given the right to appeal shoreline master programs as adopted or approved by the Department.
6/Department of Highways v. King Co. Chapter of the Environmental Council, 82 Wn.2d 280, 287, 510 P.2d 216 (1973) confirms superior court jurisdiction to review Board orders.
7/It is appropriate to resort to dictionaries to ascertain legislative intent.  SeeMarino Prop. v. Port of Seattle, 88 Wn.2d 822, 833, 567 P.2d 1125 (1977).
8/The absence of a due process hearing, authority to establish hearing procedures and any opportunity for further review of Ecological Commission determinations is also persuasive that the Commission's role was intended to be advisory only.
9/The Shorelines Hearings Board has ruled that the Ecological Commission's authority, as it relates to the SMA, does not extend beyond that of rendering advice.  San Juan County v. Ecological Commission, SHB No. 88-52 issued April 7, 1989.  We are also aware of the rule that the construction given a statute by an agency charged with its implementation, while not binding on the courts, is entitled to be given great weight in determining legislative intent.  See Hama Hama Co. V. Shorelines Hearings Bd, 85 Wn.2d 441, 448, 536 P.2d 157 (1975).  We, however, prefer to rely on the primary rules of statutory interpretation rather than a discretionary rule of deference to agency decision even though the SHB result is consistent with our conclusion.

 

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