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AGO 1991 No. 28 - September 16, 1991
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

BOUNDARY REVIEW BOARD ‑- DEPARTMENT OF HEALTH ‑- WATER ‑- COUNTIES ‑- CITIES AND TOWNS ‑- Authority of Boundary Review Board to Review Extension of Water Service When the Extension Occurs Pursuant to a Coordinated Water System Plan.

RCW 70.116.020 establishes the procedure for adopting coordinated water system plans in areas designated as critical water supply service areas.  RCW 36.93.090(5) provides that a boundary review board may review extension of water service by a city or town outside existing corporate boundaries.  A boundary review board does not have authority under RCW 36.93.050(5) to review extension of water service beyond corporate city or town limits if it is consistent with the coordinated water system plan adopted pursuant to RCW 70.116.020.

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                                                              September 16, 1991

Honorable Michael E. Rickert
Skagit County Prosecuting Attorney
Courthouse Annex
605 South 3rd Street
Mount Vernon, Washington 98273
                                                                                                                 Cite as:  AGO 1991 No. 28

Dear Mr. Rickert:

            By letter previously acknowledged, you have asked our opinion concerning the authority of a local boundary review board to review a municipality's extension of water service beyond its corporate limits consistent with the provisions of a coordinated water system plan.  Your question is as follows:

             [[Orig. Op. Page 2]]

            Where a coordinated water system plan has been approved by a county pursuant to chapter 70.116 RCW in which the service area boundary of a city extends beyond the corporate city limits, does a county boundary review board retain authority under RCW 36.93.090(5) to review the subsequent extension of water service beyond the corporate city limit consistent with the plan?

            For the reasons stated in the opinion, the answer to your question is no.

                                                                BACKGROUND

            Your question concerns the effect of a coordinated water system plan established pursuant to chapter 70.116 RCW on the jurisdiction of a local county boundary review board.  The issue you have raised is whether the board retains authority to review an action that is consistent with the plan.

            The proposed action that is the subject of your question is the extension of water service by a municipality outside of its corporate boundaries.  RCW 36.93.090(5) requires a municipality proposing to extend water service outside its boundaries to file a notice of intention with the local boundary review board.  Board review of the proposed action may then be initiated according to procedures set forth in chapter 36.93 RCW.

            If the board's jurisdiction is invoked, a public hearing is held and the board must file a written decision setting forth its findings within 40 days of the final hearing.  RCW 36.93.160.  In reaching a decision the board is to consider several factors, including the adequacy of and future need for municipal services in the area.  RCW 36.93.170.  The board's decision becomes final unless an affected governmental unit or affected individual files an appeal in superior court within ten days of the decision.  RCW 36.93.160(5).

            We must determine whether the board's review authority is superceded when an action otherwise subject to board review is consistent with the provisions of a coordinated water system plan.  A review of the Public Water System Coordination Act of 1977 will provide a background for our analysis.

            The legislative finding in support of the Act states:

             [[Orig. Op. Page 3]]

                        The legislature hereby finds that an adequate supply of potable water for domestic, commercial, and industrial use is vital to the health and well-being of the people of the state.  Readily available water for use in public water systems is limited and should be developed and used efficiently with a minimum of loss or waste.

                        In order to maximize efficient and effective development of the state's public water supply systems, the department of social and health services shall assist water purveyors by providing a procedure to coordinate the planning of the public water supply systems.

RCW 70.116.010.

            The purposes of the Act are:

                        (1) To provide for the establishment of critical water supply service areas related to water utility planning an development;
                        (2) To provide for the development of minimum planning and design standards for critical water supply service area so insure that water systems developed in these areas are consistent with regional needs;
                        (3) To assist in the orderly and efficient administration of state financial assistance programs for public water systems; and
                        (4) To assist public water systems to meet reasonable standards of quality, quantity and pressure.

RCW 70.116.020.

            To further the above purposes, the Act established a six-step procedure for adopting a coordinated water system plan in an area designated as a critical water supply service area.  The 1977 Final Legislative Report summarizes the six-step procedure as follows:

                        (1) The Secretary of the Department of Social and Health Services, or the county legislative authority, may designate an area as being a "critical water supply service area."

             [[Orig. Op. Page 4]]

                        (2) A committee appointed by the Secretary or the county legislative authority and composed of representatives of water purveyors, county legislative authorities and county health and planning agencies shall determine within 6 months of their appointment the boundaries of the critical water supply service areas.  Such boundaries may be revised by the same procedure under which they are established.

                        (3) The total service area is divided into local service areas for the different water purveyors.  These boundaries of the local service areas shall be put in the form of a written agreement between the purveyors, and are subject to approval by the county legislative authority.  In case no agreement is reached, or if the county files objections to the proposed boundaries, the Secretary of the Department of Social and Health Services shall hold a public hearing, and may restrict expansion of any purveyor until an agreement is reached.

                        (4) Each water purveyor shall develop a water service plan for his service area.

                        (5) The individual plans are coordinated by the committee to form one plan.  This plan is reviewed by the county legislative authority for consistency with land use plans and the legislative authority may, within 60 days, file objections with the Secretary of the Department of Social and Health Services.

                        (6) The coordinated water system plan is submitted to the Secretary of the Department of Social and Health Services for technical approval.  Upon his approval all water purveyors shall comply with the plan.

1977 Final Legislative Report, SHB 165 at p. 141/

             [[Orig. Op. Page 5]]

            Following the secretary' approval of a coordinated water system plan, all purveyors constructing or proposing to construct public water systems facilities within the plan area are to comply with the plan.  No other purveyor may establish a public water system within the plan area unless the secretary determines that existing purveyors are unable to provide the service.  If such a determination is made, the secretary may require that the new public water system be constructed in accordance with the construction standards and specifications embodied in the coordinated water system plan approved for the area.  RCW 70.116.060(3).

                                                                     ANALYSIS

            Your question assumes:  (1) the boundaries of a critical water supply area encompass a municipality and a county in which a boundary review board has been established; and (2) a coordinated water system plan provides that the municipality may extend its water service to an area outside its corporate limits.  Given these assumptions, you ask whether an action consistent with the plan is subject to board review.  This question has not been addressed in any court decisions or Attorney General Opinions.  We are mindful that an affirmative answer would give a local boundary review board the ability to block a municipality's proposal to provide water service in conformance with the plan.  In our opinion the legislature did not intend boundary review boards to have such authority.

            As a general rule, a subsequent enactment of a statute which treats a phase of the same general subject matter in a more specific way will be construed to repeal the provisions of the general statute to the extent they irreconcilably conflict.  Sutherland Stat. Const. § 23.16 (4th Ed).  Although implied repeals are not favored, a later act will operate to repeal an earlier act if the later act is intended to supercede the prior act, or the two acts are so clearly inconsistent that they cannot both be given effect.  In Re Estate of Little, 106 Wn.2d 269, 284, 721 P.2d 950 (1986); State v. Becker, 39 Wn.2d 94, 234 P.2d 897 (1951).  We believe these principles apply in this instance.

             [[Orig. Op. Page 6]]

            A coordinated water system plan results from a lengthy procedure which allows the input of the public, water suppliers, legislative authorities, and local zoning and planning agencies within the critical water supply service area.  The proposed plan is developed by a committee consisting of representatives from each of these affected groups.  RCW 70.116.040; WAC 248-56-500 (recodified as WAC 246-93-150).  The committee is charged with the responsibility of incorporating into the coordinated plan all the water system plans developed by each purveyor.  RCW 70.116.050.

            Future service areas of each purveyor are to be consistent with adopted land use plans, ordinances and growth policies of the cities, towns and counties located within future service area boundaries.  WAC 248-56-730 (now 246-293-250).  Before a coordinated plan is submitted to the Department of Health for approval, the plan must be reviewed by the county legislative authority for consistency with existing land use policies.  The final coordinated plan is intended to identify and meet the present and future water supply needs of the area covered by the plan.  RCW 70.116.030.2/

             The plan establishing proposed service are boundaries is then submitted to the appropriate legislative authority for approval pursuant to RCW 70.116.070, which provides:

                        (1) The service area boundaries of public water systems within the critical water supply service area shall be determined by written agreement among the purveyors and with the approval of the appropriate legislative authority.  Failure of the legislative authority to file with the secretary objections to the proposed service area boundaries within sixty days of receipt of the proposed boundary agreement may be construed as approval of the agreement.

                        (2) If no service area boundary agreement has been established within a reasonable period of time, or if the legislative authority has filed with the secretary objections in writing as provided in subsection (1) of this section, the secretary shall hold a public hearing thereon.  The secretary shall provide notice of the hearing by certified mail to each purveyor providing service in the critical water supply  [[Orig. Op. Page 7]] service area, to each county legislative authority having jurisdiction in the area and to the public.  The secretary shall provide public notice pursuant to the provisions of chapter 65.16 RCW.  Such notice shall be given at least twenty days prior to the hearing.  The hearing may be continued from time to time and, at the termination thereof, the secretary may restrict the expansion of service of any purveyor within the area if the secretary finds such restriction is necessary to provide the greatest protection of he public health and well-being.

RCW 70.116.070.3/

            (Laws of 1977, ch. 142, § 7.)

            As RCW 70.116.070 provides, the secretary must hold a hearing if the legislative authority objects to proposed water service area boundaries.  All affected parties are given an opportunity to present arguments in support of or against the proposed service area boundaries.  Once this process has been completed and the final plan has been approved by the secretary, all purveyors constructing or proposing to construct water system facilities are to comply with the plan.  RCW 70.116.060.

            Obviously, the Legislature intended for the terms of the final plan to be implemented as approved.  If we were to interpret RCW 39.93.090(5) as applying to actions that are consistent with an approved coordinated water system plan, RCW 70.116.060 would be rendered meaningless.  Such an interpretation would, in essence, create an exception to RCW 70.116.060 in geographical areas falling within the jurisdiction of boundary review boards.  Statutes should not be interpreted so as to render another provision meaningless.  Schrempp v. Munro, 116 Wn.2d 929, 809 P.2d 1381 (1991).

             [[Orig. Op. Page 8]]

            Our conclusion is consistent with the legislative history of the Act, which suggests boundary review board procedures were not intended to govern conflicts concerning proposed service area boundaries.  The Act was first introduced in the House as HB 165.  As originally proposed, Section 7 of HB 165 read:

                        (1) The service area boundaries of public water systems within the critical water supply service area shall be determined by written agreement among the purveyors and with the concurrence of the appropriate legislative authorityand the local boundary review board, if any:  PROVIDED, That where a local boundary review board exists, the procedures established pursuant to chapter 36.93 RCW shall govern where conflicts concerning proposed boundaries occur.  Failure of the legislative authority or boundary review board to file with the secretary objections to the proposed service area boundaries within sixty days of receipt of the proposed boundary agreement may be construed as concurrence with the agreement.

                        (2) If no service area boundary agreement has been established within a reasonable period of time, or if the legislative authority or boundary review board has filed with the secretary objections in writing as provided in subsection (1) of this section, the secretary shall hold a public hearing thereon.  The secretary shall provide notice o the hearing by certified mail to each purveyor providing service in the critical water supply service area, to each county legislative authority andboundary review board, if any, having jurisdiction in the area and to the public. . . .

HB 165, § 7.  State of Washington Printed Bills of the Legislature, Forty-fifth Session, House, 101-250 (1977) (emphasis added).

            All subsequent drafts of Section 7 retained the phrase "appropriate legislative authority," but omitted all references to boundary review board.  See SHB 165 and ESB 165.  Id.  These versions of the bill also deleted the proviso in subsection (1) which would have made board review procedures applicable in the event of conflicts concerning proposed service area boundaries.  As enacted, Section 7 gave the Secretary of Social and Health Services the exclusive authority to resolve conflicts over proposed service area boundaries.  RCW 70.116.070.

             [[Orig. Op. Page 9]]

            It seems evident the Legislature did not intend boundary review boards to become involved in disputes over proposed service area boundaries.  Furthermore, once a coordinated plan has been approved by the Department of Health, the Legislature intended the plan to be implemented as approved.

            For the above reasons, we conclude that a local boundary review board has no authority to review the extension of water service by a municipality outside of its boundaries if the extension is consistent with an approved coordinated water system plan.  We note our conclusion would not affect a boundary review board's jurisdiction to review actions which are not covered by a coordinated water system plan.

            We trust this opinion will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

ALICE M. BLADO
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/In 1989 the responsibility for approving coordinated water system plans was transferred from the Secretary of the Department of Social and Health Services to the Secretary of the newly created Department of Health.  RCW 43.70.080.  Regulations adopted under the act were recodified under chapter 246-293 WAC.  WSR 90-22-094 (Nov. 1991).  Effective July 28, 1991, references in chapter 70.116 RCW to the Department of Social and Health Services and the Secretary of Social and Health Services are changed to the Department of Health and Secretary of Health.  Laws of 1991, ch. 3, §§ 365-66.

2/Boundary review boards are required to consider similar factors, such as the effect of the proposed action on existing land use plans and municipal services.  RCW 36.93.170.

3/A water service area means " a specific geographical area serviced or for which service is planned by a purveyor."  RCW 70.116.030(6).  A purveyor means "any agency or subdivision of the state or any municipal corporation, firm, company, mutual or cooperative association, institution, partnership, or person or any other entity, that owns or operates for wholesale or retail service a public water system."  RCW 70.116.030(4).

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