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AGO 1988 No. 18 - September 22, 1988
AGO Opinion Header Image
Ken Eikenberry | 1981-1992 | Attorney General of Washington

BUDGET AND APPROPRIATION ACTS ‑- PUBLIC FUNDS ‑- ECOLOGY DEPARTMENT 

In distributing funds for water pollution control projects under chapter 70.146 RCW (Water Pollution Control Facilities Financing), the Department of Ecology is required to distribute funds according to percentages set forth in RCW 70.146.060, those percentages to be applied to the total amount distributed over an eight-year period, but the Department is not required to stay within those percentages in any given fiscal year (except as to a percentage statutorily set aside for the State Conservation Commission). 

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                                                              September 22, 1988 

Honorable David F. Thiele
Prosecuting Attorney
Island County Courthouse
P.O. Box 430
Coupeville, Washington 98239

Cite as:  AGO 1988 No. 18                                                                                                                

 Dear Mr. Thiele:

             By letter previously acknowledged, you requested our opinion on a question which we paraphrase as follows:

             In distributing funds for water pollution control projects under chapter 70.146 RCW, to what extent is the Department of Ecology required to distribute the funds according to the percentages set forth in RCW 70.146.060?

 We answer your question as set forth in the analysis.

                                                                      ANALYSIS

            Chapter 70.146 RCW was originally enacted in 1986.  Laws of 1986, ch. 3.  The purpose of the chapter is

             to provide financial assistance to the state and to local governments for the planning, design, acquisition, construction, and improvement of water pollution control facilities and related activities in the achievement of state and federal water pollution  [[Orig. Op. Page 2]] control requirements for the protection of the state's waters.

 RCW 70.146.010.

             The purpose is accomplished as follows:  The act establishes a "water quality account" with funds raised through various tax sources.  RCW 70.146.030(1).  This account is administered by the Department of Ecology.  Id.  The Department may use or permit the use of moneys in the account to make grants or loans to public bodies for water pollution control facilities and activities under the chapter.  RCW 70.146.030(2).  The act sets forth various factors for the Department to consider when making grants or loans.  RCW 70.146.070.  See also RCW 70.146.010.

             Your inquiry arises from RCW 70.146.060, originally enacted as section 9 of chapter 3, Laws of 1986, which reads in part:

                         During the period from July 1, 1987, until June 30, 1995, the following limitations shall apply to the department's total distribution of funds appropriated from the water quality account:

                         (1) Not more than fifty percent for water pollution control facilities which discharge directly into marine waters;

                        (2) Not more than twenty percent for water pollution control activities that prevent or mitigate pollution of underground waters and facilities that protect federally designated sole source aquifers with at least two-thirds for the Spokane‑Rathdrum Prairie Aquifer;

                         (3) Not more than ten percent for water pollution control activities that protect freshwater lakes and rivers including but not limited to Lake Chelan and the Yakima and Columbia rivers;

                         (4) Not more than ten percent for activities which control nonpoint source water pollution;

                         (5) Ten percent and such sums as may be remaining from the categories specified in subsections (1) through (4) of this section for water pollution control activities or facilities as determined by the department; and

                         (6) Two and one‑half percent of the total amounts of moneys under subsections (1) through (5) of this section from February 21, 1986, until December 31,  [[Orig. Op. Page 3]] 1995, shall be appropriated biennially to the state conservation commission for the purposes of this chapter.  Not less than ten percent of the moneys received by the state conservation commission under the provisions of this section shall be expended on research activities.

                         The distribution under this section shall not be required to be met in any single fiscal year.

                        . . .

                         Funds provided for facilities and activities under this chapter may be used for payment to a service provider under a service agreement pursuant to RCW 70.150.060.  If funds are to be used for such payments, the department may make periodic disbursements to a public body or may make a single lump sum disbursement.  Disbursements of funds with respect to a facility owned or operated by a service provider shall be equivalent in value to disbursements that would otherwise be made if that facility were owned or operated by a public body.  Payments under this chapter for waste disposal and management facilities made to public bodies entering into service agreements pursuant to RCW 70.150.060 shall not exceed amounts paid to public bodies not entering into service agreements.

 RCW 70.146.060 was originally enacted as section 9 of chapter 3, Laws of 1986.

             Your question is whether in distributing funds from the water quality account, the Department must make such distributions in accordance with the percentages set forth in the above section.  For example, must approximately 20 percent of such distributions be made "for water pollution control activities that prevent or mitigate pollution of underground waters and facilities that protect federally designated sole source aquifers . . ."?  See RCW 70.146.060(2).

            Well-established principles of statutory construction guide us in analyzing your question.  The primary objective of statutory construction is to carry out the intent of the Legislature.  Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wn.2d 748, 751, 675 P.2d 592 (1984),cert. denied, 471 U.S. 1015 (1985).  An act must be construed as a whole, giving effect to all the language used, considering all provisions in relation to each other, and, if possible, harmonizing all to insure proper construction of each provision.  Newschwander v. Board of Trustees, 94 Wn.2d 701, 707, 620 P.2d 88 (1980).  The legislative intent behind a statute is not to be determined by a single  [[Orig. Op. Page 4] ] sentence.  Human Rights Comm'n v. Cheney Sch. Dist. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982).

             The first portion of RCW 70.146.060, read in isolation, suggests that the percentages in the statute are intended only as maximum amounts to ensure that the Department does not distribute a disproportionately large percentage of the funds to any one type of program and suggests that the Department does not necessarily have any affirmative duty to distribute funds in the percentages set forth in the statute.

             However, the next portion of RCW 70.146.060 suggests a contrary intent.  This sentence reads:  "The distribution under this section shall not be required to be met in any single fiscal year."  This sentence, which is original to the act, suggests that the percentages in the statute are indeed at least guidelines for the Department's distribution of water quality account funds.  If the Department had no obligation to distribute funds in approximately the percentages in the statute, this sentence would have been unnecessary.  The sentence implies that there is a requirement that this distribution formula be met in some period longer than a single fiscal year.  Other sections of chapter 70.146 RCW further support this interpretation.  See RCW 70.146.010 ("distribution of moneys [is to] be made on an equitable basis"); RCW 70.146.040.

             We conclude, therefore, that the language of the statute reasonably may be interpreted in more than one way and, hence, is ambiguous.  See Adams v. Department of Social & Health Servs., 38 Wn. App. 13, 16, 683 P.2d 1133 (1984).  Where a statute is ambiguous, it is proper to resort to extrinsic aids such as legislative history to discern legislative intent.  Paulson v. County of Pierce, 99 Wn.2d 645, 650, 664 P.2d 1202, appeal dismissed, 464 U.S. 957 (1983).1/

              There is legislative history directly on point.  When this legislation (Engrossed Substitute Senate Bill 4519) was being considered in the House of Representatives, the following exchange occurred on the floor:

 [[Orig. Op. Page 5]]

                                                             POINT OF INQUIRY

            Mr. Grimm yielded to question by Mr. Day.

             Mr. Day:  "Representative Grimm, is the distribution formula in section 9 of Engrossed Substitute Senate Bill No. 4519 intended to be binding and, if not, to what extent does it deviate from the formula?"

             Mr. Grimm:  "Representative Day, the formula is intended to provide somewhat flexible guidelines for the distribution of money.  It is stated in section 1 of the bill that the intent is for the funds to be distributed upon an equitable basis for the protection of the state's water, taking into account certain local factors.  It is intended the deviations from the formula in this bill be small; that they be made only when clearly necessary to carry out the intent of the bill and that over the life of the program, the total distribution will come out very close to the percentages specified in the bill.  For example, under (2) [sic] of section 9, the Department of Ecology could distribute somewhat less than twenty percent for underground water in any given year after taking into account the required factors, but over the period from July 1, 1987 until June 30, 1995, the funds for underground water should average out close to twenty percent.  Of course, two-thirds of this twenty percent is firmly guaranteed to the Spokane‑Rathdrum Prairie Aquifer."

 Representative Day then spoke in favor of the bill.  House Journal, 49th Legislature (1986), at 447.2/

             This legislative history may be considered in interpreting RCW 70.146.060.  As the Washington Supreme Court stated inSnow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 291, 494 P.2d 216 (1972):

                         While statements and opinions of individual legislators generally are not considered by the courts in construing legislation, statements made in answer to questions on the floor by the chairman of the committee  [[Orig. Op. Page 6]] in charge of the bill may be taken as the opinion of the committee as to the meaning of the bill.

 In this case, Representative Grimm was Chairman of the House Ways and Means Committee, the committee to which the bill had been referred.  See House Journal, 49th Legislature (1986), at 352, 438.

             After reviewing the language of the statute and the legislative history, we conclude that the effect of the percentages set forth in RCW 70.146.060 is as follows:  At the end of the 8-year period ending on June 30, 1995, the funds distributed from the water quality account should have been distributed in accordance with the percentages in the statute as closely as possible but should not have exceeded the maximum percentages set forth in any category.  The Department of Ecology is not required, however, to distribute the funds in any particular year in the percentages set forth in the statute (except for the two and one‑half percent set aside for the state conservation commission, which is to be appropriated biennially pursuant to RCW 70.146.060(6)).  As a practical matter, of course, the Department may well wish to stay rather close to the statutory percentages each year to avoid having to make up for a large deviation in a future year and to avoid inadvertently exceeding the maximum percentages in the statute for the 8-year period.

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

SPENCER W. DANIELS
Assistant Attorney General 

             [[Orig. Op. Page 7]] 

                                                                     APPENDIX

             On motion of Mr. Dellwo, the following letter was ordered spread upon the Journal:

                                                                 February 14, 1986

 Honorable Dennis A. Dellwo
Honorable Bill Day
House of Representatives
Olympia, Washington

Dear Representatives Dellwo & Day:

             This letter is to clarify and reinforce the Department of Ecology's understanding of the distribution formula in section 9 of Engrossed Substitute Senate Bill 4519.

             While it is true that the language in Section 9 does not mandate any spending to fund the categories identified, I do want to emphasize that the department is committed to ensuring that any funds appropriated from the water quality account will be spent in accordance with the bill's formula.

             For example, Subsection 2 states that as for all the funds available in the water quality account, "not more than twenty percent (will be used) for water pollution control activities that prevent or mitigate pollution of underground waters and facilities that protect federally designated sole source aquifers with at least two-thirds for the Spokane‑Rathdrum Prairie Aquifer."  This means that it is the Department's intention to spend twenty percent of all funds available for the activities outlined in subsection 2; and further, to allocateat least two-thirds of those funds for protection of the Spokane aquifer.  These funds will be available to Spokane to match other funds as they are generated locally.

             I hope this letter answers your concern and reassures you of our desire to achieve clean water for all of Washington state.

             [Sincerely,]

            Andrea Beatty Riniker, Director

            Department of Ecology.

 House Journal, 49th Legislature (1986), at 447-48 (emphasis in original).

                                                         ***   FOOTNOTES   ***

 1/There is some authority to the effect that the courts may consider extrinsic aids to interpret statutory language, even without a showing that the language is ambiguous.  See Garrison v. State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976).  Since we have concluded that the statute in question is ambiguous, we need not rely on this line of authority here.

 2/Representative Dellwo then presented a letter from the Director of the Department of Ecology, included as an appendix to this opinion.  The letter is consistent with Representative Grimm's statement.

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