WETLANDS ‑- PUGET SOUND WATER QUALITY AUTHORITY ‑- DEPARTMENT OF ECOLOGY
1. The Department of Ecology has limited authority under chapters 90.48, 90.54 and 90.58 RCW, and certain other statutes to adopt wetlands rules as envisioned in the 1989 Puget Sound Water Quality Authority Management Plan; the exact extent of this authority requires a point-by-point analysis of the subjects covered in the Plan and the type of rule envisioned.
2. Chapter 90.70 RCW, creating the Puget Sound Water Quality Authority and authorizing the development of a management plan for Puget Sound, granted no additional authority to the Department of Ecology to engage in wetlands regulation; thus, in implementing the plan, the Department is limited to activities the Department had pre‑existing statutory authority to undertake.
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December 19, 1989
Christine O. Gregoire, Director
Department of Ecology
Olympia, WA 98504-8711
Cite as: AGO 1989 No. 21
Dear Ms. Gregoire:
By letter previously acknowledged, you requested a formal opinion from this office on two questions which we have rephrased as follows:
1. Does the Department of Ecology have authority under chapters 90.48, 90.54, or 90.58 RCW, or other state laws to promulgate the wetlands protection rules [[Orig. Op. Page 2]] envisioned in the 1989 Puget Sound Water Quality Management Plan?
2. Does chapter 90.70 RCW authorize the Department of Ecology to promulgate the wetlands protection rules referred to in question 1, even if the Department of Ecology had no pre‑existing authority to do so?
We answer your first question in the manner set forth below, and your second question in the negative.
The Puget Sound Water Quality Authority ("Authority"), as it is presently constituted,1/ was created by Laws of 1985, chapter 451.
Among other responsibilities, the Authority is charged with preparing and adopting a comprehensive Puget Sound water quality management plan. The plan was initially presented to the Legislature and the Governor prior to January 1, 1987. RCW 90.70.055(3). The initial plan is required to be reviewed at least every two years and revised as appropriate. Id. Accordingly, on October 19, 1988, the Authority adopted the 1989 Puget Sound Water Quality Management Plan ("1989 Plan").
The 1989 Plan identifies many action areas, such as nonpoint source pollution, shellfish protection, household hazardous waste, and wetlands protection. The Plan also sets forth the basic outline of action plans to address the identified problem areas. The Plan's strategy for addressing wetlands protection contains several parts, but the one of particular interest to you is part W-4 (copy attached). Generally speaking, part W-4 of the 1989 Plan states that the Department of Ecology is to adopt rules in three substantive areas: (1) setting minimum standards for local wetlands programs in the Puget Sound basin, which may include standards for wetland use and development; (2) setting a schedule and process for local legislative bodies and the Department of Ecology to approve the local programs; and (3) establishing minimum requirements for wetland inventories if the Department of Ecology determines that current inventories are not [[Orig. Op. Page 3]] adequate for an enhanced wetlands program involving a net gain of wetlands.2/
We now turn to your first question, repeated here for ease of reference:
Does the Department of Ecology have authority under chapters 90.48, 90.54, or 90.58 RCW, or other state laws3/ to promulgate the wetlands protection rules envisioned in the 1989 Puget Sound Water Quality Management Plan?
[[Orig. Op. Page 4]
Chapter 90.48 RCW
Chapter 90.48 RCW confers certain areas of responsibility and authority on the Department of Ecology with respect to water pollution control. The purpose of chapter 90.48 RCW is to maintain the highest possible water quality consistent with public health and enjoyment, protection of wildlife, and industrial development, and to that end to require the use of reasonable methods by industries and others to prevent and control pollution of the waters of the state. RCW 90.48.010.
RCW 90.48.020 defines "waters of the state" as lakes, rivers, ponds, streams, inland waters, underground waters, salt waters, and all other surface waters and water courses within the jurisdiction of the state. RCW 90.48.030 and [90.48].035 confer on the Department authority to control pollution of the waters of the state and authority to promulgate such rules as it deems necessary to carry out the provisions of chapter 90.48 RCW. In addition, RCW 90.48.270 and [90.48].280 grant the Department authority to adopt plans for water pollution control and abatement in connection with designated sewage drainage basins.
Some of these "waters of the state" and parts of these sewage drainage basins could be "wetlands" as defined in the 1989 Plan. In exercising its authority in these two areas, the Department of Ecology conceivably could determine that it is necessary for water pollution control to set standards for the use and development of certain wetlands and to enhance wetland inventories.4/ If the Department were to make such a determination, it would have authority under chapter 90.48 RCW to adopt rules setting standards for wetlands use and development and for enhancing wetland inventories. However, we discern nothing in chapter 90.48 RCW conferring authority on the Department to require local governments to adopt local programs for water pollution protection which incorporate the Department's standards.
Although we conclude that chapter 90.48 RCW gives the Department authority to control water pollution in wetlands, chapter 90.48 RCW does not confer sufficiently comprehensive authority on the Department of Ecology to promulgate rules establishing the comprehensive wetlands protection programs envisioned by part W-4 of the 1989 Plan. The thrust of the wetlands portion of the 1989 Plan seems to go beyond what is [[Orig. Op. Page 5]] necessary to control pollution, but rather seeks in part to preserve wetlands for other reasons. In order for chapter 90.48 RCW to provide the Department with the authority to adopt the rules called for in part W-4, the Department must determine the rules necessary for pollution control and the preservation of water quality. We do not believe the Department could make this determination for every element of part W-4.
Chapter 90.54 RCW
The primary focus of chapter 90.54 RCW the Water Resources Act of 1971, is the allocation of water among existing and potential users. See RCW 90.54.010, [90.54].020(1), (2), [90.54].050. However, the Act also contemplates a program for prior treatment of substances that enter waters of the state. RCW 90.54.020(3)(b). The Department of Ecology is authorized in RCW 90.54.040 to adopt rules to implement the comprehensive state water resources program called for in chapter 90.54 RCW.
Pursuant to its authority to implement chapter 90.54 RCW, the Department of Ecology could determine that it should adopt rules concerning water resources which are designed to preserve or enhance wetlands as envisioned in the 1989 Plan. This authority might incidentally include, with respect to at least some wetlands, rules of the type called for in part W-4 of the Plan. Again, however, this chapter relates to regulation of the water resources themselves, and confers no direct authority on the Department to regulate aspects of the wetland other than the water itself. Without detailed factual information, we cannot guess how far this chapter might take the Department in regulating wetland use, but we can say that chapter 90.54 RCW, like chapter 90.48 RCW, stops short of giving the Department of Ecology comprehensive wetlands regulatory authority such as the Plan call for.
Chapter 90.58 RCW
The final statute specifically mentioned in your opinion request is chapter 90.58 RCW, the Shoreline Management Act of 1971 (the "SMA"). The SMA sets forth the basic structure of a plan to protect the shorelines of Washington state. The statute covers "shorelines of the state". RCW 90.58.040. This term is defined to include "the total of all 'shorelines' and 'shorelines of state‑wide significance' within the state." RCW 90.58.030(2)(c). The definitions of "shorelines" and "shorelines of state‑wide significance", in turn, are sufficiently broad to include all the "water areas" of the state, except certain small lakes and the extreme upstream portions of certain streams. See RCW 90.58.030(2)(d), (e). The term "shorelines" also includes associated wetlands, defined in the SMA as follows:
[[Orig. Op. Page 6]]
"Wetlands" or "wetland areas" means those lands extending landward for two hundred feet in all directions as measured on a horizontal plane from the ordinary high water mark; floodways and contiguous floodplain areas landward two hundred feet from such floodways; and all marshes, bogs, swamps, and river deltas associated with the streams, lakes, and tidal waters which are subject to the provisions of this chapter; the same to be designated as to location by the department of ecology: Provided, That any county or city may determine that portion of a one‑hundred-year-flood plain to be included in its master program as long as such portion includes, as a minimum, the floodway and the adjacent land extending landward two hundred feet therefrom[.]
As you note in your opinion request, some of the wetlands within the scope of the 1989 Plan are within the scope of the SMA, but others are not. The Department of Ecology does not have authority under the SMA to adopt the rules called for in part W-4 with respect to wetlands that are not within the scope of the SMA.
With respect to wetlands that are within the scope of the SMA, we must further discuss the SMA in order to answer your question. The program for the protection of shorelines set forth in the SMA commences with the Department of Ecology's adoption of guidelines for the development of master programs for the regulation of uses of state shorelines. RCW 90.58.060. "Guidelines" are defined as
those standards adopted to implement the policy of this chapter for regulation of use of the shorelines of the state prior to adoption of master programs. Such standards shall also provide criteria to local governments and the department in developing master programs.
RCW 90.58.030(3)(a). In 1972, the Department of Ecology adopted chapter 173-16 WAC. Chapter 173-16 WAC does not set minimum standards for the master programs but, consistent with this definition, states criteria to be used in the development of master programs for shoreline uses.
The second stage of the program set forth in the SMA is the development by local governments of master programs for the regulation of uses of the shorelines of the state. RCW 90.58.080. "Master program" is defined as [[Orig. Op. Page 7]]
the comprehensive use plan for a described area, and the use regulations together with maps, diagrams, charts, or other descriptive material and text, a statement of desired goals, and standards developed in accordance with the policies enunciated in RCW 90.58.020.
Master programs developed by local governments are subject to review and approval by the Department of Ecology. RCW 90.58.090. If the Department determines that master programs are not consistent with the policy of RCW 90.58.020 and the criteria set forth in chapter 173-16 WAC, the local government must eliminate inconsistencies. RCW 90.58.090(1). With respect to shorelines of statewide significance, however, the Department has authority to develop and adopt its own master programs if the local government in question has submitted two master programs to the Department which the Department has rejected. RCW 90.58.090(2).
Pursuant to RCW 90.58.190, the Department of Ecology and each local government are required to periodically review the master programs under their jurisdictions and make any necessary adjustments. Adjustments by local governments to their programs are subject to review by the Department. If the Department rejects the adjustments, the adjustments are reviewed by the Shorelines Hearings Board and, ultimately, the courts. Id.
Finally, RCW 90.58.340 addresses the regulation of land adjacent to shorelines of the state. The Department is authorized to develop recommendations for land use control on such lands. Local governments must take into consideration the Department's recommendations in developing use regulations for lands adjacent to shorelines.5/
With this background information regarding chapter 90.58 RCW in mind, we now address whether the Department has authority by virtue of chapter 90.58 RCW to adopt the rules specified in part W-4 of the 1989 Plan. Our answer is in the qualified negative.
[[Orig. Op. Page 8]]
Part W-4 states that the Department "shall adopt minimum standards for local wetlands programs" and that "[t]hese rules shall prescribe the minimum features that must be contained in local programs." Further, part W-4 states that the rules "may contain standards for wetland use and development". The SMA, on the other hand, gives the Department only the authority to set guidelines for use by local governments in the development of master programs. RCW 90.58.030(3)(a), [90.58].060. Only prior to the adoption of a master program by the local government in question do the Department's guidelines serve as the actual standards. See RCW 90.58.030(3)(a). Thereafter, the local governments' master programs contain the actual standards for wetland use. RCW 90.58.030(3)(b). Chapter 173-16 WAC, the guidelines adopted by the Department under the SMA, contain criteria to be taken into account by local governments in adopting master programs, but do not set standards. This indicates the Department's understanding that the SMA requires it to provide criteria, but not to prescribe minimum standards, for local shoreline programs, and the Department's understanding that the actual standards were to be adopted in the local governments' master programs. Only with respect to shorelines of state‑wide significance does chapter 90.58 RCW grant the Department ultimate authority to develop and adopt the actual standards for wetland use. Therefore, insofar as part W-4 directs that the Department establish the standards for wetlands protection for local governments, part W-4 is beyond the authority granted to the Department by the SMA.
The second directive to the Department of Ecology contained in part W-4 states that the Department's rules "shall set forth a schedule and process for local legislative bodies and [the Department] to approve the local programs". With respect to wetlands within the shorelines of the state, however, the SMA states that the Department and local governments shall, as appropriate, make adjustments to master programs under their jurisdiction. RCW 90.58.190. Local governments that adjust their master programs are required to submit the adjusted programs to the Department or, if the Department rejects the adjustments, to the Shorelines Hearings Board for review. Id. The Department does not have authority by virtue of the SMA to fully implement the second directive contained in part W-4. The Department has authority to review plan adjustments, but does not have authority to impose time schedules to which local governments must adhere in reviewing the wetlands portions of their master programs, or to exercise sole authority to approve amendments to the master programs.
The third and final area addressed in part W-4 is the directive to the Department of Ecology to establish minimum requirements for wetland inventories if the Department determines that existing inventories are not adequate to meet the needs of [[Orig. Op. Page 9]] an enhanced regulatory program involving a net gain of wetlands. Pursuant to RCW 90.58.080, local governments were required to complete inventories of the shorelines of the state by 1972. These inventories were to show current and projected future uses. The Department has adopted rules which state that the Department will review inventories of wetlands within the shorelines of the state and prepare any revisions necessary to conform to the SMA. WAC 173-22-050. However, we find no indication in the SMA of a goal to achieve a net gain of wetlands. Rather, the policy of the SMA is to manage the shorelines of the state in such a way that multiple uses are accommodated, while protecting against adverse effects on the land and water and preserving the natural shoreline to the greatest extent possible. See RCW 90.58.020. Therefore, because the SMA does not state that there should be a net gain of wetlands but states that multiple uses of the shorelines are to be accommodated, an enhanced wetlands program is not entirely consistent with the authority conferred on the Department by the SMA.
In summary, chapter 90.48 RCW confers authority on the Department of Ecology to adopt wetland protection rules insofar as the Department deems such rules necessary for water pollution control and the protection of water quality. This conceivably could include use and development standards, and enhanced wetland inventories. Chapter 90.54 RCW confers on the Department authority to promulgate substance treatment rules which may incidentally protect wetlands. Finally, with respect to wetlands within the shorelines of the state, the Department has authority under chapter 90.58 RCW, the Shoreline Management Act, to adopt guidelines for wetlands regulation and use, to participate in the review of any adjustments to the wetlands portion of shoreline master programs, and to revise existing wetland inventories to bring them into compliance with the goals of the SMA.
Does chapter 90.70 RCW authorize the Department of Ecology to promulgate the wetlands protection rules referred to in question 1, even if the Department of Ecology had no pre‑existing authority to do so?
As discussed above, chapter 90.70 RCW created the Puget Sound Water Quality Authority and gave the Authority the mandate of preparing the Puget Sound water quality management plan. RCW 90.70.060 states that the plan "shall be a positive document prescribing the needed actions for the maintenance and enhancement of Puget Sound water quality." Among the elements the plan is required to include are "[r]ecommendations on protecting, preserving, and, where possible, restoring wetlands. . . throughout Puget Sound." RCW 90.70.060(11) (emphasis added). RCW 90.70.070(1) states:
[[Orig. Op. Page 10]]
In conducting planning, regulatory, and appeals actions, the state agencies and local governments identified in the plan must evaluate, and incorporate as applicable, the provisions of the plan, including any guidelines, standards, and timetables contained in the plan.
Finally, RCW 90.70.080(1) provides:
To implement this chapter, state agencies are authorized to adopt rules that are applicable to actions and activities on a less than state‑wide geographic basis. State agencies are encouraged to adopt rules that protect Puget Sound water quality before the adoption of the plan by the authority.
Your second question is whether these provisions of chapter 90.70 RCW, together with the Authority's adoption of the 1989 Plan, are a sufficient grant of independent authority to the Department of Ecology to implement any portions of part W-4 of the 1989 Plan for which the Department had no pre‑existing authority. Our answer is in the negative.
The powers of the Puget Sound Water Quality Authority in writing the Plan are limited to those powers either expressly granted or necessarily implied in chapter 90.70 RCW. See Human Rights Comm'n v. Cheney Sch. Dist. 30, 97 Wn.2d 118, 125, 641 P.2d 163 (1982). If a statute is unambiguous, its meaning must be derived solely from the language of the statute. In re Eaton, 110 Wn.2d 892, 898, 757 P.2d 961 (1988). RCW 90.70.060(11) unambiguously states that the Authority is to make recommendations concerning wetlands. RCW 90.70.060(11) therefore does not purport to expand the Department of Ecology's pre‑existing authority.6/ Part W-4 should be construed consistently with [[Orig. Op. Page 11]] RCW 90.70.060(11). In light of RCW 90.70.060(11), we do not construe part W-4 as conferring authority on the Department in addition to the Department's pre‑existing authority. Rather, consistent with RCW 90.70.060(11), part W-4 contains recommendations on the role the Department should play in wetlands preservation. Because the Legislature intended only that the Authority make recommendations concerning wetlands, to the extent that the Department lacked pre‑existing authority to fully implement part W-4, neither chapter 90.70 RCW nor part W-4 confers such authority on the Department.7/ To the extent that the Department has authority by virtue of chapters 90.48, 90.54, or 90.58 RCW or other state laws to adopt the rules called for in part W-4, part W-4 should be construed as the Authority's recommendation that the Department adopt such rules. [[Orig. Op. Page 12]]
In summary, chapter 90.70 RCW does not authorize the Department of Ecology to adopt the wetlands protection rules referred to in question 1 if the Department had no pre‑existing authority to adopt such rules.
We trust the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
JEAN M. WILKINSON
Assistant Attorney General
*** FOOTNOTES ***
1/In 1983, the Legislature created the original Puget Sound Water Quality Authority, the authority of which was limited to conducting studies. Laws of 1983, chapter 243.
2/"Wetlands" are defined in the 1989 Plan as follows:
Wetlands are lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. Wetlands have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes; (2) the substrate is predominantly undrained hydric soil; and (3) the substrate is nonsoils and is saturated with water or covered by shallow water at some time during the growing seasons each year.
Puget Sound Water Quality Authority, 1989 Puget Sound Water Quality Management Plan 143 n.44 (1988).
3/We have examined all the statutes relating to the operations and authority of the Department of Ecology, but we do not pretend to have examined each of them exhaustively concerning their possible impact on wetlands regulation. None of these statutes authorizes a wetlands regulatory program per se, but almost any statutory authority granted to the Department may be implemented and administered in such a way as to promote wetlands preservation. See, for example, chapter 43.21A RCW (general powers of the Department), chapter 43.27A RCW (water resources), chapter 70.94 RCW (Washington Clean Air Act), chapter 70.95 RCW (solid waste management), chapter 70.105 RCW (Hazardous Waste Management Act), chapter 70.105D RCW (Hazardous Waste Cleanup‑-Initiative 97), and Title 90 RCW (Water Rights), in addition to the statutes considered in greater detail in the body of this opinion.
4/The 1989 Plan would support such a determination. See Puget Sound Water Quality Authority, 1989 Puget Sound Water Quality Management Plan 143 (1988).
5/Local governments also must take into consideration recommendations developed by any other state agencies, including (presumably) the Puget Sound Water Quality Authority. See RCW 90.58.340.
6/In reaching this conclusion, we have considered the legislative history relative to the passage of chapter 90.70 RCW. As originally proposed in Senate Bill 3828, what is now RCW 90.70.060 stated that the Puget Sound Water Quality Management Plan was to identify the needed actions for the maintenance and enhancement of Puget Sound water quality. The Senate Committee on Parks and the Environment substituted the word "prescribing" for "identifying". Compare Senate Bill 3828, § 8, 49th Legislature (1985)with Substitute Senate Bill 3828, § 8, 49th Legislature (1985).
Thereafter, in its consideration of Engrossed Second Substitute Senate Bill 3828, the House Ways and Means Committee entertained an amendment to what is now RCW 90.70.070. Representative Niemi proposed that the first subsection of RCW 90.70.070 be amended to read that state agencies and local governments identified in the plan "must evaluate, andshould incorporate as applicable, the provisions of the plan". Representative Niemi argued that requiring state agencies and local governments to incorporate applicable provisions of the plan delegated too much power to the Authority. Representative Niemi's proposed amendment was rejected. Transcript, House Ways and Means Committee meeting of April 4, 1985.
It is apparent that the Legislature intended to grant the Authority a great deal of power over planning for the protection of Puget Sound water quality. Nevertheless, the fact remains that with respect to wetlands, the Plan is to contain only recommendations, and chapter 90.70 RCW therefore does not purport to expand the authority of the Department of Ecology beyond the Department's pre‑existing authority.
7/Because we do not construe chapter 90.70 RCW as delegating authority to an administrative agency to modify or expand the substantive authority of other agencies, we do not reach any constitutional questions about the authority of the Legislature to make such a delegation. Article 2, section 1 of the state constitution has been interpreted to prohibit the delegation of purely legislative authority to administrative agencies, although administrative authority may be delegated if the Legislature provides appropriate standards. Diversified Investment v. Department of Soc. & Health Servs., 113 Wn.2d 19, 24, 775 P.2d 947 (1989); Hi-Starr, Inc. v. Liquor Control Bd., 106 Wn.2d 455, 458, 722 P.2d 808 (1986).