Navigation Top
AGO Logo Graphic
AGO Header Image
File a Complaint
Contact the AGO
AGO Opinions with Topic: DEPARTMENT OF ECOLOGY
AGO 2006 No. 17 >  September 25, 2006
WATER - WATER RIGHTS - DEPARTMENT OF ECOLOGY
Extent of Department of Ecology’s discretion in reviewing decisions of local water conservancy boards 1. In reviewing a water conservancy board record of decision concerning a water right transfer application, the Department of Ecology is not limited to reviewing the record established by the water conservancy board but may base its decision upon an independent factual investigation. 2. In reviewing a water conservancy board record of decision concerning a water right transfer application, the Department of Ecology is not required to: 1) defer to the water conservancy board’s findings of fact, or 2) defer to the board’s interpretation of the law. 3. A water conservancy board, in making a decision concerning a water right transfer application, is not legally required to follow policies or guidelines of the Department of Ecology which have not been adopted as statutes or administrative rules; however, the Department of Ecology may refer to and follow its own policies or guidelines in reviewing the local board’s decision.
AGO 2005 No. 17 >  November 18, 2005
WATER - WATER RIGHTS - DEPARTMENT OF ECOLOGY - RULES AND REGULATIONS
Interpretation of statutory language exempting withdrawals of groundwater for stock-watering from permitting requirements RCW 90.44.050 exempts withdrawals of groundwater for stock-watering purposes from the permitting requirement, without setting a numeric limit on the quantity of water withdrawn.  2. The Department of Ecology does not have authority to impose a categorical limit on the quantity of groundwater that may be withdrawn for stock-watering without a permit. In certain circumstances, the Department of Ecology’s statutory authority to regulate the use of water may affect or limit such withdrawals, just as it may affect or limit withdrawals for other purposes.3. An agency may not alter its interpretation of a statute in a manner that is inconsistent with statutory language and legislative intent to address changed societal conditions.
AGO 1991 No. 4 >  February 5, 1991
DEPARTMENT OF ECOLOGY - ECOLOGICAL COMMISSION - ADMINISTRATIVE LAW - RULES AND REGULATIONS - SHORELINE MANAGEMENT ACT
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.
AGO 1991 No. 9 >  March 12, 1991
WETLANDS - PUGET SOUND WATER QUALITY AUTHORITY - DEPARTMENT OF ECOLOGY - CITIES AND TOWNS - COUNTIES
WETLANDS ‑- PUGET SOUND WATER QUALITY AUTHORITY ‑- DEPARTMENT OF ECOLOGY ‑- CITIES AND TOWNS ‑- COUNTIES Chapter 90.70 RCW authorizes the Puget Sound Water Quality Authority to make recommendations regarding the protection of wetlands.  However, chapter 90.70 RCW does not empower the Authority to set minimum standards for wetlands protection or to require local governments to adopt the Authority's recommendations.
AGO 1983 No. 23 >  November 2, 1983
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - POLLUTION
RELATIONSHIP BETWEEN FEDERAL AND WASTE DISCHARGE PERMITS (1) The Department of Ecology may not concur in the proposed issuance of a wate discharge permit by the United States Environmental Protection Agency under § 301(h) of the Federal Clean Water Act if the proposed federal permit contains effluent quality limitations which require less waste treatment than is required under state law. (2) A municipality is required to obtain a waste discharge permit from the Department of Ecology under RCW 90.48.162 prior to discharge of its sewerage wastes into marine waters of the state even though the municipality already holds a waste discharge permit issued by the Environmental Protection Agency under § 301(h) of the Federal Clean Water Act which was concurred in by the Department of Ecology under that provision. (3) The Department of Ecology is not precluded by federal law from including in a state permit such waste treatment requirements, mandated by state law, as are more stringent than those contained in a permit which was issued by the Environmental Protection Agency without express state concurrence. (4) While state law does not expressly prohibit a municipality from discharging wastes from its sewerage system into Puget Sound, or other marine waters, without providing secondary treatment, all waste proposed for discharge into such waters must be provided with "all known, available, and reasonable methods of treatment" prior to being discharged into those waters‑-regardless of the quality of the water.
AGO 1976 No. 12 >  June 4, 1976
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - ISSUANCE OF LIMITED TERM WATER USE PERMITS
OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- ISSUANCE OF LIMITED TERM WATER USE PERMITS If, in order to attain "maximum net benefits" and protect the public welfare and interest against the long range detrimental effects of a perpetual water use not so restricted, the state department of ecology, in issuing a surface water right permit pursuant to RCW 90.03.290, determines to include a provision authorizing use of such waters unconditionally for specified initial period of time (e.g., fifty years), with any authorization to withdraw for further periods of time made dependent upon subsequent determinations by the department involving public needs for the waters involved, that action is likely to be upheld by the courts.
AGO 1985 No. 3 >  January 25, 1985
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - DEPARTMENT OF SOCIAL AND HEALTH SERVICES
STATE MONITORING AND REGULATION OF RADIOACTIVE EMISSIONS FROM FEDERAL NUCLEAR FACILITY The State of Washington does not have the requisite authority, under federal law, to regulate radioactive emissions from a federal nuclear facility‑-except for air emissions, which may be monitored by the State Department of Ecology under the federal Clean Air Act amendments of 1977.
AGO 1988 No. 25 >  October 31, 1988
INITIATIVE AND REFERENDUM - UNDERGROUND STORAGE TANKS - DEPARTMENT OF ECOLOGY - INITIATIVE 97 AND ALTERNATIVE MEASURE 97B
AUTHORITY OF LEGISLATURE TO AMEND INITIATIVES 1.If Initiative 97 (relating to cleanup of hazardous waste spills) is approved by the voters in the November 1988 election, the Legislature would still be free to enact certain portions of House Bill 1967 (a 1988 bill dealing with regulation of underground storage tanks and cleanup of petroleum spills) without requiring approval of at least two-thirds of the members of both houses of the Legislature, but certain other provisions of House Bill 1967 would constitute "amendments" to the initiative measure and could not properly be enacted by the 1989 Legislature without the extraordinary majority required by the state constitution for amendments to initiative measures.2.If Alternative Measure 97B (also relating to cleanup of hazardous waste spills) is approved by the voters in the November 1988 election, the Legislature would be free to enact House Bill 1967 without requiring approval of at least two-thirds of the members of both houses of the Legislature.3.If either Initiative 97 or Alternative Measure 97B is approved by the voters in the November 1988 election, the Legislature's enactment within two years of some or all of the provisions of House Bill 1967 would not constitute an unconstitutional repeal of either initiative measure.
AGO 1992 No. 20 >  September 8, 1992
DEPARTMENT OF NATURAL RESOURCES - FOREST PRACTICES BOARD - DEPARTMENT OF ECOLOGY - CITIES AND TOWNS - COUNTIES - FOREST LAND - ZONING
Conversion of Forest Land to a Use Other Than Commercial Timber Production 1.  RCW 76.09.060(3) provides that a forest practices application shall indicate whether any land covered by the application will be converted or is intended to be converted to a use other than commercial timber production within three years after completion of the forest practices described in it.  If the application does not state conversion is intended, for six years after the date of the application, a local government may deny all applications for permits or approvals relating to nonforestry uses of land subject to the application.  2.  If a prior landowner did not indicate an intention to convert land to a use other than commercial timber production, RCW 76.09.060 empowers a local government to deny application for permits or approvals relating to nonforestry uses of land subject to the application filed by a subsequent owner of the land for six years after the date of the application by the prior landowner. 3.  If a local government does not exercise its authority to deny applications for permits or approvals relating to nonforestry uses of land pursuant to RCW 76.09.060, a new landowner may convert the land to a use incompatible with timber growing, assuming such a change is lawful in other respects.  4.  If a local government does not exercise its authority to deny applications for permits or approvals relating to nonforestry uses of land pursuant to RCW 76.09.060, a new forest practices application is necessary if the activity is a forest practice for which a forest practices application is required.
AGO 1993 No. 6 >  April 15, 1993
DEPARTMENT OF ECOLOGY - HEALTH - SEWER - DISTRICTS - HAZARDOUS WASTE - FEES
Ability of Local Health Board to Charge Fees in Connection With Implementation of Local Hazardous Waste Plan 1.  Chapter 70.105 RCW requires local governments to adopt hazardous waste plans for the management of moderate-risk waste.  A local government can implement such plans through its board of health. 2.  A local health board can assess a fee against a sewer district for services the board performs in connection with the implementation of a local hazardous waste plan.  However, the fee must be no greater than the actual cost of providing the relevant services. 3.  The authority granted to the Department of Ecology to regulate hazardous waste does not preempt the authority of a local health board to adopt a local hazardous waste plan for the management of moderate-risk waste and to charge a fee in connection with the implementation of the plan.
AGO 1989 No. 21 >  December 19, 1989
WETLANDS - DEPARTMENT OF ECOLOGY - PUGET SOUND WATER QUALITY AUTHORITY
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.
AGO 1996 No. 19 >  December 11, 1996
WATER - DEPARTMENT OF ECOLOGY - DEPARTMENT OF HEALTH - CITIES - COUNTIES - DISTRICTS
Interpretation of legislation recognizing interties between public water supply systems 1.  The procedure established in RCW 90.03.383(3) for modifying a water right permit based on an intertie between public water supply systems applies only to interties existing and in use on January 1, 1991. 2.  Under RCW 90.03.383(3), when the Department of Ecology processes a change in place of use occasioned by an intertie between public water supply systems, the resulting permit(s) should show the quantity of water delivered through the intertie as well as the change in place of use. 3.  Under RCW 90.03.383(4), the Department of Ecology's scope of inquiry is whether each system's use is within the annual and instantaneous withdrawal rate specified in its water right authorization and whether the exchange or delivery through the intertie adversely affects existing water rights.  
AGO 1993 No. 17 >  November 17, 1993
DEPARTMENT OF ECOLOGY - FIRE - AIR - POLLUTION
Regulation of outdoor burning by the Department of Ecology RCW 70.94.775 prohibits outdoor burning of certain listed substances as well as any substance that normally emits dense smoke or obnoxious odors.  The Department of Ecology has authority under the Washington Clean Air Act, chapter 70.94 RCW, to adopt a regulation prohibiting the outdoor burning of substances not listed in RCW 70.94.775, if it concludes that the substances emit either dense smoke or obnoxious odors.
AGO 2007 No. 1 >  January 4, 2007
DEPARTMENT OF FISH AND WILDLIFE - SHORELINE MANAGEMENT ACT - DEPARTMENT OF ECOLOGY
Extent to which hydraulic project approval permits or shoreline substantial development permits are required for the planting, growing, and harvesting of farm-raised geoduck clams 1.  The Department of Fish and Wildlife may not require hydraulic project approval permits under RCW 77.55.021 to regulate planting, growing, or harvesting of farm-raised geoduck clams by private parties. 2.  The planting, growing, and harvesting of farm-raised geoduck clams would require a substantial development permit under the Shoreline Management Act if a specific project or practice causes substantial interference with normal public use of the surface waters, but not otherwise. 3.  Where a geoduck clam culture project would require a substantial development permit, the local government and the Department of Ecology would have a variety of enforcement options available; in some cases, conditional use permits might also be used to regulate this practice.
AGLO 1976 No. 22 >  March 23, 1976
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - CONDEMNATION - EMINENT DOMAIN
REACQUISITION OF WATER RIGHTS BY STATE AGENCIES The state department of ecology may not condition a water right permit issued under RCW 90.03.290 by providing, pursuant to an administrative regulation, that once such a permit has been in effect for at least twenty-five years the state, upon giving five years' notice, may utilize a certain prescribed formula for the measurement of damages if it exercises its power of eminent domain to condemn the water right embodied in the permit ‑ in lieu of paying full compensation as ascertained by the court or jury under Article I, § 16 (Amendment 9) of the state constitution.
AGLO 1979 No. 42 >  December 28, 1979
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - WATER - RIVERS - FLOOD CONTROL - AUTHORITY OF DEPARTMENT OF ECOLOGY TO REGULATE FLOOD CONTROL FACILITIES
OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- WATER ‑- RIVERS ‑- FLOOD CONTROL ‑- AUTHORITY OF DEPARTMENT OF ECOLOGY TO REGULATE FLOOD CONTROL FACILITIES

(1) Under RCW 86.16.035 the State Department of Ecology is authorized, in its discretion, to promulgate rules regulating the times when (a) the owner or operator of a "flood control facility" or (b) the owner or operator of any dam or other "water flow control facility" may release impounded water or otherwise alter the stream flow if the released water or altered stream flow might create a danger to life or property downstream.

(2) Under the same statute the Department of Ecology is also authorized to promulgate regulations requiring the notification of persons downstream or the posting of signs prior to the release of impounded water or other alteration in the stream flow by (a) a flood control dam or (b) any dam or water flow control facility when such release or alteration might create a danger to life or property below the dam.

AGLO 1978 No. 7 >  March 13, 1978
OFFICES AND OFFICERS - STATE - DEPARTMENT OF ECOLOGY - BONDS - GARBAGE - BONDS FOR ACQUISITION OF PUBLIC WASTE DISPOSAL FACILITIES - USE OF PROCEEDS FOR ACQUISITION OF GARBAGE TRUCKS
OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF ECOLOGY ‑- BONDS ‑- GARBAGE ‑- BONDS FOR ACQUISITION OF PUBLIC WASTE DISPOSAL FACILITIES ‑- USE OF PROCEEDS FOR ACQUISITION OF GARBAGE TRUCKS

(1) In view of the amendment to chapter 128, Laws of 1972, 1st Ex. Sess. (Referendum 26) which is contained in chapter 242, Laws of 1972, 1st Ex. Sess., the proceeds of bonds issued pursuant thereto may not be made available to counties or other public bodies for the acquisition of trucks or other vehicles to be used in the transporting of garbage from its source in residential, commercial and industrial areas either to drop-box or transfer stations or directly to landfills and recovery facilities.

(2) The foregoing bond proceeds may, however, continue to be used for the acquisition of land and equipment for use in relation to the operation of sanitary landfills, resource recovery facilities, drop-box and transfer stations, and equipment for the transfer of solid waste from such stations to landfills and recovery facilities.

AGO 2008 No. 1 >  January 3, 2008
GROWTH MANAGEMENT ACT - WETLANDS - DEPARTMENT OF ECOLOGY - AGRICULTURE
Application of Growth Management Act to siting a wetlands mitigation bank 1.  The Growth Management Act (GMA) does not apply directly to a site-specific decision such as siting a wetlands mitigation bank, although the GMA applies to the development regulations and comprehensive plans.  2.  Certification of a wetlands mitigation bank by the Department of Ecology does not legally obligate a county to issue required permits for the bank.  3.  The Department of Ecology’s certification of a wetlands mitigation bank does not make the Growth Management Act (GMA) or the State Environmental Policy Act (SEPA) inapplicable.  4.  The substantive provisions of the Growth Management Act (GMA) do not apply to the Department of Ecology’s certification of a wetlands mitigation bank.
Content Bottom Graphic
AGO Logo