Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

CRITERIA FOR DENIAL OF HYDRAULIC PERMITS

AGO 1984 No. 4 -
Attorney General Ken Eikenberry

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF GAME ‑- DEPARTMENT OF FISHERIES ‑- CRITERIA FOR DENIAL OF HYDRAULIC PERMITS 

In view of specific language in § 75, chapter 46, Laws of 1983, 1st ex.  Sess., neither the Department of Fisheries nor the Department of Game may now deny, or condition, a hydraulic permit applied for under RCW 75.20.100 on the nonstatutory ground that the project, or other work involved‑-for which the permit is sought‑-would physically conflict with the taking of fish or shellfish.

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                                                                 February 9, 1984 

Honorable Brad Owen
St. Sen., 35th District
402-B Legislative Building
Olympia, Washington 98504

Cite as:  AGO 1984 No. 4                                                                                                                  

  Dear Sir:

             By letter previously acknowledged you requested the opinion of this office on the following question:

             May the Department of Fisheries or the Department of Game, as the case may be, deny or condition a hydraulic permit under RCW 75.20.100, on the ground that the hydraulic project or other work involved, for which the permit is sought, would physically conflict with the taking of fish or shellfish.

             We answer your question in the negative for the reasons stated below.

                                                                      ANALYSIS

             RCW 75.20.100, to which your inquiry refers, relates to the issuance, by the state Departments of Fisheries and Game,1/ of  [[Orig. Op. Page 2]] "hydraulic permits" covering certain types of construction activities on, or affecting, state waters.  As recently amended by § 75, chapter 46, Laws of 1983, 1st Ex. Sess., that statute now reads, in pertinent part, as follows:

             "In the event that any person or government agency desires to construct any form of hydraulic project or other work that will use, divert, obstruct, or change the natural flow or bed of any river or stream or that will utilize any of the salt or fresh waters of the state or materials from the stream beds, such person or government agency shall, before commencing construction or work thereon and to ensure the proper protection of fish life, secure the written approval of the department having jurisdiction of the site as to the adequacy of the means proposed for the protection of fish life.  This approval shall not be unreasonably withheld. . . . If approval is denied, the appropriate department shall provide the applicant, in writing, a statement of the specific reasons why and how the proposed project would adversely affect fish life.  Protection of fish life shall be the only ground upon which approval may be denied or conditioned. . . ."  (Emphasis supplied)

             That amended version of the statute, including the above‑ underscored last sentence, took effect on January 1, 1984 in accordance with § 191 of the act.  Therefore, under the law as it now exists, the protection of fish life has been declared by the legislature to be the ". . . only ground upon which approval may be denied or conditioned."  Indeed, on that count, the statute appears to us to be plain, clear and unambiguous.

             What this means (in our opinion) is that the issuance of a hydraulic permit may now be denied, or conditioned, by either of the two departments solely on the ground that the project for which the permit is sought would detrimentally affect fish life.  For the protection of such fish life the permit may be denied or conditioned‑-but only for that purpose.  Conversely, a denial (or conditional grant) of such a permit based upon a finding that the proposed project would (in words of your question) ". . . interfere with the physical activity of taking fish or shellfish . . ." would now seem to be in direct conflict with the pertinent language of the statute, as amended.  In short, the law's apparent concern, at the present time, is with the fish and not the fisherman.

              [[Orig. Op. Page 3]]

            In so concluding we have considered a possible contrary argument to the effect that, under certain factual circumstances, a hydraulic permit could also be denied (or conditioned) on some other, environmentally-related, ground under the State Environmental Policy Act (SEPA).  Accord,Polygon Corporation v. City of Seattle, 90 Wn.2d 59, 578 P.2d 1309 (1978).  In thePolygon case, however, the "other" law involved (namely, the state building code, chapter 19.27 RCW) did not say‑-as does RCW 75.20.100,supra‑-that a permit was to be denied or conditionedonly on ground or grounds specified therein.  Accordingly, there was no irreconcilable conflict between that law and that which the Court inPolygon held to be the substantive provisions of SEPA; and the two laws thus could be read in concert as complimentary to each other.  Here, on the other hand, because the hydraulic permit statute (RCW 75.20.100) now says that protection of fish life ". . . shall be the only ground upon which [such] approval may be denied or conditioned," there is a clear conflict between that statute and SEPA as construed inPolygon.

             In turn, to the extent of any such conflict between SEPA and thepresent language of RCW 75.20.100 it is the latter, as a "special" statute (one dealing with the specific issue involved) which must be deemed to control‑-over the conflicting "general" law‑-under well-established principles of statutory construction. See, City of Airway Heights v. Schroeder, 53 Wn.2d 625, 335 P.2d 578 (1959) and authorities cited therein at page 629.2/ And because that "special" law is, as here, part of a comprehensive legislative enactment complete unto itself, its enactment was not in violation  [[Orig. Op. Page 4]] of Wash. Const., Art. II, § 37.  Accord,Yelle v. Bishop, 55 Wn.2d 286, 347 P.2d 1081 (1959) and cases cited therein.  Cf.,Weyerhaeuser v. King County, 91 Wn.2d 721, 592 P.2d 1108 (1979).3/

              Finally, let us briefly note and dispose of the legislative statement which appears in § 1 of chapter 46, Laws of 1983, 1st Ex. Sess.  Notwithstanding the fact that almost all of the 180 ensuing sections of that act (including § 75,supra) are clearly amendatory in form, that opening section of the law reads as follows:

             "In enacting this 1983 act, it is the intent of the legislature to revise and reorganize the fisheries code of this state to clarify and improve the administration of the state's fisheries laws.  Unless the context clearly requires otherwise, the revisions made to the fisheries code by this act are not be construed as substantive."  (Emphasis supplied)

             Our short and simple answer to any argument based on that provision is that in this instance the context clearly requires otherwise.  Before the enactment of § 75, chapter 46,supra, a Polygon type of analysis of the applicability of SEPA would have been in order‑-and, indeed, this office so advised the Departments of Game and Fisheries, informally, at that time.  Now, however, the legislature has provided otherwise (under established principles of statutory construction as above explained) by its express amendment  [[Orig. Op. Page 5]] of RCW 75.20.100 relating to the issuance of hydraulic permits.

             Conclusion:

             Our answer to your question, therefore, must be in the negative.  In view of the specific language in § 75, chapter 46, supra, neither the Department of Fisheries nor the Department of Game may now deny, or condition, a hydraulic permit applied for under RCW 75.20.100 on the nonstatutory ground that the project, or other work involved‑-for which the permit is sought‑-would physically conflict with the taking of fish or shellfish.

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

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Senior Deputy Attorney General

                                                         ***   FOOTNOTES   ***

 1/Depending upon which department has jurisdiction over the particular waters.

 2/We are aware, on that count, that SEPA was also amended by the 1983 legislature (see, chapter 117, Laws of 1983), including RCW 43.21C.060 which (in line with Polygon,  supra) provides that:

 ". . . Any governmental action may be conditioned or denied pursuant to this chapter: . . ."

 That language of RCW 43.21C.060, however, was not itself amendatory language.  Rather, it was preexisting language simply carried over in the bill drafting process in compliance with Wash. Const., Art. II, § 37.  In addition, we note in any event that the SEPA amendments were enacted prior to the close of the 1983 regular session while § 75, chapter 46, supra, amending RCW 75.20.100 was subsequently enacted during the ensuing special session.

 3/Moreover, in any event, we would, as a matter of longstanding policy, have to presume the constitutionality of that 1983 legislative enactment in the absence of a court decision to the contrary.  The basic reasons for this consistent policy have been frequently set forth in our prior opinions.  Perhaps the most succinct explanation of the policy appears in AGO 1945-46, p. 269, as follows:

 ". . . The power to declare an act constitutional or unconstitutional is vested solely in the courts.  Consequently, nothing can be gained by this office expressing an opinion as to the constitutionality of a statute. A pronouncement of unconstitutionality would merely cause confusion and disorder among the administrative officers whose duty it is to give effect to the presumption of constitutionality which attaches to all laws until declared otherwise by a court of competent jurisdiction."