STATUTORY CONSTRUCTION

ROADS AND BRIDGES, STATE ‑- TRANSPORTATION, DEPARTMENT OF ‑- STATUTORY CONSTRUCTION 

1.           When categorizing proposed construction projects for purposes of funding pursuant to RCW 47.05.030 and 47.05.051, the Transportation Commission does not exceed its authority when it lists a project that includes both rehabilitation of an existing bridge and construction of a new bridge and new approaches in category C (major improvements) rather than in category A (repairs) or category H (bridge improvements).

2.           Where an administrative agency exercises delegated authority to assign proposed construction projects among several categories, and a particular project could logically fit into any of several categories, the agency may properly look to the primary thrust of the proposed project in assigning it to a category, and a reviewing body will generally defer to the agency's judgment in such a matter.

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                                                                  March 24, 1988

Honorable Phil Talmadge
State Senator
34th District
Legislative Building, AS-32
Olympia, WA 98504

Honorable Mike Heavey
State Representative
34th District
Legislative Building, AS-33
Olympia, WA 98504 

Cite as:  AGO 1988 No. 8                                                                                                                  

 Dear Senator Talmadge and Representative Heavey:

             By two letters previously acknowledged, you asked us to address the decision by the Transportation Commission to designate the First Avenue South Bridge Project a category C project for purposes of funding under RCW 47.05.051.  You disagreed with the Commission's decision and asked us to review whether it complied with the law.  Stating that the Commission had incorrectly analyzed the nature of the project, you asked us  [[Orig. Op. Page 2] ] to address the extent of the Commission's authority to place transportation projects in statutory categories for purposes of funding.  Although we cannot resolve questions of fact involving the nature of the bridge project, we are able to address your legal question about the authority of the Commission.

             Accordingly, we have paraphrased your question as follows:

             When categorizing proposed construction projects for purposes of funding pursuant to RCW 47.05.030 and 47.05.051, does the Transportation commission exceed its authority when it lists a project that includes both rehabilitation of an existing bridge and construction of a new bridge and new approaches in category C (major improvements) rather than category A (repairs) or category H (bridge improvements)?

            We answer this question in the negative.  Our conclusion, explained below, is that the Commission is obligated to find a way to fit the complex bridge project into one of the statutory categories.  Given a variety of possible ways to do this, the Commission has chosen one, and we find it has not exceeded its statutory authority in doing so.

                                                                      ANALYSIS

             You and the Department of Transportation both have provided us with certain factual representations.  These representations are summarized briefly below.  Our analysis is based upon the assumption that this summary of the facts is substantially accurate.

             The First Avenue South Bridge is part of a major thoroughfare, State Route 99, connecting the City of Seattle with South King County.  It is heavily traveled.  The bridge generally is regarded as needing improvement.  One of the perceived deficiencies cited by critics of the bridge is its lack of sufficient capacity, with is regarded as the cause of substantial traffic congestion.  While commuter traffic has increased over past decades, the capacity of the bridge has not.  Some argue that the resulting traffic congestion causes safety problems on and about the bridge.  Thus, solving the problems caused by the bridge is regarded by some as a task of increasing urgency.

             The proposed bridge project, as currently defined by the Department of Transportation, would consist of (1) constructing a new bridge alongside the existing bridge, (2) repairing and rehabilitating the existing bridge, and (3) constructing new approaches to both bridges.  Over the past several years, the Commission consistently has designated the bridge project a  [[Orig. Op. Page 3]] "major improvement" and accordingly has placed it in category C pursuant to the statutes discussed below.

 I.  The Statutory Scheme

            The department cannot fund all the many transportation construction projects proposed each biennium.  To guide the Department and the Commission in choosing which projects will be funded, the Legislature has acted to impose some order on a process that might otherwise be chaotic.

             Chapter 47.05 RCW is entitled "Priority Programming for Highway Development."  It outlines a program for "rational selection of projects" according to criteria set forth in the statute.  RCW 47.05.010.1/

              In theory, the process is simple.  First, the Commission examines proposed projects and assigns each to a funding category.  RCW 47.05.051(1).  In doing so, the Commission is required to use "the criteria set forth in RCW 47.05.030."  RCW 47.05.051(1).  Second, once the projects have been placed in categories, the Commission is directed to select some of the projects from each category for funding.  RCW 47.05.051(2)-(7).  The result is a "comprehensive six-year program and financial plan for highway improvements."  RCW 47.05.040(1).  Every two years, the six-year plan is revised according to this statutory procedure.  RCW 47.05.040(1).  The plan is then presented to the Governor and the Legislature.  RCW 47.05.070.

             In each of the past several six-year plans, the Commission has placed the bridge project in category C (major improvements).  Each time, in the second step, the Commission has chosen not to select the bridge project for funding.  The Department's perception is that to fund the enormously expensive bridge project would eliminate funding for many other category C projects.

              [[Orig. Op. Page 4]]

 II.  Interpreting the Statute

             The question you asked involves the first step in the statutory procedure:  placing each proposed project in one of the four statutory categories.  RCW 47.05.030, which defines the categories, states:

                         The transportation commission shall adopt and periodically revise, after consultation with the legislative transportation committee, a comprehensive six-year program and financial plan for highway improvements specifying program objectives for each of the highway categories, "A", "B", "C", and "H", defined in this section, and within the framework of estimated funds for such period.  The program and plan shall be based upon the improvement needs for state highways as determined by the department from time to time.

                         With such reasonable deviations as may be required to effectively utilize the estimated funds and to adjust to unanticipated delays in programmed projects, the commission shall allocate the estimated funds among the following described categories of highway improvements, so as to carry out the commission's program objectives:

                         (1) Category A shall consist of those improvements necessary to sustain the structural, safety, and operational integrity of the existing state highway system (other than improvements to the interstate system to be funded with federal aid at the regular interstate rate under federal law and regulations, and improvements designated in subsections (2) through (4) of this section).

                         (2) Category B shall consist of improvements for the continued development of the interstate system to be funded with federal aid at the regular interstate rate under federal law and regulations.

                         (3) Category C shall consist of the development of major transportation improvements (other than improvements to the interstate system to be funded with federal aid at the regular interstate rate under federal law and regulations) including designated but unconstructed highways which are vital to the state‑wide transportation network.

                        (4) Category H shall consist of those improvements necessary to sustain the structural and operational  [[Orig. Op. Page 5] ] integrity of existing bridges on a highway system (other than bridges on the interstate system or bridge work included in another category because of its association with a highway project in such category).

                         Projects which are financed one hundred percent by federal funds or other agency funds shall, if the commission determines that such work will improve the state highway system, be managed separately from the above categories.

 RCW 47.05.030.  These statutory definitions are complex, cumbersome, and ambiguous; their interpretation merits some discussion.

             Statutes must be construed as a whole to give meaning to every part.  Addleman v. Board of Prison Terms & Paroles, 107 Wn.2d 503, 509, 730 P.2d 1327 (1986).  It is useful, therefore, to describe the general characteristics of this section.

             First, the statute creates four defined categories of projects‑-A, B, C, and H‑-and refers in the last paragraph to a fifth, unnamed category, which is not at issue here.

           Second, even though some of the same language is used in more than one category, the categories clearly are intended to be mutually exclusive.  This is shown by use of parenthetical phrases beginning with the words "other than."  Except for category B‑-which includes only federally funded interstate projects and is the only category everyone agrees cannot include the bridge project‑-each category is defined by stating what it includes, then parenthetically excluding projects that belong in other categories.

             Third, the statute can be given more than one reasonable interpretation and therefore is ambiguous.  This is in part the result of numerous piecemeal amendments to the statute.  The statute's ambiguity also results from the effort to express construction and engineering concepts in legal terms.  To decipher such expressions often requires expertise in the subject matter.

 III. Authority of the Commission

             The Transportation Commission is a creature of the Legislature and "may exercise only those powers conferred either expressly or by necessary implication."  State v. Pierce, 11 Wn. App. 577, 581, 523 P.2d 1201 (1974).  "A delegation of power to a state highway commission permits the exercise of authority only within the express grant."  Id.  Here, the Commission clearly is  [[Orig. Op. Page 6]] granted authority to categorize proposed construction projects.  RCW 47.05.030, 47.05.051.  However, the same statutes that grant the Commission authority to categorize projects also limit that authority.  They do so in part by defining categories.  RCW 47.05.030, 47.05.051.  The question addressed here is whether the Commission's authority is limited to such an extent that it may not place the bridge project in category C.

             Although other means of statutory interpretation are available, we find it most appropriate here to defer to the expertise of the Commission.  "Substantial weight is to be given to an agency's interpretation of a statute when that agency is charged with administering it."  Cosro, Inc. v. Liquor Control Bd., 107 Wn.2d 754, 757, 733 P.2d 539 (1987).  "Although the reviewing court applies the 'error of law' standard to agency conclusions of law, a heightened degree of deference is appropriate where the agency's construction of a statute is within the agency's field of expertise  . . . ."  Green River Comm'ty College Dist. 10 v. Higher Educ. Personnel Bd., 107 Wn.2d 427, 438, 730 P.2d 653 (1986).2/

              Such deference seems particularly appropriate when interpreting a statute that operates as a set of instructions to a group of experts‑-in this case, experts in transportation-related construction.

             Therefore, the Commission's interpretation of the statute is entitled to "substantial weight" and "a heightened degree of deference."  Chapter 47.05 RCW encompasses an area within the Commission's field of expertise.  Furthermore, the Commission's interpretation of the statute has been consistent, at least insofar as the Commission has repeatedly chosen to place the bridge project in category C instead of category A.  Category H is new, having been created by the Legislature in 1987.  Laws of 1987, ch. 179, § 2, p. 597.  In 1987, with category H as an option, the Commission again designated the bridge project a category C improvement.  Thus, the 1987 choice of category C over category H is also entitled to some deference.

            Although agency interpretations are entitled to deference, they are not controlling.  Walthew, Warner, Keefe, Arron, Costello & Thompson v. Department of Rev., 103 Wn.2d 183, 186, 691 P.2d 559 (1984).  Thus, it is still necessary to examine the Commission's decision to see whether that body exceeded its statutory authority.

              [[Orig. Op. Page 7] ]

             The Commission's analysis, which concluded that the bridge project should be placed in category C, may be broken down into three separate decisions.  Each decision warrants review to see if it exceeded the Commission's statutory authority. First, the Commission categorized each construction project according to that project's dominant purpose.  Second, the Commission included within category C both new construction and those projects whose dominant purpose was to expand the capacity of the relevant transportation corridor. Third, the Commission determined that the dominant purpose of the bridge project is to expand the capacity of First Avenue South and that it therefore belongs in category C.  We will discuss these one at a time.

             1.         Categorization According to Purpose

             Categorization according to a project's main purpose appears entirely consistent with RCW 47.05.030 for two reasons.  First, that statute instructs the Commission to allocate funds among the categories "so as to carry out the commission's program objectives."  Id.  The reference to "objectives" suggests it may be appropriate to view proposed projects, like the categories themselves, in terms of their objectives.  Second, nowhere is the Commission told what to do with a project that includes elements of more than one defined category.  When a project includes both repairs (category A) and an expansion of capacity (category C), the Commission has to do something.  Splitting a project and placing different elements of it in different categories would pose problems.  The evident statutory assumption is that for every project, there is a category.  In addition, the purpose of the statute is to guide the Commission toward deciding which projects are funded, and viewed that way, to place parts of a single project in different categories would make no sense.  The more reasonable alternative is for the Commission to choose which category best fits a given project.  To do so by examining the primary purpose of the project seems the best way to resolve conflicts between the various functions of a project.  Therefore, we find that categorizing a project according to its main purpose is within the Commission's authority.

             2.         Definition of Category C

             In category C, the commission chooses to include projects for new construction and projects whose primary purpose is to expand the traffic-bearing capacity of a given highway or other facility.  To see if the Commission has authority to apply this interpretation of category C, we must examine the statute.

             Category C is broadly defined.  It includes "the development of major transportation improvements  . . . including designated but unconstructed highways which are vital to the statewide  [[Orig. Op. Page 8] ] transportation network."  All we know from reading this definition is that category C includes (1) construction of new highways and (2) "major transportation improvements."  The phrase "major transportation improvements" is ambiguous and calls for Commission interpretation.

            Applying its expertise, the Commission has chosen to include within that term those projects designed primarily to expand capacity.  We find that this interpretation is supported by the statute and the Commission has not exceeded its authority by using it.

             The logic of including capacity-expanding projects in category C is best understood by examining the contrast between category C and categories A and H.  Category A, simplified, includes repairs to what already exists.  Thus, category A projects are "improvements necessary to sustain the structural, safety, and operational integrity of the existing state highway system  . . . ." RCW 47.05.030(1) (emphasis added).  Category H is similar but relates only to bridges.  Category H improvements are "those  . . . necessary tosustain the structural and operational integrity of existing bridges on the highway system (other than bridges on the interstate system or bridge work included in another category because of its association with a highway project in such category)."  RCW 47.05.030(4) (emphasis added).  What categories A and H have in common is the idea of repairing or rehabilitating or even replacing something that already exists‑-but they stop short of going beyond what already exists.  In contrast, whether by design or default, category C takes in practically any project whose dominant purpose is to expand the capacity of existing highways and bridges.  The distinction between merely sustaining and affirmatively bettering highway facilities runs throughout chapter 47.05 RCW and supports the notion of one category devoted to projects that expand capacity.  The Commission's interpretation of category C as including capacity-expanding projects, therefore, seems not only a permissible exercise of its statutory authority, but a clever and practical solution to a complex statutory puzzle.

             3.         Classification of the Bridge Project

             We now examine whether the Commission was acting within its authority in determining the bridge project is primarily intended to expand capacity and therefore belongs in category C.  The bridge project includes elements that might justify placing it in any of three categories: A, C, or H.  The bridge project involves some rehabilitation work and is apparently designed at least in part to make the bridge safer‑-albeit by expanding its capacity.  Rehabilitation and safety are category A purposes.  At the same time, the bridge project should also have the effect of  [[Orig. Op. Page 9] ] "sustain[ing] the structural and operational integrity of [an] existing [bridge] on the highway system  . . .," which implicates category H.  RCW 47.05.030(4).  Category C, in turn, is an option because the bridge project includes both construction of a new bridge where none exists now and expansion of the capacity of First Avenue South.

             At this point we defer to the Commission's judgment.  See supra at 6.  Analysis of the primary purpose is best left to the Commission in consultation with its expert engineers.  We would find the Commission's exercise of judgment unlawful if the statute gave that body no authority to place the bridge project in category C.  The Commission would lack such authority only if the bridge project had no substantial elements justifying its inclusion in category C.  Here, as we have discussed, the characteristics of the bridge project do justify inclusion of the project within category C.  Therefore, we find that inclusion of the bridge project in category C is within the statutory authority granted to the Commission.

            Placing the bridge project in category C is justified, in addition, by a prior opinion.  In response to a 1984 inquiry from Senator Talmadge regarding mechanisms for funding improvements to the First Avenue South Bridge, we stated:

                         In addition, anticipating the possibility of that answer to your primary question, you also asked us to identify other possible financing tools for this bridge project.  On that count we advise you as follows:

                         Funding of major highway improvements such as the First Avenue South Bridge by the Department of Transportation is governed by a priority selection process set forth in chapter 47.05 RCW.  The First Avenue South Bridge is a part of State Route 99 in Seattle.  Construction of a new parallel bridge to provide greater traffic capacity would be classified as a Category "C" project under RCW 47.05.030.  Such projects are defined as "the development of major transportation improvements) other than improvements to the interstate system to be funded with federal aid at the regular interstate rate under federal law and regulations) including designated but unconstructed highways which are vital to the state‑wide transportation network."  RCW 47.05.051(6) sets forth the criteria for the selection of specific Category "C" projects.  One of those criteria, subsection (g), is the "feasibility of financing the full proposed improvement."  The great cost of an additional First Avenue South Bridge estimated between $80 and $90  [[Orig. Op. Page 10] ] million has, according to the Department of Transportation, constituted the major factor precluding the selection of this project for funding.

 AGO 1984 No. 7 at 3 n.l (emphasis supplied).

             Although we have, as you see, previously mentioned the bridge project as belonging in category C, that statement was essentially descriptive of the Commission's practice, and in any case was made before the 1987 amendment that created category H.  Thus we have not treated our 1984 opinion as controlling on the issue addressed here.

             More compelling is the Legislature's 1987 enactment of a bill which appeared to ratify expressly the understanding that the bridge project is properly funded from category C funds.  In directing the Department to study the feasibility, legal and otherwise, of converting the First Avenue South Bridge to a toll bridge, the Legislature indicated that funding for this study should come from category C funds.  Laws of 1987, ch. 510, § 1, p. 2361 (codified as RCW 47.56.760(1)).3/

              Although the statute directs funding of a study, not actual construction, it does tend to confirm the Commission's consistent practice of designating the First Avenue South Bridge Project as a category C project.

 IV.  Conclusion

             In conclusion, we find the Transportation Commission has not exceeded its authority by designating the First Avenue South Bridge Project, as defined above, as a category C project within the meaning of RCW 47.05.030 and 47.05.051.

            [[Orig. Op. Page 11] ]

             We trust the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

DAVID M. HORN
Assistant Attorney General