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.

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                                                                  March 12, 1991

The Honorable Cliff Bailey
State Senator, District 39
204 Institutions Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1991 No. 9

Dear Senator Bailey:

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

            Can the Puget Sound Water Quality Authority require local governments in the Puget Sound area to adopt and enforce wetlands protection regulations that meet certain minimum standards established by the Authority?

The answer to your question is no.

                                                                BACKGROUND

            The Puget Sound Water Quality Authority (Authority) was originally created in 1983.  Laws of 1983, ch. 243.  The Authority, as it currently exists, was created by Laws of 1985, ch. 451.  The primary charge of the Authority is to create a comprehensive Puget Sound water quality management plan.  RCW 90.70.055, [90.70].060, [90.70].070.  The Authority initially presented the Plan to the Governor and the Legislature prior to January 1, 1987.  RCW 90.70.055(3).  The Authority must review the Plan every four years and revise it as appropriate.  Id.

             [[Orig. Op. Page 2]]

            In 1989, the Authority adopted the 1989 Puget Sound Water Quality Management Plan ("1989 Plan").  The 1989 Plan identified many areas needing action, such as wetlands protection, and set forth strategies to address the problem areas.  Part W-4 of the Plan stated that the Department of Ecology was to adopt rules regarding wetlands protection and management.  With respect to part W-4 of the 1989 Plan, we were asked whether the Department of Ecology had authority to promulgate such wetlands protection rules.  In AGO 1989 No. 21, we said that although chapters 90.48, 90.54 and 90.58 RCW provide limited authority to the Department to adopt the wetlands rules anticipated in the 1989 Plan, these chapters did not confer sufficiently comprehensive authority on the Department of Ecology to establish all the wetlands protection programs envisioned by part W-4 of the 1989 Plan.  In addition, we said that chapter 90.70 RCW did not grant sufficient 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.

            Subsequently, the Authority has proposed a 1991 Puget Sound Water Quality Management Plan ("1991 Plan").  Part W-4 of the 1991 Plan provides minimum wetlands protection standards, regarding topics such as wetland categories, buffer zones, and regulated activities, which local governments are required to adopt.  It is our understanding that Part W-4 of the proposed 1991 Plan provides that

            [a]ll local governments in the Puget Sound planning area shall develop, adopt, administer, and enforce a wetlands protection program which meets the minimum standards established in this element.  This requirement can be met through the local government's adoption of development regulations and designations of critical areas required by the Growth Management Act, Chapter 17, Laws of 1990, 1st Ex. Sess. (SHB 2929), provided that the program meets or exceeds these minimum standards.

Part W-4, para. 4.1.1.

                                                                     ANALYSIS

            Your question can be divided into two parts.  First, does the Authority have the power to establish in the Plan minimum standards for wetlands protection?  Second, if so, can the Authority require local governments in the Puget Sound area to adopt and enforce wetland protection regulations that meet the minimum standards established by the Authority?  In our view, the Authority is limited to making recommendations regarding protecting, preserving, and restoring wetlands.  We also do not  [[Orig. Op. Page 3]] believe that the Legislature intended to grant the Authority the power to require local governments to adopt provisions of the Plan.

            Turning to the first part of your question, RCW 90.70.001 provides in part that the policy of the state is to create a single entity to develop a comprehensive plan for Puget Sound water quality protection "to be implemented by existing state and local government agencies."  The Authority is required to prepare and adopt a Puget Sound water quality management plan as detailed in RCW 90.70.060.  RCW 90.70.055.  The Plan "shall be a positive document prescribing the needed actions for the maintenance and enhancement of Puget Sound water quality."  RCW 90.70.060.  Furthermore, "the Plan shall coordinate and incorporate existing planning and research efforts of state agencies and local government related to Puget Sound, and shall avoid duplication of existing efforts."  Id.

            The Plan is required to include among other things, "[a] resource assessment which identifies critically sensitive areas"; "[r]eview and assessment of existing criteria and guidelines for governmental activities affecting Puget Sound's resources"; "[a]procedure assuring local government initiated planning for Puget Sound water quality protection"; "[w]ays to better coordinate federal, state, and local planning and management activities affecting Puget Sound's water quality"; and "[r]ecommendations on protecting, preserving and, where possible, restoring wetlands . . . throughout Puget Sound".  RCW 90.70.060(2), (5), (8), (9), (11) (emphasis added).  In addition, the Plan must include "[r]ecommendations for implementation mechanisms to be used by state and local government agencies", and "[s]tandards and procedures for reporting progress by state and local governments" in implementing the Plan.  RCW 90.70.060(16), (17) (emphasis added).

            The first part of your question is whether the Authority is authorized to go beyond making recommendations on protecting, preserving and restoring wetlands and instead adopt and enforce minimum wetlands protection standards.  Our answer is no.

            RCW 90.70.060(11) unambiguously states that in the Plan the Authority is to make recommendations regarding wetlands protection, preservation, and restoration.  The term "recommendation" is defined in the Webster's Third New International Dictionary (1981) at p. 1897, as "the action of recommending."  The term "recommend" or "recommending" is defined as:

            Recommend:  (1): to mention or introduce as being worthy of acceptance, use, or trial.  (2): to make a  [[Orig. Op. Page 4]] commendatory statement about as being fit or worthy; (3): to bring forward as being fit or worthy; present with approval: indicate as being one's choice for something or as otherwise having one's approval or support: offer or suggest as favored by oneself.Id.

            Thus, regarding wetlands protection, preservation and restoration, the Authority must provide guidance or advice‑-a plan worthy of acceptance.  However, RCW 90.70.060 does not authorize the Authority to establish specific sets of mandatory criteria or minimum standards.  RCW 90.70.025 which describes the Authority's powers does not grant the Authority such power either.  Because the Legislature intended only that the Authority make recommendations regarding wetlands, part W-4 of the 1991 Plan should be construed as the Authority's recommendation that local governments adopt wetlands protection rules and regulations consistent with the recommendations in the Plan.  The Plan does not establish minimum standards.

            Our conclusion that the Authority does not have the power to go beyond making recommendations in the Plan regarding wetlands does not lessen the importance of such recommendations.  The Authority is required to consult with its advisory committees and appropriate federal, state, and local agencies in developing the Plan.  RCW 90.70.055.  The Authority must also seek out extensive public participation regarding the Plan.  Id.  Recommendations in the Plan should be of great use in that they will reflect the benefits of participation by a variety of experts and persons involved in Puget Sound water quality and wetlands protection.  Further, the Authority can set standards for reporting progress in implementing the Plan.  RCW 90.70.060(17).  Such reporting and the public attention given it, give the Authority important influence in effecting the progress of the Plan.

            With regard to the second part of your question, we do not believe that the Authority has the power to require local governments to adopt the Authority's recommendations.  Chapter 90.70 RCW does not confirm this broad power on the Authority.  RCW 90.70.070(1) is the key provision addressing the relationship of the Authority and local governments regarding the Plan:

            In conducting planning, regulatory, and appeals actions, the state agencies and local governments identified in the plan must evaluate, and incorporate as applicable, subject to the availability of  [[Orig. Op. Page 5]] appropriated funds or other funding sources,
1/the provisions of the plan, including any guidelines, standards
2/and timetables contained in the plan.

            The Authority is also directed to review the progress of local governments in implementing the Plan and local governments identified in the Plan must review their activities and document their consistency with the Plan.  RCW 90.70.070(2), (3).  In addition, the Authority shall review the major actions affected by the Plan which are being considered by local governments and comment regarding consistency in a timely manner.  RCW 90.70.070(4).

            After reviewing RCW 90.70.070, we conclude that the Legislature did not intend to grant the Authority the power to require local governments to adopt provisions of the Plan.  There are three reasons for this conclusion.

            First, the language of RCW 90.70.070(1) does not clearly state that the Authority has such power.  RCW 90.70.070 does not define "must evaluate" or "incorporate as applicable".  The words "as applicable" presumably indicate that local governments are not required to incorporate all parts of the Plan.  Instead, following guidance provided in the Plan, local governments are to determine which Plan provisions apply to them.  Also, "as applicable" may relate to whether local governments have statutory authority to incorporate specific provisions.  By its text, RCW 90.70.070(1) appears to direct local governments identified in the Plan, in conducting planning, regulatory, and appeals actions, to evaluate the entire plan and determine the applicable provisions, based upon the language in the Plan and existing statutory authority of the local governments.  Local governments must then incorporate the applicable Plan provisions,  [[Orig. Op. Page 6]] subject to the availability of funds.3/

             Second, the powers of the Authority are limited to those powers either expressly granted or necessarily implied in chapter 90.70 RCW.  See Human Rights Comm'n v. Cheney School Dist., 97 Wn.2d 118, 125, 641 P.2d 163 (1982).  As discussed above, chapter 90.70 RCW does not expressly state that the Authority may directly require local governments to adopt provisions of the Plan.  Nor is such authority necessarily implied.  The Authority does not need the power to require such actions by local governments in order to carry out the Authority's mandate to prepare a comprehensive Puget Sound water quality management plan.

            If the Legislature had intended that RCW 90.70.070(1) effectively grant the Authority power to require local governments to adopt Plan provisions, the Legislature would have done so by language that was clear and unambiguous.  We do not find this grant of power in the statute and we will not read or imply such a broad conference of power upon the Authority into the statute.

            This is consistent with the approach we took in AGO 1991 No. 4.  There we were asked if the Ecological Commission had the authority to disapprove shoreline management programs developed in accordance with the Shoreline Management Act.  We concluded that the Commission did not have this power.  In reaching this conclusion we stated:

            When the Legislature intends to confer review authority over one agency's decisions upon another agency, it  [[Orig. Op. Page 7]] does so by plain language and there is no need to resort to inference and implication.

AGO 1991 No. 4 at 6.

            In our judgment, RCW 43.21A.190 does not expressly grant the Ecological Commission the power to veto rules and regulations proposed by the Department [of Ecology] for adoption . . . .

            We will not read that meaning into the plain language of the statute.

AGO 1991 No. 4 at 7.  Similarly, in this case we will not read into the law a requirement that local governments must adopt the recommendation of the Authority.

            Third, the legislative history relating to the passage of the 1990 amendments to chapter 90.70 RCW is consistent with our conclusion.  The Legislature considered and rejected several amendments that would have conferred upon the Authority the power to force compliance with the Plan by local governments.  The amendments to chapter 90.70 [RCW] were contained in House Bill 2482.  State of Washington Printed Bills of the Legislature, (House Bills) 51st session, house, 2400-2499 (1989-90).  When it was introduced, House Bill 2482 was referred to the Committee on Environmental Affairs.  1House Journal, 51st Legislature (1990), at 52.

            RCW 90.70.060 which addresses the elements of the Plan to be adopted by the Authority provides in part:  "The plan adopted by the authority shall be a positive document prescribing the needed actions for the maintenance and enhancement of Puget Sound water quality."

            House Bill 2482 did not amend this language.  Subsequently, the Committee on Environmental Affairs recommended the passage of a substitute bill.  1House Journal, 51st Legislature (1990), at 219.  Substitute House Bill 2482 would have amended RCW 90.70.060 as follows:

            The plan adopted by the authority shall be a positive document ((prescribing))and shall be implemented by state agencies and local governments subject to the availability of appropriated funds, taxing or fee generating authority, or access to other funding sources.  The plan shall prescribe the needed actions for the maintenance and enhancement of Puget Sound water quality.

             [[Orig. Op. Page 8]]

SHB 2482, § 5.  House Bills (1989-90).  The language of the substitute bill clearly and unambiguously required state and local governments to implement the Plan adopted by the Authority.

            However, the House did not adopt the amendment to RCW 90.70.060 quoted above.  When the substitute bill was adopted and engrossed, this language was missing and this part of RCW 90.70.060 remained unchanged.  ESHB 2482, § 5.  1 House Journal, 51st Legislature (1990), at 650.  House Bills (1989-90).  Engrossed Substitute Bill 2482 passed the House in this form.  1House Journal, 51st Legislature (1990), at 653.

            Amendments were also proposed in the Senate.  Senator Metcalf proposed that the following language be added to RCW 90.70.070 by amending section 6 of Engrossed Substitute House Bill 2482:

            The implementation of the regulatory elements of the plan is solely the responsibility of state and federal agencies and local governments identified in the plan, except as specifically provided in this chapter, the authority is not responsible for enforcement of the plan.

1 Senate Journal, 51st Legislature, (1990) at 827.  This amendment would also have clearly placed the responsibility of enforcing the Plan on state and local governments.  This amendment was defeated.  Id.

            Senator Metcalf also proposed that the phrase "recommendations for" be eliminated from RCW 90.70.060(7), (12), and (14).  Senator Metcalf also proposed that the phrase "recommendations on" be removed from RCW 90.70.060(11) and that RCW 90.70.060(11) be amended to read "A program for protecting, preserving and where possible, restoring wetlands and wildlife habitat and shellfish beds throughout Puget Sound."  1Senate Journal, 51st Legislature (1990), at 826.

            Senator Metcalf argued that the amendments would make the Plan mandatory rather than a "wish list."  Senator Owen opposed the amendments, arguing that the amendments would create conflicts within the bill.  He argued that if the amendments passed, one provision would require the Plan to be implemented and another provision would require implementation only as funding was available.  Senator Metcalf responded that the effect of the amendments would be to make the Plan mandatory only as money was available for implementation.  Tape of Senate Floor Action, February 27, 1990.  Senator Metcalf's amendments were rejected.  1Senate Journal, 51st Legislature (1990), at 826.

             [[Orig. Op. Page 9]]

            We recognize that it can be precarious to attempt to ascertain the meaning of a statute from rejected amendments to the statute subsequent to its original enactment.  SeeMurphy v. Department of Licensing, 28 Wn. App. 620, 624-25, 625, P.2d 732 (1981).  On one hand, an amendment of an unambiguous statute generally reflects an intent to change the law.  Vita Food Prods. Inc. v. State, 91 Wn.2d 132, 134, 587 P.2d 535 (1978).  On the other hand, sometimes the Legislature's intent is to clarify rather than change existing law.  State v. Standifer, 110 Wn.2d 90, 94, 750 P.2d 258 (1988).

            In this case we do not base our opinion on the Legislature history of the law.  However, the history reveals amendments in both the House and the Senate to require local governments to adopt or enforce the Authority's Plan.  These amendments were rejected.  This is consistent with our view that chapter 90.70 RCW does not grant the Authority the power to require local governments to adopt the Plan.

            As we stated in AGO 1989 No. 21, 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.  And the Authority acts as a watchdog to monitor the progress of state and local governments.  RCW 90.70.070(2) provides that the Authority shall review the progress of state and local governments in implementing the Plan and can require written explanations for shortfalls in the implementation.  The results of this review and explanation shall be included in the biennial state of the sound report which is submitted to the Governor and the Legislature.  RCW 90.70.055(4)(d).

            Nevertheless, chapter 90.70 RCW requires only that the Plan contain recommendations for protecting wetlands, and that local governments must evaluate and incorporate these recommendations.  RCW 90.70.070(1) leaves to state agencies and local governments the discretion to determine how the recommendations apply within their jurisdictions, the appropriate procedures to use in implementing the recommendations, and to assess funding resources.

             [[Orig. Op. Page 10]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

LAURIE S. HALVORSON
Assistant Attorney General