Spokane Cnty. v. Wash. Dep't of Fish & Wildlife
430 P.3d 655
Wash.2018Background
- Chapter 77.55 RCW (the Hydraulic Code) requires preconstruction permits (HPAs) for "hydraulic projects" defined by their effects on state waters: work that "will use, divert, obstruct, or change the natural flow or bed" of fresh or salt waters.
- In 2015 the Department of Fish and Wildlife adopted rules requiring HPAs for bridge construction/maintenance even when work occurs entirely above the ordinary high-water line (OHWL).
- A coalition of counties challenged the Department, arguing upland projects (entirely above the OHWL) are outside statutory permitting authority.
- The Attorney General issued an opinion supporting the Department: the statute covers projects that meet the effects test regardless of whether they are above or below the OHWL.
- The trial court upheld the Department; the Supreme Court reviewed whether the legislature intended to limit permitting to projects at or below the OHWL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "hydraulic project" covers only projects absolutely certain to affect waters (interpretation of "will") | "Will" requires absolute certainty that the project will use/divert/obstruct/change waters; otherwise no permit. | "Will" is predictive: projects reasonably certain to affect waters meet the test; agency may decide. | Court: "will" means reasonable certainty/prediction, not preordained inevitability; defer to agency expertise. |
| Whether upland projects (entirely above OHWL) are outside Department jurisdiction | Upland projects cannot be certain to affect waters, so are exempt from HPAs. | Many upland projects foreseeably affect waters (stormwater, vegetation removal, bulkheads, bridges); statute contemplates such regulation. | Court: Upland projects can meet the effects test; Department may regulate upland projects that are reasonably certain to affect waters. |
| Whether 2015 WAC rule requiring HPAs for bridge work above OHWL exceeded statutory authority | Rule exceeds statutory authority because it regulates landward-only work. | Rule implements the effects-based statutory test and addresses foreseeable impacts (paint, debris, runoff). | Court: Rule is within statutory authority; upheld. |
| Whether legislative history or statutory structure supports limiting jurisdiction to below-OHWL projects | Counties: legislative intent favors a location-based limit. | Department: textual effects test and legislative history indicate intent to include upland activities that affect waters. | Court: Legislative history and prior statutory provisions confirm legislature understood and intended effects-based jurisdiction to reach upland projects. |
Key Cases Cited
- Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wash.2d 637 (administrative rule validity; challenger bears burden to show agency exceeded authority)
- State v. Velasquez, 176 Wash.2d 333 (statutory interpretation reviewed de novo; start with plain language)
- State v. J.P., 149 Wash.2d 444 (plain language/ordinary meaning as starting point for statutory construction)
- City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wash.2d 38 (deference to agency expertise on technical determinations)