REGULATORY AUTHORITY UNDER THE HYDRAULIC PROJECT APPROVAL PROCESS RELATED TO ACTIVITIES ABOVE THE ORDINARY HIGH WATER LINE

AGO 2016 No. 6 – Jun 3 2016
Attorney General Bob Ferguson

DEPARTMENT OF FISH AND WILDLIFE—PERMIT—WATER—RIVER—TIDELANDS—Regulatory Authority Under The Hydraulic Project Approval Process Related To Activities Above The Ordinary High Water Line

 

The regulatory authority of the Department of Fish and Wildlife to require hydraulic project approval is not limited to activities conducted at or below the ordinary high water line. It includes authority over work “that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” Fixing a precise limit to the Department’s authority above the ordinary high water line is impossible in the abstract; whether a particular project is subject to hydraulic project approval will depend on the facts in the given situation.

June 3, 2016

 

James Unsworth, Ph.D.
Director, Department of Fish and Wildlife
600 Capitol Way N
Olympia, WA   98501-1091

 

Cite As:
AGO 2016 No. 6

Dear Dr. Unsworth:

By letter previously acknowledged, you requested our opinion on two questions we paraphrase as follows:

1.         Does RCW 77.55 limit the regulatory authority of the Washington Department of Fish and Wildlife (WDFW) under the Hydraulic Project Approval (HPA) process to activities conducted at or below the ordinary high water line?

2.         If the answer to the first question is no, then what conditions must be present to justify WDFW’s exercise of HPA authority on activities conducted above the ordinary high water line?

BRIEF ANSWERS

            No. RCW 77.55’s plain language does not limit WDFW’s HPA authority solely to activities at or below the ordinary high water line.

With some statutory exceptions, WDFW is justified in exercising HPA authority on any activity that meets RCW 77.55.011(11)’s definition of a “hydraulic project,” regardless of

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whether the activity is above or below ordinary high water lines. The activity must be construction or performance of work that affects state waters below the ordinary high water line by using, diverting, obstructing, or changing the natural flow or bed of the state water. This authority clearly extends to hydraulic projects landward of the ordinary high water line, though exactly how far beyond the ordinary high water line the authority extends will depend on the facts of any given circumstance.

BACKGROUND

            Your questions concern RCW 77.55, which sets forth WDFW’s regulatory authority over “hydraulic projects,” a term that refers to certain construction and work affecting state waters. RCW 77.55.021(1) states:

Except as provided in RCW 77.55.031, 77.55.051, 77.55.041, and 77.55.361, in the event that any person or government agency desires to undertake a hydraulic project, the person or government agency shall, before commencing work thereon, secure the approval of the department in the form of a permit as to the adequacy of the means proposed for the protection of fish life.

The specified statutory exceptions are driving across an established ford (RCW 77.55.031); removing or controlling certain invasive plants (RCW 77.55.051); removing derelict fish, crab, and shellfish gear (RCW 77.55.041); and permitting under the forest practices act (RCW 77.55.361).

RCW 77.55.011 defines three terms used in RCW 77.55.021(1):

  • “Department” is WDFW. RCW 77.55.011(5).
  • “Permit” is “a hydraulic project approval permit issued under [RCW 77.55].” RCW 77.55.011(18). Such permits are commonly referred to as “HPA permits.”
  • “‘Hydraulic project’ means the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” RCW 77.55.011(11).

RCW 77.55 does not define “hydraulic” as a term independent of “project.” Nor does it define “flow,” natural or otherwise. RCW 77.55.011, however, does define two terms used in the meaning of “hydraulic projec”:

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  • “‘Waters of the state’[1] and ‘state waters’ means all salt and freshwaters waterward of the ordinary high water line and within the territorial boundary of the state.” RCW 77.55.011(25).
  • “‘Bed’ means the land below the ordinary high water lines of state waters” excluding all artificial watercourses but for those located where a natural watercourse previously existed. RCW 77.55.011(1).

RCW 77.55.011 further defines “ordinary high water line,” used in both the definitions of “state waters” and “bed”:

  • An “ordinary high water line” is “the mark on the shores of all water that will be found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual, and so long continued in ordinary years as to mark upon the soil or vegetation a character distinct from the abutting upland. Provided, that in any area where the ordinary high water line cannot be found, the ordinary high water line adjoining saltwater is the line of mean higher high water and the ordinary high water line adjoining freshwater is the elevation of the mean annual flood.” RCW 77.55.011(16).

The statute also describes a process for obtaining WDFW’s approval before starting a hydraulic project. Specifically, RCW 77.55.021(2) requires proponents of a hydraulic project to submit an application. Among other things, the application must include “[g]eneral plans for the overall project,” “[c]omplete plans and specifications of the proposed construction or work within the mean higher high water line in saltwater or within the ordinary high water line in freshwater,” and “[c]omplete plans and specifications for the proper protection of fish life[.]” RCW 77.55.021(2)(a)-(c).

Finally, RCW 77.55.021(1) describes the purpose of WDFW’s review of an application as the evaluation of “the adequacy of the means proposed for the protection of fish life.” RCW 77.55.021(7)(a) further provides that “[p]rotection of fish life is the only ground upon which approval of a permit may be denied or conditioned.” Under RCW 77.55.231(1), any conditions imposed by WDFW on an HPA permit “must be reasonably related to the project.”

With this statutory background in mind, we turn to the analysis of the activities subject to an HPA permit.

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ANALYSIS

1.Does RCW 77.55 limit the regulatory authority of the Washington Department of Fish and Wildlife (WDFW) under the Hydraulic Project Approval (HPA) process to activities conducted at or below the ordinary high water line?

RCW 77.55.021(1) establishes WDFW’s HPA permitting authority. The statute imposes the obligation to obtain an HPA permit on persons or government agencies wanting to undertake a hydraulic project. Thus, the definition of “hydraulic project,” as RCW 77.55 uses that term, is key to determining the extent of WDFW’s HPA authority. If a statute defines a term, that definition is the basis of interpreting the statute. United States v. Hoffman, 154 Wn.2d 730, 741, 116 P.3d 999 (2005). If a term is undefined, we look to its plain meaning. Id. If a statute’s meaning is unambiguous, statutory construction ends with the plain-meaning analysis. See Citizens All. for Prop. Rights Legal Fund v. San Juan County, 184 Wn.2d 428, 435‑36, 359 P.3d 753 (2015). If, however, a statute retains more than one reasonable meaning, other matters such as legislative history are considered. Id.

RCW 77.55.011(11) defines a “hydraulic project” as “the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” Nothing in the plain language of this definition requires that the work take place below the ordinary high water line to qualify as a hydraulic project. Under the basic rules of grammar, the main object in the definition—construction or performance of work—is modified not by its location in state waters, but by its effect on state waters. Moreover, some types of work done above the ordinary high water line clearly can divert, obstruct, or change the “natural flow or bed” of state waters. For example, bulldozing a steep bank directly above a river could change the river bed and divert, obstruct, or change the river flow if the work is undertaken without proper protections and significant waste material falls into the river. Similarly, placement of structures in a floodway above the ordinary high water line can redirect flood flows causing catastrophic change to fish habitat in river beds. To give a final example, a structure above the ordinary high water line can change tidal beds (destroying forage fish habitat) by diverting wave action at extreme high tide, causing scour erosion and blocking the sloughing of sands that nourish beaches.

Despite this plain language, commenters have offered three main arguments as to why they believe that HPA authority ends at the ordinary high water line. We explain in turn why we reject each one.

First, some have argued that WDFW’s HPA authority is limited to work performed below the ordinary high water line because the statute defines “bed” as “the land below the ordinary high water lines of state waters.” RCW 77.55.011(1). But the statute does not define hydraulic projects as work performed on the bed of state waters, but rather as “work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.” RCW 77.55.011(11). As noted previously, work above the ordinary high water line can

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obstruct or change the bed of state waters. And in any case, the statute also covers “work that will use, divert, obstruct, or change the natural flow” of state waters. RCW 77.55.011(11) (emphasis added).

Second, some have argued that the first three verbs in the definition of “hydraulic project”— “use, divert, [and] obstruct”— make sense only if the regulated activity itself is taking place in the water. As we note above, however, upland activities can divert or obstruct the flow and beds of water bodies. In any event, we cannot ignore the final verb—”change”—just because it is arguably broader than the other three. While courts attempt to give meaning to every word in a statute (McGinnis v. State, 152 Wn.2d 639, 645, 99 P.3d 1240 (2004)), there is no rule of statutory construction that every word in a statute must be relevant to every application of the statute.

Third, some have argued that a project must take place below the ordinary high water line to be a “hydraulic project,” because the dictionary meaning of “hydraulic” is “of or relating to water.” Webster’s Third New International Dictionary 1107 (2002). This reasoning is mistaken because RCW 77.55.011(11) provides a statutory definition of a “hydraulic project.” Therefore, we rely on the statutory definition. Hoffman, 154 Wn.2d at 741. In the context of this statute, “hydraulic project” is a term of art, the meaning of which would be lost if we simply characterized a project as a hydraulic project because it is in or uses the water.

The statutory context as a whole confirms our plain language interpretation. See, e.g., Diaz v. State, 175 Wn.2d 457, 466, 285 P.3d 873 (2012) (Statutes relating to the same subject are interpreted in light of each other, “considering all statutes on the same subject, taking into account all that the legislature has said on the subject, and attempting to create a unified whole.” (citing Hallauer v. Spectrum Props., Inc., 143 Wn.2d 126, 146, 18 P.3d 540 (2001))). Several provisions in RCW 77.55 refer to the ordinary high water line in ways that would be unnecessary if WDFW had no authority beyond that point. See, e.g., McGinnis v. State, 152 Wn.2d 639, 645, 99 P.3d 1240 (2004) (“The legislature is presumed not to include unnecessary language when it enacts legislation.”). For example, RCW 77.55.161(3)(c) prohibits WDFW from requiring changes to storm water outfalls above the ordinary high water line, which would be unnecessary if WDFW had no authority above the ordinary high water line. Similarly, RCW 77.55.321(1) allows WDFW to charge an application fee only where the project is located at or below the ordinary high water line, a limitation that would be unnecessary if WDFW had no authority to issue permits for projects above the ordinary high water line.

Finally, RCW 77.55 references projects that could occur, at least in part, above the line of ordinary high water and are subject to an HPA permit. For example, “stream bank stabilization” is subject to permits under RCW 77.55.021(9)-(15). RCW 77.55.011(23) defines “stream bank stabilization” as projects that include “bank resloping,” “planting of woody vegetation,” and “bank protection,” which would necessarily include the area above the ordinary high water line. Other examples are dikes in RCW 77.55.131, bulkheads in RCW 77.55.141, and shoreline armoring, riparian habitat, and boat ramps in connection with marinas under RCW 77.55.151.

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For these reasons, we conclude that RCW 77.55’s plain language does not limit WDFW’s HPA authority solely to activities at or below the ordinary high water line. Because the statute is unambiguous, other means of statutory construction are unnecessary. Nonetheless, because some commenters have raised alternative—albeit incorrect—interpretations of the statute and its legislative history, we address means of statutory construction necessary only if a statute is ambiguous.

Where a statute is ambiguous, courts defer to reasonable interpretations offered by the agency charged with implementing the statute. See, e.g., Cornelius v. Dep’t of Ecology, 182 Wn.2d 574, 585, 344 P.3d 199 (2015) (“[W]e give the agency’s interpretation of the law great weight where the statute is within the agency’s special expertise.”). For decades, WDFW has construed its authority over hydraulic projects as extending to work above the ordinary high water line. For example, in In re Denial of an Hydraulic Project Approval to Young,[2] a 1997 administrative case concerning a replacement bulkhead built inland from an existing bulkhead, the administrative law judge concluded “[c]learly a project which is located within the ordinary high water mark would fall within the jurisdiction of the department. This is not the exclusive criteria, however, to determine whether an HPA is required.” Initial Order at 8. “[T]he pivotal question is . . . whether the construction of the bulkhead did use, divert, obstruct or change the natural flow or bed of the lake.” Id. WDFW’s director formally adopted the conclusions as his own. Modifying Order at 1; see also Letter from Gary Locke, Governor, State of Washington, to Ivan Urnovitz & Vernon Young, Northwest Mining Ass’n (Sept. 6, 2000) (attached).

WDFW’s prior decisions also underscore the potentially absurd result that could ensue if HPA authority ended abruptly at the ordinary high water mark. We should avoid a reading of a statute resulting in absurd or strained consequences subverting legislative intent. See Bowie v. Dep’t of Revenue, 171 Wn.2d 1, 14-15, 248 P.3d 504 (2011). That the legislature intended the HPA review to protect fish life is clear from RCW 77.55.231, which identifies the purpose of the review as evaluation of whether the means to protect fish life are adequate. Further, RCW 77.55.021(7)(a) limits the reasons for denial or conditioning an HPA permit to protection of fish life. If the facts of a case show that a project above the ordinary high water line impacts fish life—as in the case of In re Denial of an Hydraulic Project Approval to Young—WDFW would be unable to protect fish life merely because the project is just above the ordinary high water mark. See Initial Order at 3 (the WDFW biologist agrees the high water mark is waterward of the existing bulkhead), 5, 10 (a concrete bulkhead has a detrimental effect on fish life though above the ordinary high water line). This would be an absurd consequence subverting legislative intent. Thus, the better reading is that HPA review is not limited to projects solely below the ordinary high water line.

We look finally at RCW 77.55’s legislative history to determine legislative intent. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 527, 243 P.3d 1283 (2010). We find nothing in

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the legislative history of RCW 77.55 to reach a conclusion different from that we reached through plain meaning analysis.

The state first enacted a statutory obligation for hydraulic project approval in 1943. Laws of 1943, ch. 40. The requirement for a permit applied to a person, firm, corporation, or government agency desiring to

construct any form of hydraulic project or other project that will use, divert, obstruct or change the natural flow or bed of any river or stream or that will utilize any of the waters of the state or materials from the stream beds[.]

Laws of 1943, ch. 40, § 1.

In 1949, the legislature retained the 1943 act when enacting a comprehensive fisheries code. Laws of 1949, ch. 112. With a few exceptions, the substance of this provision remained unchanged from 1943 to 1983. Laws of 1949, ch. 112, § 48. One exception was a change in 1967 whereby “any form of hydraulic project or other project” (Laws of 1955, ch. 12, 75.20.100 (emphasis added)) became “any form of hydraulic project or other work” (Laws of 1967, ch. 48, § 1 (emphasis added)). Another change in 1975 added the definition for “bed” as meaning “that portion of a river or stream and the shorelands within the ordinary high water lines.” Laws of 1975, 1st Ex. Sess., ch. 29, § 1.

In 1983, the legislature overhauled the fisheries code, including the provisions concerning hydraulic project approval. Laws of 1983, 1st Ex. Sess., ch. 46. The provision currently codified as RCW 77.55.021(1) received only the addition of “salt or fresh” to describe the “waters of the state.” Laws of 1983, 1st Ex. Sess., ch. 46, § 75.

In 1986, the legislature made additional changes. Laws of 1986, ch. 173. With the  changes, the obligation to obtain a permit applied to any person or government agency desiring to

construct any form of hydraulic project or perform other work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters of the state[.]

Laws of 1986, ch. 173, § 1.

An attachment to your request letter noted that the legislature entertained two bills in the 1990s that would have statutorily limited WDFW’s hydraulic project approval to work at or below the ordinary high water line. The first was Senate Bill 5085 in 1993, which the legislature did not pass. The second was Senate Bill 5632 in 1995, which did pass (as E2SSB 5632) but without the provision that would have limited WDFW’s hydraulic project approval to work at or below the ordinary high water line. The courts “are loathe to ascribe any meaning to the Legislature’s failure to pass a bill into law.” State v. Cronin, 130 Wn.2d 392, 400, 923 P.2d 694

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(1996). Therefore, we do not believe the fact that the provisions did not pass is informative about the extent of WDFW’s HPA authority. We nonetheless note that the passage of the 1995 bill without the express language indicates that the legislature considered changing, but did not, the longstanding statutory language.

The next significant reenactment occurred in 2005. Laws of 2005, ch. 146. The legislation repealed the prior version of the provision currently codified as RCW 77.55.021(1), replacing it with the current version. Laws of 2005, ch. 146, § 201. The new definition of “hydraulic project” was the same as currently codified at RCW 77.55.011(11), described above. Laws of 2005, ch. 146, § 101. The new definitions section provided by the 2005 legislation also added definitions for “waters of the state,” “state waters,” “bed,” and “ordinary high water line.”

The legislative historegardless of whether identified as a “hydraulic project or . . . other work” or a “hydraulic project” under the new statutory definition, the obligation to obtain an HPA permit has been for any work affecting the flow or bed of state waters regardless of the activity’s locatiy of RCW 77.55 shows consistency of language throughout the 73 years since its first enactment. The legislature did not alter or modify the language at any point in a manner that would signal an intention different from the plain meaning of the current version. Ron relative to the ordinary high water line. Whether under plain meaning analysis or other means of statutory construction, RCW 77.55 does not limit WDFW’s authority to activities at or below the ordinary high water line. We turn now to your second question.

2.If the answer to the first question is no, then what conditions must be present to justify WDFW’s exercise of HPA authority on activities conducted above the ordinary high water line?

For WDFW’s HPA authority to extend to any activity, regardless of whether it is above or below the ordinary high water line, the following conditions must be present:

  • The activity must be construction or performance of work; and
  • The activity must either:

(1)        Use, divert, obstruct, or change the natural flow of the state water or

(2)        Use, divert, obstruct, or change the bed of the state water.

RCW 77.55.011(11) (definition of “hydraulic project”).[3]

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Some commenters claim that the lack of a boundary to HPA authority leads to an absurd result. In their view, if WDFW’s HPA authority is not limited to the ordinary high water line, there is no limit to the extent of WDFW’s authority because all work within a floodplain or watershed affecting runoff has the potential (theoretically) to “change” the natural flow. We see two flaws in this concern.

First, WDFW has not historically interpreted its authority so broadly, instead requiring permits only for activities that meet the definition of “hydraulic project” and are in or near state waters. See, e.g., http://wdfw.wa.gov/licensing/hpa (last visited May 31, 2016) (HPA website) (“Since 1943, anyone planning certain construction projects or activities in or near state waters  has been required to obtain . . . an HPA.”); Unsworth Opinion Request Letter at 1 (explaining that “WDFW has required project proponents to apply for an HPA for . . . those projects that will be located landward of the [ordinary high water line] and immediately adjacent to waters of the state”).

Second, a project is less likely to meet the statutory criteria of a “hydraulic project” the farther it is from a water body. This is so for at least three reasons:

(1)        Impacts generally diminish over distance, so a project is less likely to “use, divert, obstruct, or change the natural flow or bed of” a water body the farther the project is from the water. RCW 77.55.011(11).

(2)        For the same reason, a project far from the water is also less likely to affect fish life, which is the concern motivating HPA review; protection of fish life is the sole basis on which WDFW can condition or deny a permit. See RCW 77.55.231, .021(7)(a).

(3)        The statutory examples of work above the ordinary high water line that WDFW explicitly regulates are generally very near a water body. See, e.g., RCW 77.55.021(9)-(15) (“stream bank stabilization”); RCW 77.55.131 (dikes); RCW 77.55.141 (bulkheads); RCW 77.55.151 (marinas and boat ramps); see also, e.g., In re Bankruptcy Petition of Wieber, 182 Wn.2d 919, 926, 347 P.3d 41 (2015) (looking to a statutory scheme as a whole in order to determine the reach of a statute).

Thus, it would be very difficult for WDFW to assert authority over a project far removed from state waters.

Such limits to WDFW’s authority, however, give no basis to draw an arbitrary line beyond which WDFW lacks authority. Whether a given type of project is too far from a waterway to be subject to HPA review depends on the facts of the particular situation. The question of whether a particular project can change the bed or flow to the extent of affecting fish life involves technical expertise. A court accords an agency’s interpretation of law great weight

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where the statute is within the agency’s special expertise. Cornelius, 182 Wn.2d at 585. WDFW has such expertise: it is the agency charged with enforcement of an HPA permit; its review is limited to protection of fish life; and the conditions WDFW imposes on the permit must be reasonably related to the project. RCW 77.55.021(1), .021(7)(a), .231. Accordingly, we believe that courts would be somewhat deferential to WDFW’s conclusions as to whether a particular project or type of project meets the statutory standard for requiring an HPA permit. We note that WDFW has provided notice in WAC 220-660 about certain work that is subject to an HPA requirement.[4]

In summary, we conclude that WDFW’s HPA authority is not limited to activities at or below the ordinary high water line. WDFW is justified in exercising HPA authority on any activity that complies with the statutory definition of a “hydraulic project,” regardless of whether the activity is above or below ordinary high water lines. While drawing a fixed upland boundary to WDFW’s HPA authority is impossible, that authority clearly diminishes the farther a project is from the water.

We trust that the foregoing will be useful to you.

 

ROBERT W. FERGUSON

Attorney General

 

JANIS SNOEY

Assistant Attorney General

 

wros

attachments


[1] Though the definition of hydraulic project uses “salt or freshwaters of the state” instead of “waters of the state,” the reference to “salt and freshwaters” in the definition of “waters of the state” indicates its applicability to the term used in the definition of hydraulic project.

[2] In re Denial of an Hydraulic Project Approval to Young, No. AH-97-106 (Wash. Dep’t of Fish and Wildlife Apr. 30, 1997) (Initial Order) (attached). Also attached as part of this document is the September 11, 1997, Decision Modifying Initial Order (Modifying Order).

[3] RCW 77.55.021(1) exempts four activities that meet the definition of a hydraulic project from the necessity of obtaining an HPA permit. Generally, each of the four activities—driving across an established ford; removing or controlling certain invasive plants; removing derelict fish, crab, and shellfish gear; and permitting under the forest practices act—must comply with certain separate statutory requirements in order to qualify for the exemption. See RCW 77.55.021(1), .031, .051, .041, .361.

[4] Whether deference to WDFW’s expertise is appropriate in any particular case would depend on the circumstances. Deference to WDFW’s interpretation of this statute would be particularly strong where it acts by rule to address particular categories of work. See, e.g., WAC 220-660-190 (addressing water crossing structures), ‑270 (utility crossings in freshwater). Adopted rules are presumed valid (RCW 34.05.570(1)) and, in this context, those rules both provide notice to the regulated public that the project requires an HPA permit and memorialize the agency’s technical expertise in applying the HPA statute to the particular subject.