Filed
Washington State
Court of Appeals
Division Two
June 8, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
PROTECT ZANGLE COVE; COALITION TO No. 52906-8-II
PROTECT PUGET SOUND HABITAT; and
WILD FISH CONSERVANCY,
Appellants,
v.
WASHINGTON DEPARTMENT OF FISH PUBLISHED OPINION
AND WILDLIFE; JOE STOHR, Acting
Director of the Washington Department of Fish
and Wildlife; and PACIFIC NORTHWEST
AQUACULTURE, LLC,
Respondents,
and
TAYLOR SHELLFISH COMPANY, INC.,
Respondent-Intervenor.
CRUSER, J. — Protect Zangle Cove, Coalition to Protect Puget Sound Habitat, and Wild
Fish Conservancy (collectively, Appellants) sought declaratory and injunctive relief in Thurston
County Superior Court, alleging that the “Hydraulic Code,” chapter 77.55 RCW, permitting
requirements apply to the aquaculture industry and that WAC 220-660-040(2)(l), which largely
exempts aquaculture from Hydraulic Code permitting requirements, is an invalid exercise of the
Commission of Fish and Wildlife’s statutory rulemaking authority. In addition to the Washington
Department of Fish and Wildlife, (WDFW), Appellants named Pacific Northwest Aquaculture
No. 52906-8-II
(PNA) as a defendant and sought an injunction to prevent PNA from continuing construction on a
proposed geoduck farm on Zangle Cove until PNA received a Hydraulic Project Approval (HPA)
permit. PNA’s business partner, Taylor Shellfish Company, Inc. (Taylor Shellfish) moved to
intervene and was added as a respondent.
Following the superior court’s order dismissing each claim, Appellants appealed. They
argued that the trial court erred when it concluded that WDFW had no authority to enforce the
Hydraulic Code permitting requirements on aquaculture under RCW 77.115.010(2) because that
statute does not exempt aquaculture from Hydraulic Code permitting requirements and WAC 220-
660-040(2)(l) is thus an invalid rule because it is based on an incorrect interpretation of RCW
77.115.010(2).1 In addition, because the trial court did not reach Appellants’ claim for injunctive
relief against PNA due to its resolution of the statutory interpretation issues, Appellants argue that
we either should enjoin PNA from continuing construction on its geoduck farm until it obtains an
HPA permit, or we should remand this issue to the superior court.
We hold that WAC 220-660-040(2)(l) is a valid rule properly within the scope of the
Commission of Fish and Wildlife’s statutory rulemaking authority. In addition, we decline to reach
the merits of the Appellants’ claim for injunctive relief against PNA because under WAC 220-
660-040(2)(l), PNA’s geoduck cultivation activities are exempt from HPA permit requirements.
Accordingly, we affirm.
1
RCW 77.115.010 was amended in 2018 but this amendment has no impact on our analysis, so
we cite to the current version. LAWS OF 2018, ch. 179, § 6.
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No. 52906-8-II
FACTS
I. AQUACULTURE
Aquaculture is the process of “growing, farming, or cultivating” marine or freshwater
plants and animals such as shellfish, fish, and seaweed in marine or fresh waters by an aquatic
farmer. RCW 15.85.020(1)-(3). As of 2015, commercial shellfish aquaculture has occupied about
25 percent of Washington’s shoreline.
Practices involved in shellfish cultivation vary depending on the species and include
different materials and equipment. Common techniques used in the cultivation of oysters, clams,
and mussels include suspending shellfish from floating rafts or platforms, growing shellfish in
plastic net bags that are either placed directly in the tidelands or attached to artificial structures,
and harvesting shellfish either by hand or mechanically.
Of particular relevance here, geoduck cultivation begins with removal of debris, such as
rocks and driftwood, and extraction of predators, either by hand or with mechanical equipment.
Polyvinyl chloride (PVC) tubes are then inserted into the beach during low tide, leaving a few
inches of the pipe exposed. Geoduck seed clams are placed into the tubes where they burrow into
the substrate. A single acre will often contain approximately 42,000 tubes, with one tube for every
square foot of beach. Plastic netting is placed over the tubes to keep predators away until the young
geoduck clams can burrow deeply enough to safely avoid them. Geoducks are harvested four to
seven years after planting, often using hand-operated water-jet probes that discharge pressurized
water, allowing hand extraction of geoducks that are buried as deep as three feet into the substrate.
Activities involved in aquaculture have both beneficial and harmful environmental
impacts. For example, geoduck culture has been observed to reduce aquatic vegetation. Hydraulic
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harvests of geoducks may disturb the substrate, disrupt fish travel patterns, and can lead to loss of
food sources for endangered species such as Chinook salmon. Chinook salmon are a critical food
source for southern resident orca whales.
Some shellfish aquaculture practices may also benefit the environment. For example, in
the majority of cases, shellfish aquaculture improves water quality and sequesters carbon and
nutrients. Tubes used in geoduck cultivation can increase the presence of transient fish and macro
invertebrate species.
II. ZANGLE COVE GEODUCK FARM
Respondent PNA, in partnership with Taylor Shellfish, plans to operate a commercial
geoduck aquaculture farm on Zangle Cove. Zangle Cove is a privately-owned, triangle-shaped
estuary of “sandy, muddy beach.” Clerk’s Papers (CP) at 490. The proposed property is a single
family residence, and the adjacent properties are also single family homes with small waterfront
lots. Geoduck cultivation on the 1.1 acre inter-tidal property would involve installation of 47,900
PVC tubes with approximately 16 area nets covering the tubes. Nets and tubes will be removed
after 18 months, once the geoducks have burrowed deeply enough to be safe from predators. Five
to six years after planting, geoducks will be hand-harvested using a water pressure device.
PNA and Taylor were required to obtain permits and environmental reviews for their
project. Thurston County reviewed PNA’s proposal and issued a mitigated determination of non-
significance (MDNS) under the State Environmental Policy Act (SEPA), ch. 43.21C RCW. The
MDNS imposed 18 conditions to diminish environmental impacts of the proposal. PNA also
applied for a Shoreline Substantial Development Permit (SSDP) under the Shoreline Management
Act of 1971 (SMA), ch. 90.58 RCW. The permit was approved subject to 14 conditions. In
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addition, PNA’s farm was authorized by the U.S. Army Corps of Engineers under a nationwide
general permit that likewise includes conditions aimed at protecting fish life.
PNA submitted an application for an HPA permit but did not ultimately complete the
application process or receive an HPA permit. PNA began construction on its geoduck farm
without an HPA permit.
III. THE HYDRAULIC CODE
In 1943, the legislature passed the first version of the Hydraulic Code, describing it as “[a]n
Act relating to the protection of fish life.” LAWS OF 1943, ch. 40. At that time, the Department of
Fisheries (Fisheries) and the Department of Game (Game) were separate entities equally
responsible for approving proposed hydraulic projects that would “use, divert, obstruct or change
the natural flow or bed of any river or stream” or “utilize any of the waters of the state.” 2 Id. at §
1. These agencies reviewed plans submitted by entities that intended to engage in hydraulic
projects. Id. Approval of an entity’s plan was conditioned on the adequacy of the plan’s measures
to protect fish life. Id.
Fisheries and Game merged in 1993 and became the current Department of Fish and
Wildlife. See LAWS OF 1993, 1st Spec. Sess., ch. 2. WDFW is presently responsible for enforcing
the Hydraulic Code. RCW 77.55.021(1)3; RCW 77.55.011(5)4. The Commission of Fish and
2
In 1983, the legislature expressly provided that the Hydraulic Code also applies to projects that
occur in saltwater and marine habitats. LAWS OF 1983, 1st Ex. Sess., ch. 46, § 75, codified at RCW
75.20.100.
3
RCW 77.55.021 was amended in 2020 but this amendment has no impact on our analysis, so
we cite to the current version. LAWS OF 2020, ch. 10, § 4.
4
RCW 77.55.011 was amended in 2020 but this amendment has no impact on our analysis, so
we cite to the current version. LAWS OF 2020, ch. 10, § 3.
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No. 52906-8-II
Wildlife is responsible for promulgating rules under the Hydraulic Code, and it has supervisory
authority over WDFW. RCW 77.115.010; RCW 77.12.047; Ferry County v. Concerned Friends
of Ferry County, 155 Wn.2d 824, 828 n.1, 123 P.3d 102 (2005).
Between 1986 and 2005, the legislature added several express exemptions to the Hydraulic
Code. The legislature reorganized the exemptions to the Hydraulic Code into consecutive
provisions in 2005. LAWS OF 2005, ch. 146 §§ 301-402 (exemptions), § 1001 (specifying order).
The Hydraulic Code does not contain an exemption related to aquaculture.
IV. AQUATIC FARMING ACT
In 1985, the legislature passed the Aquatic Farming Act (Aquatic Act), recognizing
aquaculture as a branch of the agricultural industry. LAWS OF 1985, ch. 457, § 1. Where previously
many activities conducted by commercial farmers of aquatic products were regulated by Fisheries
and Game, the Aquatic Act transferred this regulatory authority to the Department of Agriculture
(Agriculture). See id. at § 18 (codified as amended at RCW 77.65.010) (removing the requirement
to obtain a fishing license for production or harvesting of private sector cultured aquatic products);
see also LAWS OF 1985, ch. 457, § 20 (codified as amended at RCW 77.65.280) (amending statutes
that required aquatic farmers to obtain licenses from Fisheries).
In the portion of the Aquatic Act relating to Fisheries, the Act specified that Fisheries was
required to maintain a registration of aquatic farms and to work with Agriculture on a program to
control fish disease. LAWS OF 1985, ch. 457, §§ 8-11 (codified at ch. 77.115 RCW). Section 8 of
the Aquatic Act, codified at RCW 77.115.010(2) and located in the portion of the Aquatic Act
relating to Fisheries, is the primary provision at issue on appeal. RCW 77.115.010(2) provided in
pertinent part that,
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No. 52906-8-II
The director of fisheries shall adopt rules implementing this section.[5]
However, such rules shall have the prior approval of the director of agriculture and
shall provide therein that the director of agriculture has provided such approval. . .
. The authorities granted the department of fisheries by these rules and by RCW
75.08.080(l)(g), 75.24.080, 75.24.110, 75.28.125, and sections 9, 10, and 11 of this
act constitute the only authorities of the department of fisheries to regulate private
sector cultured aquatic products and aquatic farmers as defined in section 2 of this
act.
LAWS OF 1985, ch. 457, §8 (codified at RCW 77.115.010(2)). The Hydraulic Code is not listed
among the statutes over which Fisheries retained authority to regulate aquatic products and farmers
under the Act.
The Aquatic Act also added a subsection to former RCW 75.08.080 (2000),6 stating that
Fisheries’ rulemaking authority under that statute did not apply to private sector cultured aquatic
products, with one exception. LAWS OF 1985, ch. 457, § 17(3) (recodified at RCW 77.12.047(3));
(LAWS OF 2000, ch. 107, § 127). Fisheries retained its rulemaking authority under the statute to
require statistical or biological reports from individuals harvesting or processing fish or shellfish.
Id.
The only explicit reference to the Hydraulic Code in the Aquatic Act was in section 19,
codified at RCW 77.65.250. There, the Aquatic Act provided that “[a] mechanical harvester license
is required to operate a mechanical or hydraulic device for commercially harvesting clams, other
5
This portion of the statute has since been amended to provide that the Fish and Wildlife
Commission shall adopt rules implementing the section. RCW 77.115.010(2).
6
Former RCW 75.08.080 defined the scope of Fisheries’ authority to delineate “the time, place,
gear and size, sex, numbers and amounts of various classes of food fish and shellfish that may be
taken, possessed, sold, or disposed of.” Nw. Gillnetters Ass'n v. Sandison, 95 Wn.2d 638, 644-45,
628 P.2d 800 (1981).
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No. 52906-8-II
than geoduck clams, on a clam farm unless the requirements of [the Hydraulic Code7] are fulfilled
for the proposed activity.” LAWS OF 1985, ch. 457, § 19 (codified at RCW 77.65.250).
V. THE RELATIONSHIP BETWEEN THE HYDRAULIC CODE AND AQUACULTURE FOLLOWING
PASSAGE OF THE AQUATIC ACT
Passage of the Aquatic Act in 1985 did not immediately cease application of Hydraulic
Code permitting requirements on aquaculture-related hydraulic projects. For example, in a
document prepared by the Washington Sea Grant Marine Advisory Services (MAS) in 1989, MAS
described permits and responsible agencies that prospective oyster growers should contact in
creating aquaculture farms. MAS recognized that in 1985, the legislature “declared aquaculture to
be an agricultural endeavor,” and largely transferred responsibility for overseeing aquaculture
activities to Agriculture. CP at 1218. However, MAS maintained that among other permit
requirements, oyster farmers may require HPA permits for “floating structures such as rafts, or
prior to any construction or modification work on or adjacent to a beach.” Id. at 1219.
In addition, in 1999, WDFW began initial efforts to organize a committee “composed of
aquaculturists and others outside of state government that will assist Washington Department of
Fish and Wildlife in the development of rules under the Hydraulic Code (RCW 75.20) for
aquaculture projects.” Id. at 539. The rulemaking committee was to gather with the purpose of
“brainstorming what type of projects should be included under our hydraulic code authority.” Id.
However, the committee never came to fruition. WDFW determined that the Commission of Fish
7
Referencing former RCW 75.20.100, which was recodified as RCW 77.55.100, LAWS OF 2000,
ch. 107 § 129, and later repealed and replaced by the current Hydraulic Code permit statute, RCW
77.55.021. LAWS of 2005, ch. 146 § 1006.
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No. 52906-8-II
and Wildlife would cease its rulemaking efforts for aquaculture projects under the Hydraulic Code
until it determined the extent of its authority to regulate aquaculture.
While WDFW did not move forward with its efforts to create specific Hydraulic Code rules
pertaining to aquaculture, it continued to enforce Hydraulic Code permitting requirements for
certain activities. For example, in 2000, WDFW required an aquatic farmer to obtain an HPA
permit for repair and maintenance of a net pen facility used in fish cultivation. 8 In addition, a Sea
Grant article published in 2005, which was reviewed by WDFW prior to publication, stated that
HPA permits may be required for clam harvesting “depending on the growing methods to be used.”
Id. at 1240.
VI. ATTORNEY GENERAL OPINION
In 2006, State Representative Patricia Lantz wrote a letter to the attorney general requesting
an opinion as to whether geoduck aquaculture facilities were subject to Hydraulic Code permitting
requirements in light of RCW 77.115.010(2) and RCW 77.12.047(3) in the Aquatic Act.
Representative Lantz explained her position that based on the plain meaning of the statutes, the
broader statutory scheme, as well as several canons of statutory interpretation, the Aquatic Act did
not eliminate WDFW’s authority to enforce Hydraulic Code permitting requirements on geoduck
aquaculture facilities.
The attorney general responded in a 2007 opinion. Citing the language in RCW
77.115.010(2), the attorney general’s opinion concluded that this statute presented the entire scope
of WDFW’s authority to regulate private sector aquatic products, which includes geoducks.
8
We have recognized that net pens fit within the definition of aquaculture. Echo Bay Cmty. Ass’n
v. Dep’t of Nat. Res., 139 Wn. App. 321, 333-34, 160 P.3d 1083 (2007).
9
No. 52906-8-II
Because the Hydraulic Code statutes are not included within the statutes enumerated under RCW
77.115.010(2), the opinion explained that RCW 77.115.010(2) limits WDFW’s authority to
enforce Hydraulic Code permitting requirements on aquatic products.
The attorney general opinion further provided that the exemption in RCW 77.115.010(2)
should be narrowly construed to restrict WDFW’s authority only as to activities that involve both
aquatic farmers and aquatic products. Interpreting the statutory language disjunctively as limiting
WDFW’s authority to regulate any aquatic farmer, the attorney general explained, would lead to
absurd results wherein “WDFW could not regulate an aquatic farmer who is hunting because the
laws regulating hunting are not on the statutory list.” Administrative Record (AR) at 952. In an
endnote, the opinion clarified that following this same reasoning “a person who constructs a boat
ramp, dock,” or who engages in “other construction work at an aquatic farm would require [a
Hydraulic Code] permit, because the permit regulates construction; it does not regulate aquaculture
products.” AR at 957 n.4.
VII. WDFW’S ADOPTION OF WAC 220-660-040(2)(l)
After the attorney general issued its opinion, WDFW expressed some confusion about its
practical effects. Specifically, WDFW found it difficult to distinguish between activities related to
aquatic products for which HPA permits were not required and construction activities that took
place at aquaculture facilities for which HPA permits were required.
In WAC 220-660-040(2)(l), which became effective on July 1, 2015, the Fish and Wildlife
Commission promulgated a rule that expressly exempts the “[i]nstallation or maintenance of
tideland and floating private sector commercial fish and shellfish culture facilities” from Hydraulic
Code permitting requirements. However, Hydraulic Code permits remain necessary for “accessory
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No. 52906-8-II
hydraulic structures, such as bulkheads or boat ramps.” Id. The foundation for the rule, according
to the Commission of Fish and Wildlife and WDFW, came from the Aquatic Act provisions
discussed above.
VIII. PROCEDURAL HISTORY
Appellants filed the present action against WDFW, the acting director of WDFW, and
PNA, petitioning for declaratory and injunctive relief predicated on their assertion that aquaculture
facilities are not exempt from Hydraulic Code permitting requirements. Specifically, Appellants
sought declaratory relief under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24
RCW, establishing that WDFW’s practice of declining to enforce Hydraulic Code permitting
requirements on aquaculture facilities is “contrary to law.” CP at 25. In addition, Appellants
claimed that the Fish and Wildlife Commission exceeded its statutory rulemaking authority in
promulgating WAC 220-660-040(2)(l) and that PNA should be enjoined from commencing
operations of its geoduck aquaculture farm without first obtaining a Hydraulic Code permit.
Taylor Shellfish, a “fifth-generation, family owned,” shellfish grower and PNA’s business
partner, moved to intervene. Id. at 107. The superior court granted Taylor’s motion and Taylor was
added as an additional respondent.
Thereafter, PNA filed a CR 12(c) motion for judgment on the pleadings asking that the
superior court dismiss Appellants’ claim requesting an injunction against PNA and Taylor. PNA
argued that the Hydraulic Code does not, either expressly or impliedly, contain a private right of
action. PNA argued that only WDFW may enforce the requirement to obtain an HPA permit.
Appellants responded that their claim for injunctive relief arose under the UDJA and that they did
not attempt to assert a private right of action under the Hydraulic Code. PNA replied that even if
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No. 52906-8-II
Appellants’ injunction claim was considered under the UDJA, Appellants did not satisfy UDJA
requirements for justiciability and their claim should be dismissed on that basis as well. The
superior court did not decide the CR 12(c) motion prior to the hearing on the merits.
The case proceeded to a hearing. Several days after the hearing, the superior court entered
an order dismissing the case. The order provided in its entirety,
The unambiguous, plain language of RCW 77.115.010(2) dictates that the
Washington State Department of Fish and Wildlife does not have authority to
regulate the conduct in question. The prohibition against the regulation of “aquatic
products” and “aquatic farmers” necessarily, by definition, prohibits the regulation
of the farming of those products by those farmers. This unambiguous, plain
language renders further statutory construction inappropriate and renders any other
pending motions moot. Accordingly, the Petitioners’ claims are DISMISSED.
Id. at 1272. Appellants appeal the superior court’s order dismissing their claims.
DISCUSSION
I. VALIDITY OF WAC 220-660-040(2)(l)
A. LEGAL PRINCIPLES
1. VALIDITY OF AN AGENCY RULE
Appellants challenge WAC 220-660-040(2)(l), the rule exempting tideland and floating
commercial fish and shellfish culture facilities from Hydraulic Code permitting requirements,
under the Administrative Procedures Act (APA), Title 34 RCW, arguing that the rule exceeds the
Fish and Wildlife Commission’s statutory rulemaking authority and that it is therefore invalid
under RCW 34.05.570(4)(c)(ii). As the party challenging WAC 220-660-040(2)(l), Appellants
bear the burden of demonstrating its invalidity. RCW 34.05.570(1)(a); Wash. Pub. Ports Ass’n v.
Dep’t of Revenue, 148 Wn.2d 637, 645, 62 P.3d 462 (2003). Validity of an agency rule is a question
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No. 52906-8-II
of law that we review de novo. Ctr. for Envtl. Law and Policy v. Dep’t of Ecology, 196 Wn.2d 17,
28, 468 P.3d 1064 (2020) (CELP).
“‘The party asserting the invalidity must show compelling reasons why the rule conflicts
with the intent and purpose of the legislation.’” Id. (quoting Wash. Fed’n of State Emps. v. Dep’t
of Gen. Admin., 152 Wn. App. 368, 378, 216 P.3d 1061 (2009)). If a given rule is “‘reasonably
consistent,’ with the underlying statute,” then the rule should be upheld as valid. Id. (internal
quotation mark omitted) (quoting Wash. Fed’n of State Emps., 152 Wn. App. at 378). However, a
rule or regulation cannot amend a legislative enactment. Swinomish Indian Tribal Cmty. v. Dep’t
of Ecology, 178 Wn.2d 571, 580-81, 311 P.3d 6 (2013). Therefore, “[r]ules that are not consistent
with the statutes that they implement are invalid.” Id. at 581.
2. STATUTORY INTERPRETATION
Because we must determine whether WAC 220-660-040(2)(l) is consistent with the statute
it implements, this case involves statutory interpretation. See Spokane County v. Dep’t of Fish and
Wildlife, 192 Wn.2d 453, 457, 430 P.3d 655 (2018). Statutory interpretation is an issue of law
subject to de novo review. Id.
Our underlying objective in construing a statute is to “determine and effectuate legislative
intent.” Swinomish Indian Tribal Cmty., 178 Wn.2d at 581. Where a statute is unambiguous, we
must give effect to its plain meaning “as an expression of legislative intent.” Dep’t of Ecology v.
Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
A statute’s plain meaning is determined by considering “all that the [l]egislature has said
in the statute and related statutes which disclose legislative intent about the provision in question.”
Id. at 11. Consequently, “the statutory context, related statutes, and the entire statutory scheme”
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No. 52906-8-II
are all relevant considerations. Swinomish Indian Tribal Cmty., 178 Wash.2d at 582. Words in a
statute are generally examined consistently with their ordinary meaning. Id. at 581-82. However,
where technical terms and terms of art are used, courts construe them in keeping with their
technical meaning. Id. In addition, we will avoid interpretations that yield absurd results because
we will not presume that the legislature intended such results. Spokane County, 192 Wn.2d at 458.
Where a statute’s meaning is plain on its face, our inquiry ends. Lake v. Woodcreek
Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). But in the event that legislative
intent cannot be conclusively determined from a statute’s language, its context, and the broader
statutory scheme, we will look to legislative history and other aids. Gronquist v. Dep’t of Corr.,
196 Wn.2d 564, 572, 475 P.3d 497 (2020). The statutes at issue in this case are located in the
Hydraulic Code and in the Aquatic Act.
3. THE HYDRAULIC CODE
WDWF has authority to permit and regulate hydraulic projects. RCW 77.55.021; Spokane
County, 192 Wn.2d at 458. Under the Hydraulic Code, “any person” undertaking a “hydraulic
project” must obtain a preconstruction project approval permit from WDFW to ensure that the
project is adequately designed to protect fish life. RCW 77.55.021(1).
A “‘[h]ydraulic project’” is one that involves “the construction or performance of work
that will use, divert, obstruct, or change the natural flow or bed of any of the salt or fresh waters
of the state.” RCW 77.55.011(11). Projects within the scope of the Hydraulic Code must result in
“no net loss” of fish through implementation of a “sequence of mitigation actions.” WAC 220-
660-080(3)(c). WDFW may not impose conditions that are disproportionate to the potential impact
on fish life of the given activity. Id.
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4. THE AQUATIC ACT
As part of the Aquatic Act, Agriculture and WDFW jointly administer a program for
aquatic farmers for inspecting and controlling disease in chapter 77.115 RCW. RCW
77.115.010(1). RCW 77.115.010(2) confines WDFW’s authority to regulate “private sector
cultured aquatic products and aquatic farmers as defined RCW 15.85.020,” to a set of statutes that
do not include the Hydraulic Code.
“Private sector cultured aquatic products[,]” as defined within RCW 15.85.020(3) are,
native, nonnative, or hybrids of marine or freshwater plants and animals that are
propagated, farmed, or cultivated on aquatic farms under the supervision and
management of a private sector aquatic farmer or that are naturally set on aquatic
farms which at the time of setting are under the active supervision and management
of a private sector aquatic farmer.
An “[a]quatic farmer” is a “private sector person who commercially farms and manages
the cultivating of private sector cultured aquatic products on the person's own land or on land in
which the person has a present right of possession.” RCW 15.85.020(2). “Aquaculture” is defined
as “the process of growing, farming, or cultivating private sector cultured aquatic products in
marine or fresh waters and includes management by an aquatic farmer.” RCW 15.85.020(1).
RCW 77.12.0479 describes the scope of the state Commission of Fish and Wildlife’s as
authority to
adopt, amend, or repeal rules: specifying the times when the taking of wildlife, fish,
or shellfish is lawful or unlawful; specifying the areas and waters in which the
taking and possession of wildlife, fish, or shellfish is lawful or unlawful; specifying
and defining the gear, appliances, or other equipment and methods that may be used
to take wildlife, fish, or shellfish; and specifying the times, places, and manner in
which the equipment may be used or possessed.
9
RCW 77.12.047 was formerly codified as RCW 75.08.080. LAWS OF 2000, ch. 107 § 127.
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No. 52906-8-II
Puget Sound Harvesters Ass’n v. Wash. Dep’t of Fish and Wildlife, 157 Wn. App. 935, 946, 239
P.3d 1140 (2010). Except for rules relating to statistical and biological reports, the Fish and
Wildlife Commission does not have authority to adopt, amend, or repeal rules related to private
sector cultured aquatic products under this statute. RCW 77.12.047(3). WAC 220-660-040(2)(l),
the Hydraulic Code regulation that Appellants challenge as invalid, expressly references RCW
77.12.047 within its text.
B. ANALYSIS
The parties do not dispute that although the Hydraulic Code lists several express
exemptions from its requirements, aquaculture is not included as an exemption. Moreover, as
recognized in the attorney general opinion, “[t]he work of inserting tubes and netting on the
tidelands for geoduck aquaculture would be a hydraulic project because it is ‘work’ that ‘uses’ and
‘changes’ the ‘bed of any of the salt or freshwaters of the state.’” AR at 951 (quoting RCW
77.55.011). Consequently, the attorney general opinion explained, and the parties do not dispute,
that geoduck aquaculture is a type of activity that would normally necessitate an HPA permit
unless an exemption applies. Therefore, the issue before us is whether RCW 77.115.010(2) and
RCW 77.12.047(3)10 provide such an exemption, and whether WAC 220-660-040(2)(l), which
exempts Hydraulic Code permitting requirements for aquaculture processes such as those involved
in geoduck cultivation, is a valid rule in light of those statutes.
10
Although the superior court did not refer to RCW 77.12.047(3) in its order dismissing the
Appellants’ claims, validity of an agency’s rule is subject to de novo review and we are not bound
by the trial court’s reasoning. CELP, 196 Wn.2d at 28.
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1. PLAIN MEANING
a. Statutory Language
Appellants contend that because RCW 77.115.010(2) limits WDFW’s authority to “license
who can farm and what they can farm” and not its authority to regulate the processes involved in
aquaculture farming, the plain language of RCW 77.115.010(2) does not revoke WDFW’s
authority to require an HPA permit for activities that otherwise fall within the scope of the
Hydraulic Code. Br. of Appellants at 26 (emphasis in original). Specifically, Appellants identify
the legislature’s deliberate use of the terms “‘private sector cultured aquatic products’” and
“‘aquatic farmer[s]’” as defined in RCW 15.85.020, and its avoidance of the term “‘aquaculture,’”
as evidence that the legislature did not intend to preclude application of the Hydraulic Code to
aquaculture processes. Id. at 29 (emphasis omitted). The same is true of RCW 77.12.047(3),
Appellants argue, because that statute limits the Fish and Wildlife Commission’s authority to
promulgate rules related to private sector cultured aquatic products but not to aquaculture
processes or aquatic farmers.
WDFW responds that the language in RCW 77.115.010(2) reflects clear legislative intent
to confine its regulatory authority over aquaculture to the statutes listed therein. While
acknowledging that RCW 77.115.010(2) refers to aquatic products and farmers but not the
aquaculture process, WDFW contends that it is not possible to regulate “an abstract ‘process’”
without also regulating the actors who engage in that process. Br. of Resp’t WDFW at 12. To
support this assertion, WDFW emphasizes that a “person” must apply for a permit and WDFW
holds a “person,” not a “process” accountable for permit violations. Id. WDFW also identifies
RCW 77.12.047(3) as the source of its rulemaking authority, and it argues that RCW 77.12.047(3)
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No. 52906-8-II
expressly prohibits the Fish and Wildlife Commission from promulgating rules that regulate
private sector cultured aquatic products.
PNA, for its part, also argues that the plain language of RCW 77.115.010(2) forecloses
WDFW’s authority to enforce Hydraulic Code requirements on aquaculture processes such as
those involved in geoduck cultivation, notwithstanding the statute’s omission of the phrase
“aquaculture.” Br. of Resp’t PNA at 13. With respect to RCW 77.12.047(3), PNA responds that
RCW 77.115.010(2) must be read in context with RCW 77.12.047(3), and that together, these
statutes unambiguously restrain WDFW’s authority to regulate the conduct at issue.
To the extent that WDFW and PNA assert that RCW 77.115.010(2) must be read to
necessarily limit WDFW’s authority with respect to any project an aquatic farmer would undertake
within the realm of aquaculture, we disagree with that position. Instead, we hold that although
RCW 77.115.010(2) limits WDFW’s authority to regulate aquatic farmers and aquatic products, it
does not wholly constrict WDFW’s authority to enforce the Hydraulic Code for all activities that
may occur at an aquaculture facility. In addition, RCW 77.12.047(3) expressly exempts from the
Fish and Wildlife Commission’s rulemaking authority the ability to adopt, amend, and repeal rules
that pertain to methods and materials used in taking private sector cultured aquatic products.
When these statutes are considered in context with one another, their meaning is
unambiguous, and the result is that WDFW cannot enforce Hydraulic Code permitting
requirements on the geoduck aquaculture processes involved in the instant case. But certain
hydraulic projects conducted by an aquatic farmer at an aquaculture facility, such as construction
of a bulkhead or boat ramp, still require an HPA permit. Accordingly, WAC 220-660-040(2)(l) is
a valid rule.
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i. Plain Language of RCW 77.115.010(2)
Appellants are correct in that the limitation on WDFW’s regulatory authority as applied to
aquatic farmers and aquatic products in RCW 77.115.010(2) does not necessarily impose an
equivalent limit on WDFW’s authority to regulate all aquaculture-related processes. It is well
established that where the legislature elects to use different terms in the same statute, courts cannot
interpret the different terms to have the same meaning. Densley v. Dep’t of Ret. Sys., 162 Wn.2d
210, 219, 173 P.3d 885 (2007); see also Simpson Inv. Co. v. Dep’t of Revenue, 141 Wn.2d 139,
160, 3 P.3d 741 (2000) (“[W]hen ‘different words are used in the same statute, it is presumed that
a different meaning was intended to attach to each word.’” (quoting State ex rel. Pub. Disclosure
Comm’n v. Rains, 87 Wn.2d 626, 634, 555 P.2d 1368 (1976))). In addition, “[i]t is an axiom of
statutory interpretation that where a term is defined we will use that definition.” United States v.
Hoffman, 154 Wn.2d 730, 741, 116 P.3d 999 (2005).
Here, RCW 77.115.010(2) directs the reader to RCW 15.85.020 for definitions of the terms
“aquatic farmers” and “private sector cultured aquatic products.” RCW 15.85.020 also separately
defines “aquaculture.” These terms must therefore be construed with respect with to their distinct
meanings as defined under RCW 15.85.020. See Densley, 162 Wn.2d at 219; Hoffman, 154 Wn.2d
at 741. Equating a limitation on WDFW’s authority to regulate aquatic farmers as necessarily
extending to any aquaculture processes that an aquatic farmer engages in would obscure the
separateness of these terms.
Moreover, we must interpret the legislature’s omission of the term “aquaculture” in RCW
77.115.010(2) as intentional. Under the expressio unius est exclusio alterius canon of statutory
interpretation, “‘[w]here a statute specifically designates the things or classes of things upon which
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No. 52906-8-II
it operates, an inference arises in law that all things or classes of things omitted from it were
intentionally omitted by the legislature.’” Magney v. Truc Pham, 195 Wn.2d 795, 803, 466 P.3d
1077 (2020) (quoting Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wn.2d
94, 98, 459 P.2d 633 (1969)). Had the legislature intended to limit WDFW’s regulatory authority
for all processes involved in aquaculture in RCW 77.115.010(2), it would have included that term.
Interpreting RCW 77.115.010(2) as entirely precluding WDFW from exercising any
regulatory authority over aquatic farmers except as confined to the enumerated statutes would
render WAC 220-660-040(2)(l) invalid. Moreover, such an interpretation lacks a limiting
principle, yielding absurd results.
While stating that an HPA is not required for “[i]nstallation or maintenance of tideland and
floating private sector commercial fish and shellfish culture facilities,” WAC 220-660-040(2)(l)
also provides that an “HPA is required to construct accessory hydraulic structures, such as
bulkheads or boat ramps.” If WDFW lacks authority to regulate aquatic farmers except with
respect to the statutes enumerated under RCW 77.115.010(2), WDFW could not enforce Hydraulic
Code permitting requirements on aquatic farmers engaged in construction of accessory hydraulic
structures. WAC 220-660-040(2)(l) would thus exceed WDFW’s statutory authority.
In addition, interpreting RCW 77.115.010(2) as entirely foreclosing WDFW from
regulating aquatic farmers would produce absurd results. The attorney general opinion explained
that without a limiting principle, “WDFW could not regulate an aquatic farmer who is hunting
because the laws regulating hunting are not on the statutory list.” AR at 952. As an additional
example, WDFW would be unable to require an HPA permit for an aquatic farmer engaged in a
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No. 52906-8-II
hydraulic project on personal property rather than the farmer’s aquaculture facility because the
Hydraulic Code is not on the statutory list.
To avoid an absurd result, the attorney general opinion states that the limitations to
WDFW’s regulatory authority in RCW 77.115.010(2) must be read conjunctively as applied to
both aquatic farmers and aquatic products, rather than disjunctively. In an endnote, the attorney
general opinion expands on this reasoning, stating that therefore, an aquatic farmer who engages
in activities such as installation of a boat ramp or a dock would require an HPA permit “because
the permit regulates construction; it does not regulate aquaculture products.” Id. at 957 n.4.
We agree with the attorney general opinion’s reasoning that RCW 77.115.010(2) does not
broadly constrict WDFW’s authority to regulate any activity an aquatic farmer engages in,
irrespective of that activity’s relationship to private sector cultured aquatic products. It would,
therefore, be incorrect to interpret RCW 77.115.010(2) as proscribing WDFW from regulating the
geoduck cultivation processes at issue merely because WDFW lacks authority to regulate aquatic
farmers at all unless one of the enumerated exemptions apply.
Instead, by reading the terms conjunctively, the scope of RCW 77.115.010(2) narrows to
limit WDFW’s authority to regulate aquatic farmers when their activities relate to aquatic products.
In some instances, these activities involve cultivation of aquatic products, such as insertion of PVC
pipes and installation of netting on tidelands used in geoduck cultivation. In other instances, the
activities do not relate directly to cultivation but may involve marketing, transporting, or labeling
aquatic products. Indeed, the Aquatic Act explicitly designated to Agriculture the authority to
regulate promotion and marketing of private sector cultured aquatic products. LAWS OF 1985, ch.
457, §§ 3-5 (codified at RCW 15.85.030-.050). The Aquatic Act also removed Fisheries’ authority
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No. 52906-8-II
to require commercial licenses for delivery, processing, or wholesaling of private sector cultured
aquatic products. Id. at § 18 (former RCW 75.28.010 (1998), presently codified at RCW 77.65.010.
LAWS OF 2000, ch. 107, § 131).
ii. Plain Language of RCW 77.12.047
The validity of WAC 220-660-040(2)(l) is further supported by RCW 77.12.047(3), which
is expressly cited within the text of the regulation. Under RCW 77.12.047, the Fish and Wildlife
Commission has authority to promulgate rules “[s]pecifying and defining the gear, appliances, or
other equipment and methods that may be used to take wildlife, fish, or shellfish, and specifying
the times, places, and manner in which the equipment may be used or possessed.” RCW
77.12.047(1)(c). The Fish and Wildlife Commission, however, does not have such rulemaking
authority as applied to private sector cultured aquatic products. RCW 77.12.047(3).
Appellants’ contention that RCW 77.12.047(3) does not prevent WDFW from exercising
its authority to enforce the Hydraulic Code on aquaculture processes because the statute pertains
only to aquatic products is without merit when the statute is considered in its entirety. RCW
77.12.047 lists 15 areas within the scope of the Fish and Wildlife Commission’s rulemaking
authority and enumerates two express exemptions. While the Fish and Wildlife Commission has
authority to adopt rules regarding, for example, the “gear, appliances, or other equipment and
methods that may be used to take wildlife, fish, or shellfish,” it does not have authority to do so
with regard to private sector cultured aquatic products. RCW 77.12.047(1)(c); see also RCW
77.12.047(3).
The express exemption in RCW 77.12.047(3) thus limits the Fish and Wildlife
Commission’s authority to adopt rules that impose Hydraulic Code permitting requirements
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No. 52906-8-II
insofar as such rules would regulate “gear, appliances, or other equipment and methods” of taking
private sector cultured aquatic products. See RCW 77.12.047(1)(c). Driving PVC pipes into the
substrate and covering the pipes with netting to protect geoducks from predators are examples of
materials and methods used to take private sector cultured aquatic products. RCW 77.12.047(3)
does not, however, preclude WDFW from requiring aquatic farmers to obtain HPA permits for
projects such as construction of bulkheads, boat ramps, or similar, that do not directly involve
methods or equipment used in taking private sector cultured aquatic products.
b. Statutory Context
Appellants argue that the context of the Aquatic Act and its broader statutory scheme
illustrate further that the legislature did not intend to foreclose application of the Hydraulic Code
on aquaculture-related processes. First, Appellants argue that it defies logic to obscure a broad-
sweeping exemption to the Hydraulic Code in a statute that establishes a program for disease
control, especially because the Aquatic Act otherwise expressly exempted WDFW’s authority in
other provisions. Second, Appellants assert that because the purpose of the Aquatic Act was to
grant aquaculture the same status as other agricultural activities, exempting aquaculture from
Hydraulic Code requirements where other agricultural activities remain subject to the Hydraulic
Code would negate that purpose.
Third, Appellants claim that in adding a reference to the Hydraulic Code with regard to
mechanical clam harvesting in RCW 77.65.250, the legislature demonstrated that it did not intend
to revoke WDFW’s authority to enforce the Hydraulic Code on all aquaculture activities.
Finally, Appellants contend that because Fisheries and Game were separate entities when
the Aquatic Act was passed and the Act provisions at issue only implicated Fisheries’ authority to
23
No. 52906-8-II
enforce the Hydraulic Code, interpreting the Act to divest Fisheries of its authority would have the
absurd result of allowing Game to continue to enforce the Hydraulic Code until the agencies
merged in 1993.
WDFW asserts that the legislature did not obscure a far-reaching exemption within a
narrow, unrelated chapter but rather that it deliberately intended to limit WDFW’s regulatory
authority over aquaculture to disease control. WDFW explains that the legislature’s decision to
include an express limitation within the disease control chapter is thus consistent with that
objective.
Addressing Appellants’ claim regarding RCW 77.65.250, WDFW argues that this statute
includes products that do not always qualify as private sector cultured aquatic products. Therefore,
WDFW contends that the language referring to the Hydraulic Code in RCW 77.65.250 is
applicable only to products that do not meet the definition of private sector cultured aquatic
products.
PNA, like WDFW, asserts that the Aquatic Act did not obfuscate a broad exemption to the
Hydraulic Code but rather that the Act was designed with the express objective of narrowing
WDFW’s authority over aquaculture. PNA argues that the Aquatic Act does not elevate the
aquaculture industry over other agricultural activities because other agricultural industries are also
exempt from HPA permitting requirements for activities such as plowing, chemical application, or
use of tractors, but not for activities such as construction of culverts or bridges and stream
dredging. PNA further contends that the Aquatic Act limited Game’s authority with respect to
private sector cultured aquatic products in addition to Fisheries’ authority, thereby curtailing any
potential “absurd” result. Br. of Resp’t PNA at 24.
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No. 52906-8-II
We agree with WDFW and PNA that the statutory context reflects legislative intent to
narrow WDFW’s regulatory authority over aquaculture under the Hydraulic Code. WAC 220-660-
040(2)(l) is therefore a valid rule in that it accurately expresses the scope of WDFW’s authority to
enforce Hydraulic Code permitting requirements on aquaculture-related hydraulic projects.
First, contrary to Appellants’ assertion, the Aquatic Act did not surreptitiously insert a
sweeping exemption to the Hydraulic Code by implication within a single sentence in RCW
77.115.010(2). Instead, the Aquatic Act overtly narrowed WDFW’s regulatory authority over
aquaculture. As discussed above, in RCW 77.115.010(2), the legislature reduced WDFW’s
authority to regulate aquatic farmers and private sector cultured aquatic products to a list of
expressly enumerated statutes, and the Hydraulic Code is not among them. LAWS OF 1985, ch. 457,
§ 8. In addition, in RCW 77.12.047(3), the legislature exempted cultured aquatic products from
Commission of Fish and Wildlife’s rulemaking authority that formerly allowed it to adopt rules
regulating the times, areas, gear, methods, disposal, possession, etc., of fish and shellfish within
the state. Id. at § 17. Because the legislature’s intent was to narrow WDFW’s regulatory authority
over aquaculture, this statutory scheme reflects that the legislature elected to expressly define the
few areas over which WDFW retained its authority rather than specify the areas in which its
authority was constricted.
Second, limitations to WDFW’s authority to enforce Hydraulic Code permitting
requirements on aquaculture do not elevate aquaculture to a status above other agricultural activity.
Under WAC 220-660-040(2)(l), WDFW retains its authority to require aquatic farmers to obtain
HPA permits for “accessory” hydraulic structures but not for the activities directly associated with
the private sector cultured aquatic products themselves. Department staff have explained that
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No. 52906-8-II
regulating aquaculture in this manner “would bring our regulatory philosophy in line with how we
regulate structures on agricultural land. Where we issue HPAs for culverts, bridges, stream
dredging, water diversions but do not regulate water use, plowing, chemical application, use of
tractors or other equipment, or harvest.” CP at 544.
Third, the reference to the Hydraulic Code in RCW 77.65.250 does not demonstrate
legislative intent to allow WDFW to continue to enforce Hydraulic Code permitting requirements
on aquaculture cultivation processes. RCW 77.65.250 provides that “unless the requirements of
[the Hydraulic Code] are fulfilled for the proposed activity,” a harvest fishery license is “required
to operate a mechanical or hydraulic device for commercially harvesting clams.” Mechanical or
hydraulic devices are used in harvesting “naturally set” or wild clams and in harvesting cultivated
clams. See Clam Shacks of Am., Inc., v. Skagit County, 45 Wn. App. 346, 353, 725 P.2d 459 (1986),
aff’d, 109 Wn.2d 91, 743 P.2d 265 (1987) (describing the use of hydraulic clam rakes to harvest
clams without reseeding or culturing the clams).
Clams that are wild or naturally set only qualify as private sector cultured aquatic products
if they are also “under the active supervision and management of a private sector aquatic farmer”
at the time of setting. RCW 15.85.020(3); see also State v. Hodgson, 60 Wn. App. 12, 18, 802 P.2d
129 (1990). Therefore, when mechanical clam harvesting involves private sector cultured aquatic
products, WDFW does not have authority to enforce Hydraulic Code permitting requirements on
that activity. But for clams that do not meet the definition of private sector cultured aquatic
products, RCW 77.65.250 provides that a harvester can obtain an HPA permit in lieu of a harvest
fishery license to operate the mechanical or hydraulic harvesting device.
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No. 52906-8-II
Finally, Game’s authority over private sector cultured aquatic products was also restricted
in the Aquatic Act, nullifying any concerns over an absurd result in which one of the two agencies
retained its authority to enforce the Hydraulic Code on aquaculture. In sections 21-25 of the
Aquatic Act, the legislature revised statutes to state that game fish are not private sector cultured
aquatic products. LAWS OF 1985, ch. 457, §§ 21-25. In so doing, the Act restricted Game’s
regulatory authority over aquaculture. See id.
The Aquatic Act’s purpose was to transition aquaculture into the agricultural realm. Id. at
§ 1. Thus, the Aquatic Act removed much of WDFW’s regulatory authority over aquaculture. See
id. at §§ 17, 18, 20. Restrictions on WDFW’s authority to enforce the Hydraulic Code on
aquaculture, as provided in RCW 77.115.010(2) and RCW 77.12.047(3) fit within the broader
purpose of the Aquatic Act. Accordingly, WAC 220-660-040(2)(l) is a valid rule in that it properly
describes the scope of WDFW regulatory authority over aquaculture with respect to the language
and context of the Aquatic Act.
2. LEGISLATIVE ACQUIESCENCE
Although we hold that meanings of RCW 77.115.010(2) and RCW 77.12.047(3) are
unambiguous and we need not employ other interpretive aids, Lake, 169 Wn.2d at 526, in this
particular instance, it is worth noting that the legislature acquiesced in the attorney general’s
interpretation of the relevant statutes. “[W]e presume that the legislature is aware of formal
opinions issued by the attorney general and a failure to amend the statute in response to the formal
opinion may, in appropriate circumstances, be treated as a form of legislative acquiescence in that
interpretation.” Five Corners Family Farmers v. State, 173 Wn.2d 296, 308, 268 P.3d 892 (2011).
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No. 52906-8-II
Here, in the years after the attorney general opinion was issued, nine bills were submitted
to the legislature proposing amendments to RCW 77.115.010. See SECOND SUBSTITUTE S.B. 6086,
65th Leg., Reg. Sess. (Wash. 2018); ENGROSSED H.B. 2957, 65th Leg., Reg. Sess. (Wash. 2018);
H.B. 2859, 65th Leg., Reg. Sess. (Wash. 2018); H.B. 2260, 65th Leg., Reg. Sess. (Wash. 2018);
THIRD SUBSTITUTE H.B. 1118, 64th Leg., Reg. Sess. (Wash. 2016); ENGROSSED SECOND
SUBSTITUTE S.B. 5669, 62nd Leg., 1st Spec. Sess. (Wash. 2011); H.B. 1850, 62nd Leg., Reg. Sess.
(Wash. 2011); SUBSTITUTE S.B. 5127, 61st Leg., Reg. Sess. (Wash. 2009); and SUBSTITUTE S.B.
6053, 60th Leg., Reg. Sess. (Wash. 2007). None of these bills addressed WDFW’s authority to
enforce the Hydraulic Code on activities involved in cultivating aquaculture or otherwise
attempted to reinstate such authority.
Appellants contend, however, that because the legislature passed a bill, sponsored by
Representative Lantz, which called for a study pertaining to the environmental effects of shellfish
aquaculture after the attorney general opinion issued, the legislature indicated its objection to the
attorney general opinion’s interpretation of the relevant statutes. H.B. REP. ON SECOND
SUBSTITUTE H.B. 2220, 60th Leg., Reg. Sess. (Wash. 2007). Appellants rely on Five Corners,
where the court held that the legislature did not acquiesce in an attorney general opinion’s
interpretation of a statute when it “subsequently established a working group to review the issue.”
173 Wn.2d at 309.
Five Corners is inapposite because in that case, the working group was convened to
contend directly with the attorney general opinion’s resolution of an issue. Id. Here, in the request
letter submitted to the office of the attorney general, Representative Lantz specifically stated that
she “[did] not expect [the opinion] to draw any conclusions as to the impact of [geoduck
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No. 52906-8-II
aquaculture] practices on fish life.” CP at 533. Approval of a bill to study the environmental
impacts of shellfish aquaculture subsequent to the issuance of the attorney general opinion,
therefore, does not evince disagreement with the opinion’s conclusion that the Aquatic Act
restrained WDFW’s authority to enforce Hydraulic Code Permitting requirements on Aquaculture.
Moreover, while the house bill report references the Shoreline Management Act, ch. 90.58
RCW11 and the Department of Natural Resources’ responsibility to manage aquatic lands, the bill
report makes no reference to either the Hydraulic Code or to the Aquatic Act. The lack of reference
to either the Hydraulic Code or the Aquatic Act is telling in it shows that after the attorney general
opinion issued, the legislature focused on the Shoreline Management Act and the Department of
Ecology’s authority under that Act as a means of advancing environmental protection for activities
related to shellfish aquaculture. It does not indicate the legislature’s opposition to the opinion’s
conclusion that WDFW lacks authority to enforce the Hydraulic Code on geoduck cultivation
processes.
Taken together, the above discussion of the plain language of the relevant statutes and the
broader context of the statues reflect that WDFW lacks authority to enforce Hydraulic Code
permitting requirements on aquatic farmers when they engage in activities related to private sector
cultured aquatic products under RCW 77.115.010(2). The limitation to WDFW’s authority to
regulate private sector cultured aquatic products is further established by the restrictions on the
Commission of Fish and Wildlife’s rulemaking authority in RCW 77.12.047(3). WAC 220-660-
11
The Shoreline Management Act requires an individual to obtain a permit prior to undertaking
any “substantial development” on a Washington shoreline. RCW 90.58.140(2). The Act is
“broadly construe[d] . . . to protect the state shorelines as fully as possible.” Herman v. Shorelines
Hr’gs Bd., 149 Wn. App. 444, 459, 204 P.3d 928 (2009).
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No. 52906-8-II
040(2)(l) is thus a valid rule in that it properly carves out the extent of WDFW’s authority to
enforce Hydraulic Code permitting requirements on the geoduck cultivation processes at issue
here. Accordingly, the trial court properly dismissed Appellants’ claims arising under the APA.
II. INJUNCTIVE RELIEF
Appellants argue that because Hydraulic Code permitting requirements apply to the
geoduck cultivation practices that PNA and Taylor intend to engage in, Appellants are entitled to
injunctive relief preventing PNA and Taylor from further action on their geoduck aquaculture
facility until they obtain a Hydraulic Code permit pursuant to the UDJA, ch. 7.24 RCW.
We decline to reach this issue because, consistent with the above analysis, Hydraulic Code
permitting requirements do not apply to the challenged geoduck cultivation practices that include
installation of PVC pipes and application of netting to tidelands. Moreover, there is no evidence
that PNA or Taylor intend to construct an “accessory hydraulic structure[ ]” within the meaning
of WAC 220-660-040(2)(l). Therefore, there are no grounds for issuing injunctive relief as
requested by Appellants.
III. ATTORNEY FEES
Appellants request attorney fees under the Equal Access to Justice Act (EAJA), RCW
4.84.350(1). Through the EAJA, a qualified prevailing party is entitled to up to $25,000 in attorney
fees for each level of review. RCW 4.84.350(2). But because Appellants do not prevail in this
appeal, we hold that they are not entitled to an attorney fee award under RCW 4.84.350(1).
CONCLUSION
We hold that because the Aquatic Act limited WDFW’s authority to enforce Hydraulic
Code permitting requirements on activities directly associated with aquaculture cultivation of
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No. 52906-8-II
private sector cultured aquatic projects, WAC 220-660-040(2)(l) is a valid rule properly within the
scope of the Commission of Fish and Wildlife’s statutory rulemaking authority. As a result, we
decline to reach the merits of the Appellants’ claim for injunctive relief because under WAC 220-
660-040(2)(l), Hydraulic Code permit requirements do not apply to the activities PNA intends to
engage in on its aquaculture facility.
Accordingly, we affirm.
CRUSER, J.
We concur:
WORSWICK, P.J.
SUTTON, J.
31