American Waterways v. Department Of Ecology, No. 51547-4-II

• Court: Court of Appeals of Washington
• Writing for the Court: Worswick, J.
• Citation: 435 P.3d 856,7 Wash.App.2d 808
• Parties: The AMERICAN WATERWAYS OPERATORS; Cruise Lines International Association - North West & Canada; Northwest Marine Trade Association ; Recreational Boating Association of Washington and Uncruise Adventures, Respondents, v. DEPARTMENT OF ECOLOGY, Appellant
• Decision Date: 05 March 2019
• Docket Number: No. 51547-4-II

7 Wash.App.2d 808
435 P.3d 856

The AMERICAN WATERWAYS OPERATORS; Cruise Lines International Association - North West & Canada; Northwest Marine Trade Association ; Recreational Boating Association of Washington and Uncruise Adventures, Respondents,
v.
DEPARTMENT OF ECOLOGY, Appellant,

No. 51547-4-II

Court of Appeals of Washington, Division 2.

Filed March 5, 2019

Ronald L. Lavigne Jr., Attorney General Office/Ecology Division, Po Box 40117, Olympia, WA, 98504-0117, for Appellant.

James A. Tupper Jr., Lynne Michele Cohee, Tupper Mack Wells PLLC, 2025 1st Ave. Ste. 1100, Seattle, WA, 98121-2100, for Respondent.

Dionne Padilla-Huddleston, Office of the Attorney General, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Other Parties.

PUBLISHED OPINION

Worswick, J.

7 Wash.App.2d 810

¶1 This appeal arises from the Washington State Department of Ecology’s application to the United States Environmental Protection Agency (EPA) for permission

7 Wash.App.2d 811

to engage in rule making to prohibit marine vessel sewage discharge into Puget Sound. A section of Ecology’s application was entitled "Certificate of Need," and claimed that Puget Sound required greater environmental protections than the federal standards provided.

¶2 The American Waterways Operators (the Operators) appealed the Certificate of Need to the Pollution Control Hearings Board. Ecology moved to dismiss the appeal, arguing that the Board did not have jurisdiction over the Certificate of Need. The Board agreed, and dismissed the appeal. The Operators appealed to the superior court and the superior court reversed the Board’s order of dismissal. Ecology appealed from the superior court’s decision reversing the Board.

¶3 We hold that the Board did not have jurisdiction to hear the Operators’ appeal of the Petition’s Certificate of Need. Accordingly, we reverse the superior court and affirm the Board’s order dismissing the Operators’ appeal.

FACTS

¶4 In 2016, Ecology sought to prohibit sewage discharge from all marine vessels in Puget Sound. Before a state agency can engage in rule making of this type, the agency must secure permission from the EPA. 33 U.S.C. § 1322(f)(3) ; 40 C.F.R. § 140.4. To obtain a complete prohibition of sewage discharge from vessels, the EPA requires an application that includes a "certification that the protection and enhancement of the waters described in the petition require greater environmental protection than the applicable Federal standard." 40 C.F.R. § 140.4.

¶5 Ecology filed a petition (the Petition) with the EPA for permission to regulate sewage discharge from vessels and designate Puget Sound as a "No Discharge Zone". Administrative Record (AR) at 7. The Petition included a required section entitled "Certificate of Need," explaining why Puget Sound required environmental protections greater than the federal standard.

7 Wash.App.2d 812

¶6 After Ecology submitted the Petition to the EPA, the Operators appealed only the Petition’s Certificate of Need to the Board. The Operators alleged that Ecology failed to establish that Puget Sound required greater environmental protection, and failed to provide a scientific or technical basis for its determination that Puget Sound required greater protections than the federal standards provided. The Operators did not appeal the application as a whole.

¶7 Ecology moved to dismiss the Operators’ appeal, arguing that the Board did not have jurisdiction over the Petition’s Certificate of Need.¹ The Operators argued that because the Petition’s Certificate of Need was a "certificate," the Board has jurisdiction to hear their appeal under RCW 43.21B.110(1)(d). AR at 403.

435 P.3d 859

¶8 The Board granted Ecology’s motion to dismiss, finding that "certificate" as used in RCW 43.21B.110 is "akin to licenses and permits, which provide an authorization to an applicant that is required by law for the applicant to proceed with an activity." AR at 720. In contrast, the Board found that the "EPA’s use of the word ‘certificate’ in its regulations to describe the items required in a Petition for a [no-discharge zone] from a state [was] not determinative of the Board’s jurisdiction." AR at 719.

¶9 The Board noted that Washington had discretion under the Clean Water Act (CWA)² to determine that it wants to protect its waters at a higher level than the federal standards provide. Consequently, the Board ruled that the Petition and its Certificate of Need was a discretionary act over which the superior court, not the Board, has jurisdiction.

7 Wash.App.2d 813

¶10 In the meantime, the EPA granted Ecology’s application for permission to engage in rule making and designate Puget Sound a no-discharge zone. Washington State Department of Ecology Prohibition of Discharges of Vessel Sewage; Final Affirmative Determination, 82 Fed. Reg. 11218 (Feb. 21, 2017).³ The EPA’s decision stated:

This determination does not itself constitute the designation of a no-discharge zone, rather, the State of Washington may now in its discretion finalize its proposed designation in accordance with state law and take the steps it deems appropriate to implement and enforce the discharge prohibition.

82 Fed. Reg. at 11218-19. Since then, Ecology proceeded with its rule making process and enacted rules regarding sewage discharge in Puget Sound. See WAC 173-228-010 to - 060.

¶11 The Operators appealed the Board’s order of dismissal to the superior court. The superior court reversed the Board’s order dismissing the Operators appeal. Ecology appeals.⁴

ANALYSIS

¶12 The Operators argue that the Board erred by ruling that it lacked jurisdiction over their appeal of the Petition’s Certificate of Need. Specifically, they argue that the Board (1) has jurisdiction because RCW 43.21B.110(1)(d) grants the Board jurisdiction over "certificates," (2) has heard other appeals over certificates issued by Ecology related to § 401 of the CWA and to the Coastal Zone Management Act (CZMA),⁵ (3) relied on inapplicable authority, (4) is the only available forum to review the Certificate of Need, and (5) erred by finding that there are no objective standards for reviewing "Ecology’s actions." Br. of Resp’t at 29.

7 Wash.App.2d 814

¶13 The Board’s power to hear appeals is limited to adjudication—that is, resolving the specific rights of a specific person or persons. Because the portion of the Petition under the heading Certificate of Need does not address the specific rights of specific persons, it does not fall within the Board’s jurisdiction. Consequently, the Board correctly dismissed the Operators’ appeal.⁶

A. Legal Background—Clean Water Act & Vessel Discharge

¶14 The CWA prohibits states from adopting or enforcing regulations related to sewage

435 P.3d 860

discharge from vessels. 33 USC § 1322 (f)(1)(A). A state may, however, prohibit vessels from discharging sewage if the state "determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection" and the EPA determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available.⁷ 33 USC § 1322(f)(3). To prohibit discharge, the state must apply to the EPA for permission. 33 USC § 1322(f)(3) ; 40 CFR § 140.4.

¶15 40 C.F.R. § 140.4 implements 33 USC § 1322(f)(3), and provides the requirements for the state’s application. A state’s application must include the following:

(1) A certification that the protection and enhancement of the waters described in the petition require greater environmental protection than the applicable Federal standard;

7 Wash.App.2d 815

(2) A map showing the location of commercial and recreational pump-out facilities;

(3) A description of the location of pump-out facilities within waters designated for no discharge;

(4) The general schedule of operating hours of the pump-out facilities;

(5) The draught requirements on vessels that may be excluded because of insufficient water depth adjacent to the facility;

(6) Information indicating that treatment of wastes from such pump-out facilities is in conformance with Federal law; and

(7) Information on vessel population and vessel usage of the subject waters.

40 C.F.R. § 140.4.

¶16 Upon receipt of a state’s application, the EPA is tasked with evaluating the reasonable availability of pump-out facilities. 40 CFR § 140.4. The EPA does not "review a State’s findings or substitute its judgment for that of a petitioning State regarding the need for greater environmental protection." Br. of Appellant (Dep’t of Ecology) at 7.⁸

B. Board’s Adjudicative Authority

¶17 The Operators argue that the Board has jurisdiction to hear their appeal of the Petition’s Certificate of Need because RCW 43.21B.110(1)(d) provides jurisdiction over appeals of...