Washington court upholds state’s way to measure PCBs

A U.S. flag waves atop the Temple of Justice in Olympia, where the Washington Supreme Court will hear oral arguments in a case that will decide whether piece-rate farmworkers must be paid separately for non-picking tasks. Washington Attorney General Bob Ferguson argues the court should mandate separate pay.

The Washington Supreme Court last week greatly expanded the power of the state’s Department of Fish and Wildlife to regulate construction far from the water’s edge in the name of protecting fish.

We agree with critics who say the court has handed the department unlimited authority that will trample private property rights.

The court unanimously ruled last week against five counties that had sued the department. Plaintiffs alleged Fish and Wildlife had overstepped its authority by requiring local governments to get permits from the agency to build and maintain bridges that span but do not touch water.

Counties argued the rules unlawfully extended Fish and Wildlife’s authority beyond the water’s edge. The counties argued that the rules could justify stopping projects based on considerations such as climate change. The counties said they didn’t want to have to obtain a permit from Fish and Wildlife every time they repaved a bridge, repaired a guardrail or repainted white lines.

But Fish and Wildlife argued that when the Legislature passed the state’s Hydraulic Code 75 years ago that it gave the department authority to police construction to protect fish habitat.

The court agreed, and in the process it stretched the common use of the English language to new limits.

Writing for the court, Justice Susan Owens said Fish and Wildlife can require permits for upland projects and doesn’t have to be absolutely certain the project will affect fish, only reasonably certain.

Owens reached her conclusion by employing a novel new interpretation of a key word in the original law. The code gives Fish and Wildlife authority over projects that “will” alter waterways. Owens says the word “will” — which in normal usage signifies an inescapable certainty — is synonymous with “may” — the expression of a mere possibility.

“And we defer to the department’s expertise in determining which projects meet that standard,” she wrote.

While her colleagues quibbled with Owens’ tortured linguistics, they nonetheless agreed with her conclusion.

“The jurisdiction has become unlimited,” Citizens Alliance for Property Rights lobbyist Cindy Alia said. “Fish and Wildlife’s jurisdiction can go clear to the mountaintop.”

Past attempts to get the Legislature to limit the department’s authority to projects that actually touch water have gone nowhere, and those who would like to see changes made see little chance that it will happen.

That’s too bad. The problem with legislative bodies, both state and federal, is that they too often leave too much of the detail work to the unelected and largely unaccountable administrative state. Even the most benign of bureaucrats can’t resist the urge to expand its authority. The list of projects that “may” impact fish, as determined by the department’s expertise, is incalculable.

Unrestricted authority in the hands of the bureaucracy is a recipe for tyranny.

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