WSR 01-08-075


[ Filed April 3, 2001, 1:34 p.m. ]

April 2, 2001

Francis J. Walker

Attorney at Law

2723 Hillsdale Drive

Olympia, Washington 98501

Re: Appeal of the January 16, 2001 denial by the Department of Fish and Wildlife (the "Department") of that certain Petition for Adoption, Amendment, or Repeal of a State Administrative Rule, dated June 16, 2000, filed by Kevin G. Byrd on behalf of the Association for the Protection of Hammersly, Eld & Totten Inlets (APHETI) with respect to WAC 220-77-040 and WAC 220-77-020(11) (the "Petition")

Dear Mr. Walker:

Pursuant to RCW 34.05.330(3), I have fully reviewed your appeal of the Petition. It is my policy to intervene in matters presented to me under RCW 34.05.330(3) only when I believe the administrative agency whose decision is at issue has abused its discretion or acted arbitrarily or capriciously. It is also my policy not to second-guess the thoughtful and deliberate decisions of a state agency, so long as those decisions are well founded and proper under the law. This is an extremely high standard of review.

After reviewing the record of the Department's actions and the arguments offered in your appeal, I have determined that the Department had a good-faith basis for its decision not to amend or repeal the regulations. The Department did not abuse its discretion or act arbitrarily or capriciously. Accordingly, I have denied your appeal.

Pursuant to RCW 77.12.047 and RCW 77.115.010, the Department has statutory authority to adopt rules regulating the prevention and suppression of diseases and pests affecting shellfish, and, with Department of Agriculture, to protect the aquaculture industry from aquatic diseases or maladies.

Based on that authority, the Department adopted a comprehensive group of aquaculture disease control rules (WAC 220-77). The rules include a definition of "established species" which is a species that has been propagated through aquaculture for at least ten years or a species naturally reproducing in Washington (WAC 220-77-020(11)). The rules state that "established species from existing import areas with current disease free tissue certification from areas of origin free of Class A shellfish diseases are eligible for continued importation" (WAC 220-77-040(3)).

Your argument appears to be that the Department has no authority to make this rule because it confers an exemption from disease control measures, relating to the importation of shellfish, "based solely on the time it has been commercially harvested or reproduced in Washington State."

The Department clearly has rule making authority relating to "regulating the prevention and suppression of diseases and pests affecting...shellfish" (RCW 77.12.047), and to the development of a program of disease inspection and control for aquatic farmers, and that the program may include import and transfer requirements (RCW 77.115.010).

Accordingly, the Department has created a category of aquaculture, "established species" that may be imported into Washington, provided that the imported species meet the disease control conditions specified in 220-77-040(3). The Department acted consistently with its statutory responsibilities. The determining factor in regulating a species is not time, but certification that the species in question comes from a disease free area.

For these reasons I must deny your appeal. Thank you for your extensive efforts to protect the indigenous species of marine life in Puget Sound, and your and profound commitment to the environment of our state.


Gary Locke


cc: Dennis W. Cooper, Code Reviser

Tim Martin, Co-Chief Clerk, House of Representatives

Cindy Zehnder, Co-Chief Clerk, House of Representatives

Tony Cook, Secretary of the Senate

Jeff Koenigs, Department of Fish and Wildlife

Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office