WSDOT's Response to Hearing Examiner on Condition of Approval #5
WSDOT's%20Response%20to%20Hearing%20Examiner%20on%20Condition%20of%20Approval%20%235_files/filelist.xml
WSDOT's%20Response%20to%20Hearing%20Examiner%20on%20Condition%20of%20Approval%20%235_files/editdata.mso
[if !mso]> <style> v\:* {behavior:url(#default#VML);} o\:* {behavior:url(#default#VML);} w\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
WSDOT's%20Response%20to%20Hearing%20Examiner%20on%20Condition%20of%20Approval%20%235_files/themedata.thmx
WSDOT's%20Response%20to%20Hearing%20Examiner%20on%20Condition%20of%20Approval%20%235_files/colorschememapping.xml 0 false false false EN-US X-NONE
X-NONE MicrosoftInternetExplorer4
[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes;
mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan
; font-size:10.0pt; font-family:"Times New Roman","serif";} </style> <![endif]
From: Glas, Brian [GlasB@wsdot.wa.gov]
Sent: Friday, April 09, 2010 10:57 AM
To: Matt Herrera
Cc: Hanson, Allison; Nebbitt, Bruce; Turck, Jason; Ritchotte, George; Dean, Brigid
Subject: WSDOT's Response to Hearing Examiner on Condition of Approval #5
Matt,
Please forward on WSDOT’s response to the hearing examiner’s request for additional justification on why WSDOT believes it is exempt from condition #5. You did a great job at the
hearing providing background on the scope of the project. Thanks for all of your efforts in working with us on the critical area ordinance. Glad we could come to agreement on all
of the other conditions of approval.
Thanks,
Brian Glas
WSDOT Triangle Design 999 3rd Ave. #2424 Seattle, WA 98104
+ MS NB82-230
( (206) 357-6278
email:
mailto:glasb@wsdot.wa.govmailto:glasb@wsdot.wa.gov
Thank you for reviewing and considering WSDOT’s position that it is exempt from obtaining City of Federal Way’s engineering permit. At the April 7, 2010 meeting with the hearing
examiner, City of Federal Way staff stated that they believed that Federal Way had the authority to inspect WSDOT erosion control measures at the Corrington mitigation site to ensure
compliance with the City’s code. Clearing and grading activities, including erosion control measures, on WSDOT projects are already regulated by the Washington State Department of
Ecology through the issuance of the National Pollutant Discharge Elimination System (NPDES) permit dated February 4, 2009. This permit ensures compliance with the Federal Clean
Water Act. The Department of Ecology was granted the authority to administer the Federal Clean Water act by RCW 90.48.260. WSDOT believes sections 1.1 and 1.5 of the Stormwater
Management Program Plan of this permit are relevant to this issue:
1.1 Introduction
On February 4, 2009, the Washington State Department of Ecology issued a National Pollutant Discharge Elimination System (NPDES) Municipal Stormwater and State Waste Discharge Permit
to the Washington State Department of Transportation (WSDOT) to regulate discharges from municipal separate storm sewers on WSDOT highways and facilities. This Permit addresses all
WSDOT highways and related facilities within the applicable areas requiring permit coverage by Ecology.
1.5 Local/Area Specific Requirements
In most instances, local stormwater management standards will not override the requirements in the Highway Runoff Manual. The Revise Code of Washington (RCW) 47.01.260(1) grants WSDOT
plenary power in planning, locating, designing, constructing, improving, repairing, operating, and maintaining state highways, including drainage facilities and channel changes necessary
for the protection of such highways. This grant of authority means that, absent express legislative direction, WSDOT is not subject to local ordinances in areas within WSDOT's purview.
The following are major local/area specific requirements that WSDOT will comply with through coordination with this SWMP.
WSDOT believes this permit supersedes the City of Federal Way’s code. Below is some information from Deborah Cade of the Washington State Attorney General’s office that sites specific
state statues and court decisions WSDOT believes are also relevant to this issue.
There is a statute -- RCW 47.01.260 -- that says that WSDOT shall
"exercise all the powers and perform all the duties necessary,
convenient, or incidental to the planning, locating, designing,
constructing, improving, repairing, operating, and maintaining state
highways, including bridges and other structures, culverts, and drainage
facilities and channel changes necessary for the protection of state
highways".
The Washington Supreme Court has held that that based on this language,
local agencies do not have regulatory authority over state highways. In
Deaconess Hosp. v. Highway Comm'n, 66 Wn.2d 378, 393, 403 P.2d 54
(1965), the court recognized that the Highway Commission (now Department
of Transportation) through its state officers was the only agency
authorized to carry out the state's sovereign power to build and
maintain a state highway system. It stated: "We know of no other
agency or public officers having this power or duty. See RCW, title 47.
The state has thus, for the time being, vested in the Highway
Commission, the director and officers, its sovereign authority to build
and maintain highways. . . . And, it is the state which will become the
owner and wield exclusive jurisdiction over the right of way against
everyone except the United States." Id.
In 1977, and the legislature enacted RCW 47.01.031, creating the state
department of transportation (WSDOT) as the successor agency to the
Department of Highways and the State Highway Commission, and vesting in
that state agency:
All powers, duties, and functions vested by law in the
department of highways, the state highway commission, the director of
highways, the Washington toll bridge authority, the aeronautics
commission, the director of aeronautics, and the canal commission,
planning and community affairs agency, are transferred to the
jurisdiction of the department, except those powers, duties, and
functions which are expressly directed elsewhere in this or in any other
act of the 1977 legislature.
RCW 47.01.031 (emphasis added). Unless power to regulate state highways
has been expressly granted to another entity by an act of the
Legislature, the WSDOT has jurisdiction over state highways. The key
word here is "expressly;" regulatory authority cannot be simply implied.
The Washington Supreme Court also held in Seattle Bldg. and Const.
Trades Council v. City of Seattle that the WSDOT has plenary control
over the design of a limited access highway, and a city has only the
rights set out in the limited access statute. 94 Wash.2d 740, 620 P.2d
82 (1980). The limited access statute sets out the only process under
which the local agency can participate in the design process. The court
noted that the City has no authority to legislate regarding the location
and construction of state limited access facilities. "The City cannot
ban the construction of such facilities, nor can it rightly refuse to
cooperate with the State in such construction, once a plan has been
adopted."
The City of Federal Way is attempting to interpret its building code in
a manner that would allow the city to refuse to allow the siting of part
of the highway project. Nothing in state law gives it that authority.
Nor does the City have authority to direct WSDOT's compliance with
WSDOT's own design standards and standard specifications, or to
interfere with WSDOT's management of its own construction contracts. RCW
47.01.260 gives WSDOT sole authority over the highway design and
construction. This statutory language cannot be harmonized with City
authority to interpret State design standards and State standard
specifications, and it therefore pre-empts any attempt by the City to
assert that authority.
Thank you again for considering and reviewing our justification. WSDOT looks forward to hearing your decision.