* City of Tacoma v. Dep't of Ecology

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1
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CITY OF TACOMA, BIRCH BAY
WATER AND SEWER DISTRICT,
KITSAP COUNTY, SOUTWEST
SUBURBAN SEWER DISTRICT, and
ALDERWOOD WATER &
WASTEWATER DISTRICT,
Municipal Corporations and Political
Subdivisions of the State of
Washington,
Respondents,
v.
STATE OF WASHINGTON,
DEPARTMENT OF ECOLOGY,
Petitioner.
No. 102479-7
En Banc
Filed: September 5, 2024
WHITENER, J.— Puget Sound is polluted, and the pollutant in question is
nitrogen. Even though nitrogen is a nutrient, too much nitrogen can have disastrous
consequences for marine life. After a study was done on nutrient pollution in Puget
Sound, Washington State Department of Ecology (Ecology) concluded that the most
likely sources of human produced nitrogen are wastewater treatment plants. Under
federal and state laws, wastewater treatment plants may not discharge pollutants into
waters without a permit from Ecology. The Northwest Environmental Advocates
(NWEA) petitioned Ecology to include nitrogen discharge limits in their regulations.
FILE
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
SEPTEMBER 5, 2024
THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
SEPTEMBER 5, 2024
SARAH R. PENDLETON
ACTING SUPREME COURT CLERK

City of Tacoma v. Dep’t of Ecology, No. 102479-7
2
Ecology denied NWEA’s petition, and in the denial letter, Ecology made a
commitment to NWEA that it “will, through the individual permitting process …
[s]et nutrient loading limits at current levels from all permitted dischargers in Puget
Sound….” Clerk’s Papers (CP) at 127. Subsequently, Ecology issued permits to
wastewater treatment plants that capped nitrogen discharges at varying levels.
At issue in this case is whether the commitment Ecology made to NWEA is a
“rule” for purposes of the Administrative Procedure Act (APA) as defined by RCW
34.05.010(16). If it is a “rule,” the respondents ask that we declare the “rule” invalid
because 	it 	“was 	adopted 	without 	compliance 	with 	statutory 	rule-making
procedures.” 	RCW 	34.05.570(2)(c). 	The 	respondents 	are 	a 	grouping 	of
municipalities and special purpose districts that operate wastewater treatment plants
that discharge into Puget Sound. They jointly petitioned the superior court for
judicial review of the commitment in the denial letter. The superior court and Court
of Appeals both held that Ecology’s commitment in the denial letter amounted to a
“rule” under the APA. Both courts found it was adopted without statutory rule-
making procedures and both courts invalidated it.
One of two necessary conditions of a “rule” is that the agency action is a
directive 	of 	“general 	applicability.” 	RCW 	34.05.010(16). 	We 	conclude 	that
Ecology’s actions following the denial letter show that the commitment in the denial

City of Tacoma v. Dep’t of Ecology, No. 102479-7
3
letter is not a directive of “general applicability,” and therefore it is not a “rule” for
the purposes of the APA. Accordingly, we reverse the Court of Appeals and remand
to the superior court for any further proceedings that may be necessary.
FACTUAL AND PROCEDURAL HISTORY
Although nitrogen is a naturally occurring nutrient, it is also a pollutant, as
too much of it in our waters starts a cascading event called eutrophication that is
destructive for aquatic life. Eutrophication is when too much nitrogen helps grow
too much algae, then too much algae creates too much carbon, and ultimately too
much carbon depletes the water of too much oxygen. Oxygen is necessary for marine
life to thrive, and its depletion has disastrous consequences for aquatic ecosystems.
To identify possible sources of human introduced nitrogen in Puget Sound,
Ecology used a “peer-reviewed, state-of-the-science computer modeling tool” called
the Salish Sea1 Model (SSM). CP at 33. In January 2019, Ecology published a report
called the Bounding Scenarios Report (BSR). The report contained Ecology’s
findings from the SSM. The report’s authors found that 20 percent of Puget Sound
“does not meet [Washington State’s] dissolved oxygen standards.” CP at 35, 108.
1 Puget Sound is the southern portion of a greater body of water called the Salish Sea, which spans from southwest
British Columbia, Canada to northwest Washington State. In addition to Puget Sound, the Salish Sea includes the
Strait of Georgia and the Strait of Juan de Fuca.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
4
The report concluded that the most likely sources of human produced nitrogen in
Puget Sound are wastewater treatment plants. The report covered only the 79
municipal wastewater treatment plants that discharge directly into the Washington
portion of the Salish Sea.
Wastewater treatment plants treat water in stages: primary, secondary, and
tertiary treatment. U.S. ENVT ’L PROT . AGENCY, HOW WASTEWATER TREATMENT
WORKS 	... 	THE 	BASICS 	(EPA 	833-F-98-002) 	(May 	1998),
https://www3.epa.gov/npdes/pubs/bastre.pdf 	[https://perma.cc/4K46-3REV].
Primary treatment consists of removing large solids by capturing them through a
series of screens or letting them sink and capturing them with the help of gravity. Id.
Secondary treatment involves removing the majority of organic matter from the
wastewater through techniques such as the trickling filter and the activated sludge
process. 	Id. 	Tertiary 	treatment 	can 	include 	the 	disinfection 	of 	pathogenic
microorganisms and viruses but also, most important for this case, the removal of
nutrients such as nitrogen. COMM . ON USE OF TREATED MUN. WASTEWATER
EFFLUENTS & SLUDGE IN PROD. OF CROPS FOR HUM . CONSUMPTION, NAT ’L RES.
COUNCIL, USE OF R ECLAIMED WATER AND SLUDGE IN FOOD CROP PRODUCTION
(1996). Not all wastewater treatment plants engage in tertiary treatment.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
5
With the passage of the Federal Water Pollution Control Act of 1972 (Clean
Water Act), Congress sought to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Clear Water
Act created the “National Pollutant Discharge Elimination System (NPDES),”
making it unlawful to discharge pollutants without an NPDES permit. See 33 U.S.C.
§ 1342. The issuance of NPDES permits is delegated to the states. 33 U.S.C. §
1342(b). Ecology is designated as the “state water pollution control agency for all
purposes of the federal clean water act.” RCW 90.48.260, .520. With the exception
of federally owned facilities and tribal lands, which remain under the purview of the
federal Environmental Protection Agency (EPA), Ecology has been delegated
authority to issue NPDES permits in Washington State. 	Washington NPDES
Permits, 	U.S. 	ENVT ’L 	PROT . 	AGENCY, 	https://www.epa.gov/npdes-
permits/washington-npdes-permits [https://perma.cc/BX4M-ZQ7Z]. When issuing
an NPDES permit, Ecology must ensure that “all wastes … proposed for entry into
said waters shall be provided with all known, available, and reasonable methods of
treatment prior to entry.” RCW 90.54.020(3)(b) (emphasis added). This requirement
is also known as AKART. WAC 173-201A-020. Ecology must also consider the
permit “applicant’s operations” when making permit conditions. RCW 90.48.520.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
6
On November 18, 2018, NWEA petitioned Ecology to require tertiary
treatment, including the removal of nutrients such as nitrogen, in Ecology’s
calculation of what constitutes AKART. CP at 126. Under the APA, the agency must
respond to a rule petition within 60 days with a denial or initiation of rule-making
proceedings. RCW 34.05.330(1). If the petition is denied, the agency must state the
reasons for the denial and “where appropriate … the alternative means by which it
will address the concerns raised by the petitioner.” RCW 34.05.330(1)(a)(ii). Within
60 days, Ecology sent NWEA a letter denying their petition. Justifying its denial,
Ecology wrote,
Treatment technology must be both economically and technically
feasible in order to be AKART. Currently, the Environmental Agency
is 	conducting 	a 	nationwide 	Public[]ly 	Owned 	Treatment 	Works
(POTW) nutrient survey, in part because enhanced treatment for
nutrient removal is neither affordable nor necessary for all wastewater
treatment plants.
CP at 127. Ecology then gave several alternative means by which it would address
NWEA’s concerns about “increased nutrient loading,” including a commitment that
Ecology will, through the individual permitting process:
1. Set nutrient loading limits at current levels from all permitted
dischargers in Puget Sound and its key tributaries to prevent
increases in loading that would continue to contribute to Puget
Sound’s impaired status.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
7
Id. NWEA appealed their petition’s denial, which was affirmed by both the superior
court and the Court of Appeals.2
As NPDES permits for wastewater treatment plants came up for renewal after
the 	denial 	letter, 	Ecology 	began 	to 	include 	nitrogen 	discharge 	limits 	and
requirements for nitrogen reduction plans in some permits. For Birch Bay Water and
Sewer District (Birch Bay), three years of nitrogen monitoring data was considered
when it was given an annual discharging limit of 74,900 pounds of nitrogen in its
permit. For Big Lake Wastewater Treatment Plant (Big Lake), a 2014 upgrade from
a rotating biological contactor to a membrane bioreactor, allowing for the removal
of nitrogen, was considered when it was given an annual discharging limit of 10,658
pounds of nitrogen in its permit. Ecology also created a general permit that sorted
58 wastewater treatment plants into three tiers, “dominant,” “moderate,” and
“small,” based on the amount of nitrogen they annually discharged. Only 27
wastewater treatment plants, those placed in the “dominant” and “moderate” tiers,
had annual nitrogen discharge limits placed on them.
2 Before the second division of the Court of Appeals, NWEA argued that because tertiary treatment is now more easily
available, Ecology’s refusal to include tertiary treatment within its regulatory definition of AKART violates Ecology’s
statutory duties. Nw. Env’t Advocs. v. Dep’t of Ecology, No. 54810-1-II, slip op. at 12 (Wash. Ct. App. June 22, 2021)
(unpublished), 	https://www.courts.wa.gov/opinions/pdf/D2%2054810-1-II%20Unpublished%20Opinion.pdf. 	The
appellate court agreed with Ecology and held that state law concerning AKART does not require Ecology to revisit
its regulations when new treatments are reasonably available, state law concerning AKART simply requires Ecology
to make a case-by-case determination of what is reasonable for each permit applicant when issuing their permit. Id. at
12-14.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
8
The commitment in the denial letter concerned municipalities because the
population growth and the corresponding growth in development would necessitate
more 	wastewater 	treatment, 	which 	would 	ultimately 	lead 	to 	more 	nitrogen
discharging into Puget Sound. In response to the commitment in the denial letter, the
city of Tacoma began putting clauses into new building permits giving the city the
right to rescind building permits “in the event that the Department of Ecology limits
or restricts the City’s then-currently available wastewater treatment capacity through
a total inorganic nitrogen load cap … and the City determines that, as a result of
these new requirements, capacity is not available for this project.” CP at 991.
The city of Tacoma, Birch Bay Water & Sewer District, Kitsap County,
Southwest Suburban Sewer District, and Alderwood Water & Wastewater District
(Respondents) filed a petition for judicial review and declaratory judgment in
Thurston County Superior Court. Respondents alleged that Ecology unlawfully
promulgated rules in violation of the APA with the denial letter and in portions of
the BSR. The superior court agreed with the Respondents and held that Ecology
adopted these rules in “violation of the procedural requirements for rulemaking
under the [APA]” and that “Ecology may not use annual TIN [total inorganic
nitrogen] loading limits on all municipal wastewater treatment plants discharging to

City of Tacoma v. Dep’t of Ecology, No. 102479-7
9
Puget Sound in reviewing and conditioning general or individual … permits without
complying with statutory rulemaking procedures.” CP at 1482-83.
Ecology appealed the superior court’s decision. Division Three of the Court
of Appeals reversed the superior court in part and affirmed it in part. City of Tacoma
v. Depʼt of Ecology, 28 Wn. App. 2d 221, 251, 535 P.3d 462 (2023). Reversing the
superior court, the Court of Appeals held that the challenged portions of the BSR
did not establish a “rule” under the APA, as they were not a “directive,” nor did it
“impel one to act”; rather, they were simply explanations as to how the report’s
“authors reported their results” and “conclusions” of their study. Id. at 238-39, 243.
However, affirming the superior court, the Court of Appeals held that “Ecology’s
commitments in the denial letter and subsequent actions show it has adopted rules
in violation of the APA.” Id. at 243 (italics omitted). The appellate court further
concluded that the individual permits for Birch Bay and Big Lake, as well as the
general permit3 were unlawful as they relied on the commitment in the denial letter.
Id. at 251.
Ecology appealed the Court of Appeals’ decision. At issue here is whether
Ecology’s commitment in its denial letter to NWEA to cap “nutrient loading limits
3 The appellate court made this finding about the general permit despite it being in a pending action before the Pollution
Control Hearings Board.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
10
at current levels” for “all permitted dischargers” “through the individual permitting
process” established a “rule” under the APA as defined by RCW 34.05.010(16). CP
at 127.
ANALYSIS
The agency action that the Respondents argue is a “rule” as defined by RCW
34.05.010(16) is this portion of the denial letter:
Ecology will, through the individual permitting process …
… [s]et nutrient loading limits at current levels from all permitted
dischargers in Puget Sound and its key tributaries to prevent increases
in loading that would continue to contribute to Puget Sound’s impaired
status.
CP at 127. Whether an agency action is a “rule” under the APA as defined by RCW
34.05.010(16) is a question of statutory interpretation, which this court reviews de
novo. Nw. Pulp & Paper Assʼn v. Depʼt of Ecology, 200 Wn.2d 666, 672, 520 P.3d
985 (2022) (citing Depʼt of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43
P.3d 4 (2002)). “Rules” are invalid unless adopted in compliance with the APA’s
rule making procedures. 	Id.; RCW 34.05.570(2)(c). Those procedures include
providing the public with notice of the proposed rule and an opportunity to comment
on the proposed rule. Nw. Pulp & Paper Ass’n, 200 Wn.2d at 672; RCW 34.05.320,
.325. RCW 34.05.010(16) defines a “rule” as

City of Tacoma v. Dep’t of Ecology, No. 102479-7
11
any agency order, directive, or regulation of general applicability (a)
the violation of which subjects a person to a penalty or administrative
sanction; (b) which establishes, alters, or revokes any procedure,
practice, 	or 	requirement 	relating 	to 	agency 	hearings; 	(c) 	which
establishes, alters, or revokes any qualification or requirement relating
to the enjoyment of benefits or privileges conferred by law; (d) which
establishes, alters, or revokes any qualifications or standards for the
issuance, 	suspension, 	or 	revocation 	of 	licenses 	to 	pursue 	any
commercial activity, trade, or profession; or (e) which establishes,
alters, or revokes any mandatory standards for any product or material
which must be met before distribution or sale.
Accordingly, whether an agency action is a “rule” under the APA requires
establishing two elements or necessary conditions. Nw. Pulp & Paper Assʼn, 200
Wn.2d at 672. First, the agency action must be an “‘order, directive, or regulation of
general applicability.’” Id. (quoting RCW 34.05.010(16)). Second, the agency action
must fall within at least one of the five enumerated categories listed in RCW
34.05.010(16)(a)-(e). Id. at 672-73. Ecology argues that the commitment in the
denial letter is not a “rule” as defined by RCW 34.05.010(16) because it does not
satisfy 	either 	of 	the 	two 	necessary 	conditions. 	Respondents 	argue 	that 	the
commitment in the denial letter is a “rule” as defined by RCW 34.05.010(16)
because it is a “directive … of general applicability” and it fits within two of the five
enumerated categories, specifically RCW 34.05.010(16)(a) and (c).
Whether an agency action constitutes an “order, directive, or regulation of
general 	applicability,” the first 	necessary condition 	of a “rule” under RCW

City of Tacoma v. Dep’t of Ecology, No. 102479-7
12
34.05.010(16) turns on whether the agency action (1) allows staff to exercise
discretion, (2) provides for case-by-case analysis of variables rather than uniform
application of a standard, and (3) is not binding on those regulated. Nw. Pulp &
Paper Assʼn, 200 Wn.2d at 673. If this is so, then the agency action is not an “order,
directive, or regulation of general applicability.” Id.
The appellate court found that Ecology’s statements in the denial letter were
commitments to NWEA, and Ecology’s subsequent actions, specifically the two
individual permits and general permit, did not allow staff to exercise discretion or
provide for a case-by-case analysis. City of Tacoma, 28 Wn. App. 2d at 248.
“Ecology directed its staff to include new requirements in both the individual permits
and 	the 	general 	permit. 	The 	record 	indicates 	these 	requirements 	were
nondiscretionary and were part and parcel of the commitments Ecology made to
NWEA.” Id.
The heart of the disagreement between the parties and the lower courts is how
the instant case relates to our holdings in three different cases: Simpson Tacoma
Kraft Co. v. Department of Ecology, 119 Wn.2d 640, 835 P.2d 1030 (1992), Failorʼs
Pharmacy v. Department of Social and Health Services, 125 Wn.2d 488, 886 P.2d
147 (1994), and Northwest Pulp and Paper Assʼn, 200 Wn.2d 666.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
13
In Simpson Tacoma Kraft Co., the EPA had determined that pulp and paper
mills were discharging dioxin into the water. 119 Wn.2d at 643. Ecology created an
internal policy in response to the EPA’s finding, requiring staff to include a uniform
formulation of a numeric water quality standard in all NPDES permits. Id. at 644.
Ecology employees gave deposition testimony that they were bound to apply that
formula in all permits. Id. The pulp and paper mills challenged Ecology’s internal
policy, arguing that it was an unlawful “rule” that was promulgated without
following necessary rule-making procedures under the APA. Id. at 642. We agreed
and held that the agency action of Ecology’s internal policy requiring staff to place
the formula in individual permits, uniformly, constituted a directive of “general
applicability.” Id. at 648.
Similar to Simpson Tacoma Kraft Co.’s concerns about Ecology, a state
agency executing a federal program under the Clean Water Act, Failor’s Pharmacy
concerned another state agency, the Department of Social and Health Services
(DSHS), executing another federal program, Medicaid. 125 Wn.2d at 491. DSHS
was to provide pharmacies reimbursements for services rendered under Medicaid.
Id. The methodology for reimbursement described in the WAC followed federal
mandates and was based on the cost of drug ingredients and a dispensing fee. Id.
Later, DSHS created an internal policy that changed the reimbursement rates for

City of Tacoma v. Dep’t of Ecology, No. 102479-7
14
pharmacies into a three-tiered system sorted by the number of prescriptions
pharmacies dispensed per year: 35,000 prescriptions or more a year, 15,000 to
35,000 per year, and fewer than 15,000 per year. Id. at 492. We found that the agency
action of DSHS’s new internal policy changing the reimbursement rates were
“uniformly applied to all members of the class of Medicaid prescription providers”
and “constitute[d] additions to and refinements of reimbursement methodology, not
mere applications of existing regulations,” and we held that it was a directive of
“general applicability.” Id. at 495-96.
In Northwest Pulp and Paper Assʼn, Ecology was concerned about the
polychlorinated biphenyls (PCBs) being discharged into the water. 200 Wn.2d at
668. Ecology revised its staff manual in order to provide guidance to staff tasked
with drafting NPDES permits as to the number of methods they could use in
measuring 	the 	number 	of 	PCBs 	discharged. 	Id. 	Northwest 	Pulp 	and 	Paper
Association challenged the revision to the staff manual, arguing that Ecology
promulgated a “rule” without complying with the APA rule-making process. Id. at
671. We held that the revision to the manual did not amount to a directive of “general
applicability” as it did not impose a uniform standard; it simply gave permit writers
“the 	discretion 	to 	choose 	the 	type 	of 	monitoring 	necessary 	based 	on 	the
circumstances of the facility.” Id. at 674.

City of Tacoma v. Dep’t of Ecology, No. 102479-7
15
Unlike the internal policy of Ecology in Simpson Tacoma Kraft Co. and the
internal policy of DSHS in Failor’s Pharmacy, Ecology’s commitment in the denial
letter is not a directive of “general applicability.” The recipients for the internal
policies in Simpson Tacoma Kraft Co. and Failor’s Pharmacy were agency staff,
and the policies bound them to certain actions, removed their discretion, required
uniform application, and made the internal policy binding on those regulated. The
recipient for the commitment in the denial letter was NWEA, and the difference
between what Ecology committed to doing in the denial letter with permitting and
what Ecology actually did with permitting shows that the commitment in the denial
letter did not bind Ecology staff. Ecology staff retained their discretion, employed
case-by-case analysis of the wastewater treatment plants’ operations, and the denial
letter was ultimately not binding on those regulated.
The individual permits and the general permit did not “[s]et nutrient loading
limits at current levels from all permitted dischargers in Puget Sound” as Ecology
committed to doing. CP at 127. Instead, Ecology staff had discretion and did a case-
by-case analysis of the permit holder’s operations when considering whether to
impose annual nitrogen discharge limits at all and, if so, what the limits would be.
When issuing the new permit for Birch Bay, three years of nitrogen monitoring data
was considered when it was given an annual discharging limit of 74,900 pounds of

City of Tacoma v. Dep’t of Ecology, No. 102479-7
16
nitrogen. When issuing the new permit for Big Lake, a 2014 upgrade from a rotating
biological contactor to a membrane bioreactor, allowing for the removal of nitrogen,
was considered when it was given an annual discharging limit of 10,658 pounds of
nitrogen. Ecology also created a general permit that sorted 58 wastewater treatment
plants into three tiers, “dominant,” “moderate,” and “small,” based on the amount of
nitrogen they annually discharged. Less than half of the wastewater treatment plants
had annual nitrogen discharge limits placed on them, only the 27 wastewater
treatment plants placed in the “dominant” and “moderate” tiers. Given the variability
of whether limits were imposed at all and how limits were calculated when they were
imposed, it is clear that Ecology did not bind its staff to “[s]et[ting] nutrient loading
limits at current levels from all permitted dischargers in Puget Sound” “through the
individual permitting process,” as it committed to doing so in the denial letter to
NWEA. Id.
Whether an agency action is a “rule” under the APA requires establishing two
elements or necessary conditions. Nw. Pulp & Paper Assʼn, 200 Wn.2d at 672-73.
First, the agency action must be an “order, directive, or regulation of general
applicability.” Id. at 672. Second, the agency action must fall within one of the five
enumerated categories listed in RCW 34.05.010(16)(a)-(e). Id. at 672-73. One of the
two necessary conditions of a “rule” as defined by RCW 34.05.010(16) is not met

City of Tacoma v. Dep’t of Ecology, No. 102479-7
17
because 	the 	commitment 	in 	the 	denial 	letter 	is 	not 	a 	directive 	of 	“general
applicability.” 	Therefore, the inquiry as to whether the commitment in the denial
letter is a “rule” under the APA stops here. Accordingly, we reverse the Court of
Appeals, as the commitment in the denial letter is not a “rule” as defined by RCW
34.05.010(16).
CONCLUSION
The 	commitment 	in 	the 	denial 	letter 	is 	not 	a 	directive 	of 	“general
applicability” as it did not eliminate staff discretion or prevent a case-by-case
analysis of the permit holder’s operations when issuing permits. Being a directive of
“general applicability” is one of the two necessary conditions of a rule as defined
under RCW 34.05.010(16). Therefore, the commitment in the denial letter is not a
“rule.” Accordingly, we reverse the Court of Appeals and remand to the superior
court for any further proceedings that may be necessary.

City of Tacoma, et al. v. Dep't of Ecology, No. 102479-7
Whilever IT. Whitener, J.
WE CONCUR.
(González c.J. Stefan, 9.
González, C.J/
Salmon & Handy Milla, 1. Johnson, J. Gordon McCloud, J.
madsen
Madsen, J. 8.
Lu. g Yu, J.
Montoya· Lent J Montoya-Lewis, J .-
18