Washington Supreme Court hears dispute over whether Ecology's denial letter imposed an unadopted nutrient rule

The Washington Supreme Court heard argument May 30 over whether a January 2019 letter from the Department of Ecology — which committed that Ecology “would set nutrient loading levels for Puget Sound municipalities to prevent the pollution problem from getting worse” — constituted a rule that required formal rulemaking under the state Administrative Procedure Act.

In opening, Ron Levine, senior counsel for the Department of Ecology, told the court the Court of Appeals erred on three points and urged reversal. Levine said the agency’s statement in the denial letter was explanatory and left room for agency discretion, noting that “the statement did not say what nutrients would be regulated” and that different permits afterward regulated different nutrients. He argued that an agency action is a rule only when it is binding on the regulated community and restricts agency discretion, and he asked the justices to resolve a conflict between divisions of the Court of Appeals about that test.

Why it matters: Respondent permittees say the January letter functioned as a de facto rule and was implemented in subsequent…