IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PUGET SOUNDKEEPER ALLIANCE,

Appellant,

v.

STATE OF WASHINGTON 

POLLUTION CONTROL HEARINGS 

BOARD,

Respondent, 

and

STATE OF WASHINGTON, 

DEPARTMENT OF ECOLOGY, 

Respondent below, 

and

BNSF RAILWAY COMPANY, THE 

NORTHWEST SEAPORT ALLIANCE, 

PORT OF SEATTLE, PORT OF 

TACOMA, PACIFIC MERCHANT 

SHIPPING ASSOCIATION, and SSA 

TERMINALS, LLC, 

Respondents.

No. 85665-1-I

DIVISION ONE

PUBLISHED OPINION

MANN, J. — “Stormwater runoff is one of the most significant sources of water 

pollution in the nation, at times ‘comparable to, if not greater than, contamination from 

industrial and sewage sources.”1 The Washington Department of Ecology is charged by 

 1 Env’t Def. Ctr., Inc. v. U.S. Env’t Prot. Agency, 344 F.3d 832, 840-41 (9th Cir. 2003).
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statute with implementing both the federal Clean Water Act of 1977 (CWA), 33 U.S.C. 

§§ 1251-1389, and Washington’s “Water Pollution Control Act” (WPCA), ch. 90.48 

RCW. This appeal concerns Ecology’s issuance of the 2020 Industrial Stormwater 

General Permit (2020 permit) under the National Pollutant Discharge Elimination 

System (NPDES) and state discharge permit program. Consistent with prior iterations 

of the same permit, Ecology maintains that under the 2020 permit “transportation 

facilities” that have “vehicle maintenance shops, equipment cleaning operations, or 

airport deicing operations” must obtain coverage under the 2020 permit. And for 

facilities that must obtain coverage, the permit requirements apply to the entire facility—

not limited portions. 

Several parties appealed the 2020 permit raising a multitude of issues. The 

Pollution Control Hearings Board (PCHB) granted summary judgment on legal issue 11

in favor of industry appellants and declared legal issue 12 moot as a result. The PCHB 

concluded, as a matter of law, that the 2020 permit was unambiguous and only applied

to limited portions of the covered transportation facilities. Puget Soundkeeper Alliance

(PSA) appeals the PCHB’s order granting summary judgment and argues that the 

permit applies to the entire transportation facility. 2 We agree. 

We reverse and set aside the PCHB’s order on legal issues 11 and 12. We 

remand to the PCHB to, consistent with this opinion, grant summary judgment on legal 

issue 11 in favor of Ecology and PSA, and reach the merits of legal issue 12.

 2 Ecology was the respondent before the PCHB below and submitted a brief as a respondent in 

this appeal in favor of reversing the PCHB’s order. 
No. 85665-1-I/3

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I

A

The objective of the federal CWA is “to restore and maintain the chemical, 

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The 

CWA set a national goal to eliminate the discharge of pollutants into the Nation’s waters 

by 1985. 33 U.S.C. § 1251(a)(1). The CWA also recognized the role of the states in 

controlling water pollution: “the policy of the Congress to recognize, preserve, and

protect the primary responsibilities and rights of States to prevent, reduce, and eliminate 

pollution.” 33 U.S.C. § 1251(b). Consistent with this policy, the CWA explicitly 

authorizes states to regulate water pollution more stringently than required by the CWA. 

33 U.S.C. § 1370.

The CWA prohibits the discharge of any pollutant from a point source to 

navigable waters without a permit. 33 U.S.C. §§ 1311(a), 1362(12). The NPDES 

program is the permitting program through which individuals, corporations, and 

governments obtain the required permits before discharging pollution from any point 

source into the navigable waters of the United States. 33 U.S.C. § 1342; Decker v. Nw. 

Env’t Def. Ctr., 568 U.S. 597, 602, 133 S. Ct. 1326, 185 L. Ed. 2d 447 (2013). The 

Environmental Protection Agency (EPA) sets the base requirements for the NPDES 

program and is authorized to delegate administration of the program to a state upon a 

state’s request and submission that it has adequate authority to carry out the program. 

33 U.S.C. § 1342(b). The CWA makes clear that EPA’s mandates and standards are a 

floor, not a ceiling:
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Except as expressly provided in this chapter, nothing in this chapter shall . 

. . preclude or deny the right of any State . . . to adopt or enforce (A) any 

standard or limitation respecting discharges of pollutants, or (B) any

requirement respecting control or abatement of pollution; except that if an 

effluent limitation, or other limitation, effluent standard, prohibition, . . . or 

standard of performance is in effect under this chapter, such State . . . 

may not adopt or enforce any effluent limitation or other limitation, effluent 

standard, prohibition, . . . or standard of performance which is less 

stringent than the effluent limitation, or other limitation, effluent standard, 

prohibition, . . . or standard of performance under this chapter. 

33 U.S.C. § 1370; see also 33 U.S.C. § 1251(b) (“It is the policy of the Congress to 

recognize, preserve, and protect the primary responsibility and rights of States to 

prevent, reduce, and eliminate pollution.”). 

EPA authorized Ecology to administer the NPDES program in Washington in 

1974. See Discharge of Pollutants to Navigable Waters, 39 Fed. Reg. 26,061 (July 16, 

1974). The Washington Legislature has designated Ecology as the state water pollution 

control agency for all purposes under the CWA. RCW 90.48.260. 

Ecology also administers the WPCA. The WPCA declares it is the public policy 

of the state to:

maintain the highest possible standards to insure the purity of all waters of 

the state consistent with public health and public enjoyment thereof, the 

propagation and protection of wild life, birds, game, fish, and other aquatic 

life, and the industrial development of the state, and to that end require the 

use of all known available and reasonable methods by industries and 

others to prevent and control the pollution of the waters of the state.

RCW 90.48.010. The legislature also declared a public policy of “working cooperatively 

with the federal government in a joint effort to extinguish the sources of water quality 

degradation, while at the same time preserving and vigorously exercising state powers” 

to protect water quality. RCW 90.48.010. 
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RCW 90.48.020 broadly defines “pollution” to include any contamination of state 

waters that “will or is likely to create a nuisance or render such waters harmful . . . to the 

public health, safety or welfare, or to domestic, commercial, industrial, agricultural, 

recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, 

or other aquatic life.” RCW 90.48.080 prohibits all discharges of any “matter that shall 

cause or tend to cause pollution. Under RCW 90.48.160, a discharge permit is required 

by “[a]ny person who conducts a commercial or industrial operation of any type which 

results in the disposal of solid or liquid waste material” into any water of the state.” 

B

There are generally two types of NPDES permits: individual and general. See

Nat. Res. Def. Council v. U.S. Env’t Prot. Agency, 279 F.3d 1180, 1183 (9th Cir. 2002). 

Individual NPDES permits authorize a specific entity to discharge pollutants at a specific 

location or locations. WAC 173-220-030(12). Individual NPDES permits are issued 

after an informal agency adjudication process. See 40 C.F.R. § 122.21. In contrast, 

general NPDES permits are issued for an entire class of potential dischargers in a given 

geographical location. General permits may be appropriate when the dischargers in a 

geographic area are relatively homogenous—such as stormwater dischargers. 40 

C.F.R. § 122.28; WAC 173-226-030(13). General permits are issued pursuant to an 

administrative rulemaking process, including public notice, public hearing, and an 

administrative appeal process. WAC 173-226-130 to -180. Once a general permit is 

issued, it is up to the facility to apply for coverage under the general permit. WAC 173-

226-200. 
No. 85665-1-I/6

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General NPDES permits, like the 2020 permit at issue, are designed to satisfy 

the requirements of both the federal CWA and the state WPCA. WAC 173-226-010. 

C

Stormwater pollution is a major concern for the states. As recognized by the 

Ninth Circuit over twenty years ago, “[s]tormwater runoff is one of the most significant

sources of water pollution in the nation, at times ‘comparable to, if not greater than, 

contamination from industrial and sewage sources.’” Env’t Def. Ctr., Inc. v. U.S. Env’t 

Prot. Agency, 344 F.3d 832, 840-41 (9th Cir. 2003). As acknowledged by the PCHB:

Stormwater is the leading contributor to water quality pollution in urban 

waterways. Common pollutants in stormwater include lead, zinc, 

cadmium, copper, chromium, arsenic, bacterial/viral agents, oil & grease, 

organic toxins, sediments, nutrients, heat, and oxygen-demanding 

organics. Municipal stormwater also causes hydrologic impacts, because 

the quantity and peak flows of runoff are increased by the large 

impervious surfaces in urban areas. Stormwater discharges degrade 

water bodies and, consequently, impact human health, salmon habitat, 

drinking water, and the shellfish industry.

Puget Soundkeeper All. v. Dep’t of Ecology, No. 07-21, at 11-12 (Wash. Pollution 

Control Hr’gs Bd. Apr. 2, 2008) [https://perma.cc/W66H-DTBL].

EPA initially exempted stormwater discharges from the CWA’s requirements. 

Defs. of Wildlife v. Browner, 191 F.3d 1159, 1163, amended and reh’g denied, 197 F.3d 

1035 (9th Cir. 1999); see former 40 C.F.R. § 125.4 (1973). The Court of Appeals for the 

District of Columbia, however, invalidated this exemption. Nat. Res. Def. Council, Inc. 

v. Costle, 186 U.S. App. D.C. 147, 568 F.2d 1369, 1377 (D.C. Cir. 1977). 

Subsequently, EPA issued regulations governing stormwater discharges and those 

rules were challenged at the administrative level and in the courts. Defs. of Wildlife, 191 

F.3d at 1163. In 1987, Congress passed the Water Quality Act, amending the CWA so 
No. 85665-1-I/7

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that stormwater discharges associated with industrial activity are not exempt from 

permit requirements. 33 U.S.C. § 1342(p)(2); Water Quality Act of 1987, Pub. L. No. 

100-4, 101 Stat. 7.

EPA’s regulations broadly define “storm water discharge associated with 

industrial activity” to include discharges from a wide variety of pollution generating areas 

and activities, including, but not limited to:

[I]mmediate access roads and rail lines used or traveled by carriers of raw 

materials, manufactured products, waste material, or by-products used or 

created by the facility; material handling sites; . . . shipping and receiving

areas; . . . storage areas (including tank farms) for raw materials, and 

intermediate and final products; . . . storage, loading and unloading, 

transportation, or conveyance of any raw material, intermediate product, 

final product, by-product or waste product.

40 C.F.R. § 122.26(b)(14). 

EPA’s regulation then identifies the “categories of facilities . . . considered to be 

engaging in ‘industrial activity’ for the purposes of paragraph (b)(14).” These are the 

categories of facilities, identified by Standard Industrial Classifications (SIC) that are 

required to obtain a NPDES permit to authorize stormwater discharges. Transportation 

facilities are identified in 40 C.F.R. § 122.26(b)(14)(viii) (or “category 8”), and are 

required to obtain a NPDES permit if they have “vehicle maintenance shops, equipment 

cleaning operations, or airport deicing operations.” 

EPA’s regulation continues, however, and limits the requirement for NPDES 

permits to specific portions of the transportation facility:

Only those portions of the facility that are either involved in vehicle 

maintenance (including vehicle rehabilitation, mechanical repairs, painting, 

fueling, and lubrication), equipment cleaning operations, airport deicing 

operations . . . are associated with industrial activity.
No. 85665-1-I/8

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40 C.F.R. § 122.26(b)(14)(viii).3

D

Ecology regulates certain stormwater discharges from industrial activities under a 

general NPDES permit under WAC 173-226. The statewide industrial stormwater 

general permit is meant to comply with both the WPCA and the CWA. WAC 173-226-

010. 

In preparation for issuing the 2010 version of the industrial stormwater general 

permit (2010 permit), Ecology’s permit team recognized that there was a question over 

coverage at category 8 transportation facilities: whether the 2010 permit would apply to 

the entire site, or be limited to just the vehicle maintenance areas consistent with the 

federal regulation’s limiting language. This issue was discussed with Ecology’s permit 

management team who decided that such coverage was a matter of site-specific 

implementation. In other words, once permit coverage is required at a transportation 

facility, the permit applies to all discharges from industrial activity which may vary from 

site to site as opposed to regulating “only those portions” of the facility like the limiting 

language in 40 C.F.R. § 122.26(b)(14)(viii). 

 3 In its brief, Ecology offers one example of the effect of the limiting language in 40 C.F.R. § 

122.26(b)(14)(viii):

For example, at the Port of Tacoma’s West Sitcum Terminal, ‘five enormous ship-toshore cranes load and unload large shipping containers from docked vessels.’ If these 

loading and unloading activities took place at any facility other than a transportation 

facility they would clearly be associated with industrial activity under 40 C.F.R. §

122.26(b)(14) because loading and unloading areas are included in the definition of 

stormwater discharge associated with industrial activity. However, when these same 

activities take place at a transportation facility, they are not associated with industrial 

activity under EPA’s regulations. 
No. 85665-1-I/9

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In response to Ecology’s draft 2010 permit, commenters, including appellant 

BNSF Railway Company, asked that Ecology include in the body of the permit the “only 

those portions” limiting language. Ecology responded that it had decided not to include 

the limiting language. Similarly, in Ecology’s 2010 “Frequently Asked Questions” 

document it explained that once a transportation facility required a permit, the permit 

applied to the entire facility:

Q11: My transportation facility has a vehicle maintenance shop and 

therefore requires permit coverage. Does the permit apply to the entire 

footprint of the facility, or just to the area where we conduct vehicle 

maintenance activity?

A11: Once a transportation facility has permit coverage, the permit 

conditions for sampling, inspection and stormwater management practices 

are required in all areas of industrial activity—rather than only those areas 

where vehicle maintenance, equipment cleaning and airport de-icing 

occur.

On July 27, 2010, Washington Ports (including the Ports of Vancouver, 

Longview, and Olympia) wrote to Ecology’s director raising concerns with Ecology’s 

implementation and enforcement of the 2010 permit. The Ports raised their concern 

that Ecology’s permit manager told the Ports that “a vehicle maintenance facility triggers 

Industrial Permit coverage and monitoring of all port property (as opposed to coverage 

and monitoring of the discrete maintenance facility).” Ecology responded and confirmed 

that “[o]nce a facility has permit coverage, the Permit’s sampling, inspection, and 

stormwater management practices are required in all areas of industrial activity—rather 

than only those areas where vehicle maintenance, equipment cleaning, and airport 

deicing occur.” Ecology recommended that “Ports take the necessary steps to 

implement the Permit requirement on all areas of industrial activity as soon as possible.” 
No. 85665-1-I/10

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E

Ecology issued the 2020 version of the industrial stormwater general permit 

(2020 permit) on November 20, 2019.

4 The 2020 permit is consistent with the 2010 and 

2015 permits. The 2020 permit applies to “facilities conducting industrial activities that 

discharge stormwater” to surface waters. (Emphasis added.) Specifically, it requires 

that facilities “engaged in any industrial activities in Table 1 shall apply for coverage if 

stormwater from the facility discharges to a surface waterbody.” 

Table 1 includes transportation facilities:

Transportation facilities which have vehicle maintenance activity, 

equipment cleaning operations, or airport deicing operations:

• Railroad Transportation

• Transit and Ground Passenger Transportation

• Truck Transportation

• Postal Service

• Water Transportation

• Air Transportation

• Petroleum Bulk Stations and Terminals

As with the 2010 permit, the Table 1 list of transportation facilities does not include the 

limiting language in 40 C.F.R. § 122.26(b)(14)(viii). 

The 2020 permit defines a “Facility” as follows:

Facility means any establishment (including land or appurtenances 

thereto) that is subject to regulation under this permit. 

 4 The 2020 ISGP became effective on January 1, 2020, and expires on December 31, 2024. 
No. 85665-1-I/11

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The 2020 permit defines “Industrial Activity” to include three different categories: 

Industrial Activity means (1) the 11 categories of industrial activities 

identified in 40 C.F.R. 122.26(b)(14)(i-xi) that must apply for either 

coverage under this permit or no exposure certification, (2) any facility 

conducting any activities described in Table 1, and (3) the activities 

occurring at any facility identified by Ecology as a significant contributor of 

pollutants. Table 1 lists the 11 categories of industrial activities identified in 

40 C.F.R. 122.26(b)(14)(i-xi) in a different format. 

During the public comment period for the 2020 permit, commenters including 

respondents Northwest Seaport Alliance, Port of Tacoma, BNSF, and Port of Seattle,

requested clarifying language to limit applicability of the permit consistent with the “only 

those portions of the facility,” as used in 40 C.F.R. § 122.26(b)(14)(vii). Consistent with 

its interpretation of the 2010 permit, Ecology again declined:

Ecology made this change for the 2009 [Industrial Stormwater General 

Permit (ISGP)]. [Discharge Monitoring Report (DMR)] data from all 

transportation categories collected since 2009 demonstrates that activity

on those sites beyond vehicle maintenance shops, equipment cleaning 

operations, and airport deicing operations is a significant contributor of 

pollutants leaving the site at concentrations that may reasonably be 

expected to cause a violation of water quality standards. Ecology will 

continue to regulate the entire portion of these facilities. Ecology has 

considered the comments and chosen not to make the suggested change 

to draft permit. 

F

On December 19, 2019, PSA appealed the 2020 permit to the PCHB. The next

day, the following industrial organizations also appealed the 2020 permit: BNSF Railway 

Company, the Northwest Seaport Alliance, Port of Seattle, Port of Tacoma, Pacific 

Merchant Shipping Association, and SSA Terminals, LLC (together, industry).5 By

 5 BNSF Railway Company operates rail yards and railroad facilities throughout Washington State. 

Northwest Seaport Alliance, Port of Tacoma, and Port of Seattle own or lease facilities in Washington that 

are subject to the ISGP and together the Ports of Tacoma and Seattle are one of the largest container 

complexes in North America. Pacific Merchant Shipping Association is an independent association which 
No. 85665-1-I/12

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agreement of the parties, the PCHB consolidated the appeals. The parties identified 32 

legal issues in a joint issue list. 

The Port of Seattle, Port of Tacoma, Northwest Seaport Alliance, and BNSF 

Railway Company jointly moved for summary judgment on legal issues 11 and 12 which 

asked:

11. Does the ISGP extend or expand the coverage for transportation 

facilities beyond stormwater associated with “vehicle maintenance 

(including vehicle rehabilitation, mechanical repairs, painting, fueling, and 

lubrication), equipment cleaning operations, airport deicing operations, or 

which are otherwise identified under” 40 C.F.R. 122.26(b)(14)(i)-(vii), or 

(ix)-(xi)?

12. Is the purported expansion of the ISGP’s scope of coverage for 

transportation facilities beyond the definition of discharge associated with 

industrial activity unreasonable or unlawful by failing to comply with the 

procedural requirements of NPDES permitting under federal and state 

law? 

SSA Terminals, LLC and Pacific Merchant Shipping Association joined the motion.6 

Regarding legal issue 11 and the scope of coverage, industry argued that 

Ecology never made a determination to expand the scope of coverage of the 2020 

permit and that the permit does not regulate the entire facility. Industry argued that the 

2020 permit is not ambiguous and thus Ecology’s interpretation is not entitled to 

deference. 

The PCHB concluded as a matter of law that by its plain language, the 2020 

permit applies only to those areas of transportation facilities where vehicle maintenance 

activity, equipment cleaning operations, or airport deicing operations occur as defined in 

 represents owners and operators of marine terminals in Washington. SSA Terminals, LLC operates 

multiple marine terminals in Washington. 

6 SSA Terminals, LLC and Pacific Merchant Shipping Association also filed a motion for summary 

judgment on issues 11 and 12 but it was not considered by the PCHB because it was untimely filed. 
No. 85665-1-I/13

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40 C.F.R. § 122.26(b)(14)(viii); in other words, the 2020 permit does not cover the entire 

transportation facilities. The PCHB granted industry appellants’ motion for summary 

judgment on issue 11, declared issue 12 moot, and dismissed issues 11 and 12. On 

March 28, 2022, the PCHB dismissed the case.7 

PSA petitioned Thurston County Superior Court for judicial review of the PCHB’s 

order under the Washington Administrative Procedure Act (APA), ch. 34.05 RCW. By 

agreement of the parties, the case was transferred to this court for direct review under 

RCW 34.05.518. 

III

A

The APA governs review of PCHB orders. Port of Seattle v. Pollution Control

Hr’gs Bd., 151 Wn.2d 568, 587, 90 P.3d 659 (2004). If the agency decision was on 

summary judgment, “the reviewing court must overlay the [APA] standard of review with 

the summary judgment standard.” Verizon Nw., Inc. v. Emp. Sec. Dep’t, 164 Wn.2d 

909, 916, 194 P.3d 255 (2008). Accordingly, facts in the record are reviewed de novo 

and are viewed in the light most favorable to the nonmoving party. Verizon, 164 Wn.2d 

at 916. Summary judgment is appropriate only where the undisputed material facts 

entitle the moving party to judgment as a matter of law. Verizon, 164 Wn.2d at 916. 

“The burden of demonstrating the invalidity of agency action is on the party asserting 

invalidity.” RCW 34.05.570(1)(a).

 7 PSA and Ecology notified the PCHB that they had reached a tentative agreement on all of 

PSA’s issues and did not expect to proceed to hearing. Industry entered into a settlement agreement 

with Ecology and the parties agreed to the dismissal of the remaining legal issues. 
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“Review is confined to the record before the Board.” Snohomish County v. 

Pollution Control Hr’gs Bd., 187 Wn.2d 346, 357, 386 P.3d 1064 (2016). An agency’s 

legal determinations are reviewed under the “error of law” standard, which allows this 

court to substitute its view of the law for the agency’s. Puget Soundkeeper All. v. 

Pollution Control Hr’gs Bd., 189 Wn. App. 127, 136, 356 P.3d 753 (2015). Under this 

standard, questions of law and the agency’s application of the law are reviewed de 

novo. Port of Seattle, 151 Wn.2d at 588. Rulings made on summary judgment are also 

reviewed de novo. Snohomish County, 187 Wn.2d at 357. 

Relief may be granted based on any of the grounds listed in RCW 34.05.570. 

Relevant here, this court shall grant relief if it determines that (1) the PCHB has 

erroneously interpreted or applied the law or (2) the agency has not decided all the 

issues requiring resolution by the agency. RCW 34.05.570(3)(d), (f).

Because Ecology and PCHB disagree on the interpretation of the 2020 permit, it 

is important to note the roles assigned to each agency. In the 1970s, the legislature 

removed certain adjudicatory functions from Ecology and gave them to the PCHB. 

Ch. 43.21B RCW. The PCHB is a quasi-judicial body that provides uniform and 

independent review of Ecology action. RCW 43.21B.010, 110. Ecology retains 

rulemaking, interpretive, and enforcement functions as the agency charged with 

administration of water quality statutes and rules. Port of Seattle, 151 Wn.2d at 591-92. 

Accordingly, it is appropriate to defer to Ecology’s interpretation of its own regulations 

and that interpretation is afforded great weight. Port of Seattle, 151 Wn.2d at 593. 
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B

We first address whether a general NPDES permit is reviewed as a contract or 

regulation. Citing the Fourth Circuit opinion in Piney Run Preservation Ass’n v. County

Commissioners, 268 F.3d 255, 269-70 (4th Cir. 2001), the PCHB stated that “[f]ederal 

courts have held that NPDES permits are treated like any other contract. If the 

language of the permit is plain and capable of legal construction, the language alone 

must determine the permit’s meaning.” Puget Soundkeeper All. v. Dep’t of Ecology, No. 

19-089c, at 9 (Wash. Pollution Control Hr’gs Bd. Mar. 23, 2021) [https://perma.cc/5MAJBAQM]. Similarly, the PCHB stated that “Washington law also provides that permits are 

interpreted in the same manner as statutes and contracts: extrinsic evidence is not 

relevant where the terms stated in the permit are unambiguous, and may not be used to 

contradict or vary these terms.” Puget Soundkeeper All., No. 19-089c, at 10 (citing 

Kaiser Alum. & Chem. Corp. v. Dep’t of Ecology, PCHB No. 97-126 (Wash. Pollution 

Control Hr’gs Bd. Nov. 21, 1997) [https://perma.cc/P7VV-GGS8]). We agree with the 

PCHB that where the terms of an NPDES permit, whether an individual permit or 

general permit, are unambiguous, the plain language of the permit controls. But if the 

plain language is ambiguous, whether the permit is reviewed as contract or regulation 

makes a difference. 

If a permit is reviewed as a contract and its terms are ambiguous, we determine 

its meaning as a matter of law using general rules of construction applicable to statutes, 

contracts, and other writings. In re Marriage of Gimlett, 95 Wn.2d 699, 704-05, 629 

P.2d 450 (1981). We “consider ‘the contract as a whole, the subject matter and 

objective of the contract, all the circumstances surrounding the making of the contract, 
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the subsequent acts and conduct of the parties to the contract, and the reasonableness 

of the respective interpretations advocated by the parties.’” Paradise Orchards Gen.

P’ship v. Fearing, 122 Wn. App. 507, 516, 94 P.3d 372 (2004) (quoting Berg v.

Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990)). Extrinsic evidence could be 

considered “to help the fact finder interpret a contract term and determine the 

contracting parties’ intent,” but not “to show intention independent of the contract.” 

Brogan & Anensen LLC v. Lamphiear, 165 Wn.2d 773, 775-76, 202 P.3d 960 (2009). 

“[T]he subjective intent of the parties is generally irrelevant if the intent can be 

determined from the actual words used.” Brogan, 165 Wn.2d at 776.

But if a permit is reviewed as a regulation or statute and its terms are ambiguous, 

courts give “great weight” to the agency’s interpretation of an ambiguous statute “which 

falls within the agency’s expertise,” provided that interpretation does not conflict with the 

statute’s language or underlying intent.” Puget Soundkeeper All., 189 Wn. App. at 136-

37 (quoting Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep’t of Ecology, 146 Wn.2d 

778, 790, 51 P.3d 744 (2002)). The same deference is given to an agency’s 

interpretation of its own regulations. “Because Ecology is the agency designated by the 

legislature to regulate the State’s water resources, . . . this court has held that it is 

Ecology’s interpretation of relevant statutes and regulations that is entitled to great 

weight.” Port of Seattle, 151 Wn.2d at 593. 

The PCHB is correct that some federal courts have reviewed individual NPDES 

permits as contracts. For example, in Nw. Env’t Advocs. v. City of Portland, 56 F.3d 

979 (9th Cir. 1995), the court reviewed the City of Portland’s individual NPDES permit 

and whether it covered discharges from combined sewer overflows. The court did not 
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analyze whether the permit was more akin to a regulation or contract, but simply stated, 

without citation, that “we review the district court’s interpretation of the [NPDES permit] 

as we would the interpretation of a contract or other legal document.” Nw. Env’t

Advocs., 56 F.3d at 982.8 Because an individual NPDES permit can be the product of 

negotiation between the agency and discharger, treating such a permit like a contract 

may be appropriate. 

Our Supreme Court considered an ambiguous individual NPDES permit in ITT 

Rayonier, Inc. v. Dep’t of Ecology, 91 Wn.2d 682, 586 P.2d 1155 (1978). The court 

explained: 

We agree that the permit itself is ambiguous. However, it was error here 

for the PCHB to look only to DOE’s intent to resolve this ambiguity. 

Although the general rule may be that construction of administrative 

orders depends only upon the intent or purpose of the issuing agency, . . . 

under the circumstances here that rule does not apply. Because the 

portion of the permit at issue here—footnote f—was the product of 

negotiation and agreement between the parties, the intent of both parties, 

and not just the agency, is relevant. The footnote provision is in the 

nature of a consent decree or a negotiated settlement, and contract 

principles of construction are properly applied.

ITT Rayonier, 91 Wn.2d at 686-87 (internal citations omitted). 

But in contrast, a general NPDES permit is not the product of a negotiation 

between the agency and an individual discharger. A general NPDES permit covers a 

number of similar dischargers in a wide geographic area. And, as discussed above, it is 

the product of an administrative rulemaking process, including public notice, public 

 8 Similarly, in Piney Run Preservation, the Fourth Circuit considered an individual NPDES permit 

issued for a county’s wastewater facility and interpreted the permit as a contract, without citing any

analysis. 268 F.3d at 269. 
No. 85665-1-I/18

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hearing, and an administrative appeal process. WAC 173-226-130 to -180. Individual 

discharges can opt into coverage under the permit, but do not negotiate its terms. WAC 

173-226-200. 

In Alaska Community Action on Toxics v. Aurora Energy Services, LLC, 765 F.3d 

1169 (9th Cir. 2014), the Ninth Circuit considered whether a discharger’s nonstormwater 

discharge of coal was covered by a general NPDES permit. The court explained that 

general NPDES permits are interpreted as a regulation because they are issued 

according to an administrative rulemaking process. 765 F.3d at 1172 (citing Nat. Res. 

Def. Council v. U.S. E.P.A., 279 F.3d 1180 (9th Cir. 2002); OFF. OF WATER ENF’T &

PERMITS, U.S. ENV’T PROT. AGENCY, EN-336, GENERAL PERMIT PROGRAM GUIDANCE 11 

(Feb. 1988) (“general permits are rulemakings”), 

https://nepis.epa.gov/Exe/ZyPDF.cgi/P100FD8U.PDF?Dockey=P100FD8U.PDF 

[https://perma.cc/AFV3-3EHM]). 

We agree with Alaska Cmty. Action. General NPDES permits—like the 2020 

ISGP—are issued according to rulemaking procedures, have broad applicability, and 

therefore should be interpreted as a regulation. 765 F.3d at 1172.

VI

We turn next to the terms of the 2020 permit. The PCHB concluded that the 

2020 permit was unambiguous and did not apply to transportation facilities beyond 

stormwater associated with “vehicle maintenance (including vehicle rehabilitation, 

mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, 

[or] airport deicing operations.” PSA and Ecology agree that the 2020 permit is 

unambiguous but, contrary to the PCHB’s interpretation, argue that because the permit
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does not include the limiting language in 40 C.F.R. § 122.26(b)(14)(viii), the permit 

applies to the entire transportation facility. We agree with PSA and Ecology. 

When interpreting agency regulations, courts apply the same principles used to 

construe statutes. Puget Soundkeeper All. v. Dep’t of Ecology, 191 Wn.2d 631, 644, 

424 P.3d 1173 (2018). The “‘fundamental objective’” of statutory interpretation is to 

“‘ascertain and carry out the Legislature’s intent.’” State v. Valdiglesias LaValle, 2 

Wn.3d 310, 317-18, 535 P.3d 856 (2023) (quoting Dep’t of Ecology v. Campbell & 

Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). If a statute’s meaning is plain on its 

face, courts will give effect to that meaning as an expression of legislative intent. 

Valdiglesias LaValle, 2 Wn.3d at 318. “If the statute is susceptible to more than one 

reasonable interpretation after this inquiry, it is ambiguous.” Valdiglesias LaValle, 2 

Wn.3d at 318. A regulation is not ambiguous merely because another interpretation is 

possible. Valdiglesias LaValle, 2 Wn.3d at 318.

To determine the “plain meaning” of a statute, courts look to the text, the context 

of the statute, related statutory provisions, and the statutory scheme as a whole. 

Valdiglesias LaValle, 2 Wn.3d at 318. Interpretations must give meaning to every word 

in the statute or regulation. Wash. Cedar & Supply Co., Inc. v. Dep’t of Lab. & Indus., 

137 Wn. App. 592, 599, 154 P.3d 287 (2007). Undefined terms are given their plain 

and ordinary meaning unless a contrary legislative intent is indicated. Valdiglesias

LaValle, 2 Wn.3d at 318. Courts “employ traditional rules of grammar in discerning the 

plain language of the statute.” Valdiglesias LaValle, 2 Wn.3d at 318 (quoting State v. 

Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010)). “Our goal is to achieve a 

harmonious total statutory scheme to avoid conflicts between different provisions.” 
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Wash. Cedar & Supply, 137 Wn. App. 592 (citing Lee Cook Trucking & Logging v. Dep’t 

of Lab. & Indus., 109 Wn. App. 471, 481, 36 P.3d 558 (2001)).

Looking first to the plain language of the 2020 permit, it provides that the permit 

“applies to facilities conducting industrial activities.” The permit defines industrial 

activity to include three different categories: 

(1) the 11 categories of industrial activities identified in 40 C.F.R. 

122.26(b)(14)(i-xi) that must apply for either coverage under this permit or 

no exposure certification, (2) any facility conducting any activities 

described in Table 1, and (3) the activities occurring at any facility 

identified by Ecology as a significant contributor of pollutants. Table 1 lists 

the 11 categories of industrial activities identified in 40 C.F.R. 

122.26(b)(14)(i-xi) in a different format. 

The first category of industrial activities requires permit coverage for any facility 

considered to engage in industrial activity under the federal regulation. Transportation 

facilities are covered under category 8. 40 C.F.R. § 122.26(b)(14)(viii). As discussed 

above the federal language limits the scope of coverage to “only those portions” of the 

facility that conduct vehicle maintenance, equipment cleaning, or airport operations. 

The second category of industrial activities require permit coverage for “any 

facility conducting any activity described in Table 1.” “Facility” means “any 

establishment (including land or appurtenances thereto) that is subject to regulation 

under this permit.” Table 1 includes transportation facilities that conduct vehicle 

maintenance, equipment cleaning, or airport deicing operation. Reading these two 

provisions together, it is plain that the second category requires coverage for the land 

and appurtenances at any transportation facility that conducts vehicle maintenance, 

equipment cleaning, or airport deicing operations—that is, the entire footprint of the 

transportation facility. A facility may be subject to coverage under the permit because it 
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belongs to one of the “categories” of facilities listed in the C.F.R. or, because the 

facility—including its land and appurtenances—conducts one of the “activities”

described in Table 1 which does not specifically limit transportation facility industrial 

activity to any one area of the facility.9

The PCHB’s interpretation rendered the second category for the definition of 

“industrial activities” superfluous by concluding that, like the first category, it was limited 

by the “only those portions” language found in the federal regulation. To reach this 

conclusion the PCHB ignored the expansive “any facility” language in the second 

category, and then read the “only those portions” language into the definition’s clause, 

even though those words do not exist anywhere in the 2020 permit. The PCHB erred in 

inserting words that did not exist into the permit’s definition, which had the effect of also 

rendering the second category superfluous. Rest. Dev., Inc. v. Cananwill, Inc., 150 

Wn.2d 674, 682, 80 P.3d 598 (2003) (a court must not add words to a statute and must 

construe statutes such that all of the language is given effect, and no portion is

rendered meaningless or superfluous).

The PCHB also concluded that the last sentence of the permit’s definition of 

industrial activities—“Table 1 lists the 11 categories of industrial activities identified in 40 

C.F.R. 122.26(b)(14)(i-xi) in a different format”—should be read into the second 

category of facilities. But doing so still reads language into the definition and renders 

the second category superfluous with the first category. A reasonable interpretation of 

 9 “Categories” are defined as any of several fundamental and distinct classes to which entities 

belong. MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/category 

(last visited March 18, 2024). “Activities” are defined as behavior or actions of a particular kind. 

MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/activities (last visited 

March 18, 2024).
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the last sentence is that the categories of facilities—transportation facilities, recycling 

facilities, etc.—are part of, or included, in Table 1, but in a different general makeup or 

arrangement. This clarification makes sense given the inconsistency between the 

number of federal categories of facilities (11) and the number of activities described in 

Table 1 (32). The definition does not say that Table 1 “incorporates” or is “identical to” 

the federal categories of facilities. From other provisions in the 2020 permit, it is clear 

that Ecology explicitly incorporates by reference when it wants to. 

Reading the permit according to Ecology’s interpretation gives effect to each of 

the three categories of industrial activities in the definition while also harmonizing the 

last sentence with the terms so as not to add or remove language.10 Read together, if a 

transportation facility requires coverage under the 2020 permit because it conducts 

vehicle maintenance, equipment cleaning, or airport deicing operations, coverage under 

the permit applies to the entire transportation facility, not just limited areas. 

 10 While not necessary for our conclusion, it appears Ecology has also determined that the third 

category of industrial activities also applies. In the Fact Sheet for the 2020 permit, Ecology “determined 

that stormwater discharges may cause a violation of water quality standards for a variety of pollutant 

parameters.” During public comment for the 2020 Permit, owners and operators of transportation facilities 

commented on Ecology’s decision to continue its expanded scope of coverage. The owners and 

operators asked that Ecology clarify and limit the scope of coverage by adding the limiting language from 

category 8. Ecology declined to make the suggested change and then explained its determination that 

stormwater discharges from transportation facilities are significant contributors of pollutants at 

concentrations that were expected to cause a violation of water quality standard:

DMR data from all transportation categories collected since 2009 demonstrates that 

activity on these sites beyond vehicle maintenance shops, equipment cleaning 

operations, and airport deicing operations is a significant contributor of pollutants leaving 

the site at concentrations that may reasonably be expected to cause a violation of water 

quality standards. Ecology will continue to regulate the entire portion of these facilities. 

Ecology has considered the comments and chosen not to make the suggested change to 

[the] draft permit. 
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VII

But even if we decided the 2020 permit terms are ambiguous, our conclusion 

remains the same: the 2020 ISGP applies to entire transportation facilities.11 Courts 

give “great weight” to the agency’s interpretation of an ambiguous statute “which falls 

within the agency’s expertise,” provided that interpretation does not conflict with the 

statute’s language or underlying intent.” Puget Soundkeeper All., 189 Wn. App. at 136-

37 (quoting Pub. Util. Dist. No. 1, 146 Wn.2d at 790). The same deference is given to 

an agency’s interpretation of its own regulations. Port of Seattle, 151 Wn.2d at 593. As 

discussed earlier, we interpret general NPDES permits as we would a regulation.

The record reflects that since 2010 Ecology has interpreted the ISGP to cover

entire transportation facilities that have vehicle maintenance, equipment cleaning, or 

airport deicing without limiting industrial activity to only certain areas. For example, in 

response to an inquiry from several ports as to scope, Ecology clarified that once a 

facility has permit coverage, the permit’s sampling, inspection, and stormwater 

management practices are required in all areas of industrial activity. An Ecology 

 11 We recognize that two different U.S. Federal District Courts have found extent of coverage for 

transportation facilities in the 2010 and 2020 permits ambiguous. We are mindful, however, that a 

regulation is not ambiguous merely because another interpretation is possible. Valdiglesias LaValle, 2 

Wn.3d at 318.

In Puget Soundkeeper Alliance. v. BNSF Railway Co., No. C09-1087-JCC, 2011 WL 13233168,

at *1-2 (W.D. Wash. Apr. 11, 2011) (court order), the court interpreted the 2010 Permit, which it had 

determined to be ambiguous, as it would a regulation and thus relied on Ecology’s interpretation that the 

omission was “a significant policy question and that the intent was to expand the geographical scope of 

permit coverage.” The court concluded that discovery was relevant to portions of the facility beyond 

those areas where vehicle maintenance and equipment cleaning occur and granted the plaintiff’s motion. 

BNSF Ry. Co., 2011 WL 13233168, at *2.

In Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, No. C17-05016 BHS, 2020 WL 

6445825, at *10 (W.D. Wash. Nov. 3, 2020) (court order), the court determined the plain language of the 

2020 permit incorporates the federal regulation and the “only those portions” limiting definition. 

Accordingly, the court rejected Ecology’s interpretation and granted the Port of Tacoma’s motion that the 

“clear language of the ISGP” included the limiting language. APM Terminals, 2020 WL 6445825 at *10.
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supervisor confirmed that in 2009 the Water Quality Program management team 

discussed the expansion beyond what the federal regulation required and that the 

omission of the “only those portions” language was intentional. 

Ecology restated this interpretation again in issuing the 2020 permit. In response 

to public comments on the draft 2020 permit, Ecology explained that based on data 

since 2009 the activity on transportation facilities beyond the vehicle maintenance 

shops is a significant contributor of pollutants at concentrations that may be reasonably 

expected to cause violation of water quality standards. Such a determination brings 

those facilities under coverage of the ISGP—regardless of the federal categories or 

Table 1—according to the ISGP’s definition of industrial activity. 

In 2009, Ecology made a policy decision to omit the limiting language from Table 

1 so as to apply permit requirements to all areas of transportation facilities where 

industrial activity occurs. Additionally, the determination that activity at such facilities is 

a significant contributor of pollutants supports Ecology’s interpretation. The scope of 

coverage at transportation facilities was explained to the public when the 2010 permit

was proposed and Ecology’s interpretation has remained consistent in the last two 

versions of the ISGP. 

Washington’s general permit program was established to be applicable to “the 

discharge of pollutants, wastes, and other materials to waters of the state” and designed 

to satisfy the requirements of both the CWA and the WPCA. WAC 173-226-010. The 

purpose of the CWA is to restore and maintain the chemical, physical, and biological 

integrity of the Nation’s waters. 33 U.S.C. § 1251. The purpose of the WPCA is to 

maintain the highest possible standards to insure the purity of all waters of Washington 
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and, to that end, require the use of all known and available methods by industry to 

prevent and control water pollution. RCW 90.48.010. Because Ecology’s interpretation 

does not conflict with the permit’s language nor the underlying purpose of the CWA and

the state’s WPCA, Ecology’s interpretation of its own permit is entitled to great weight.

Thus, even if the permit is ambiguous, we interpret it to mean that if a 

transportation facility requires coverage under the 2020 permit because it conducts 

vehicle maintenance, equipment cleaning, or airport deicing operations, coverage under 

the permit applies to the entire transportation facility, not just limited areas. 

We conclude that the PCHB erred as a matter of law. We reverse the PCHB’s 

order on summary judgment on legal issue 11 and instead hold that the 2020 permit 

applies to all areas of industrial activity at covered transportation facilities, not just the 

limited areas specified in EPA’s regulation. 

VIII

Because the PCHB granted summary judgment in favor of industry on legal issue 

11, the PCHB concluded legal issue 12 was moot. PSA does not assign error to 

PCHB’s ruling on legal issue 12 and instead argues that if this court reaches the issue, 

it should find that Ecology’s actions were reasonable and supported by substantial 

evidence. Conversely, industry asks us to remand to the PCHB for full consideration of 

legal issue 12. Industry relies on a recent decision by Division Three of this court, 

Burbank Irrigation District #4 v. Department of Ecology, 27 Wn. App. 2d 760, 534 P.3d 

833 (2023). We agree with industry. 

Under the APA, this court may grant relief if the agency has not decided all 

issues requiring resolution by the agency. RCW 34.05.570(3)(f). Courts have 
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interpreted this avenue of relief to require, as a threshold matter, that the agency decide 

an issue before this court can reach the merits of the issue on appeal. Suquamish Tribe

v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 156 Wn. App. 743, 775, 235 P.3d 812 

(2010). For this reason, we do not address the merits of PSA’s argument on legal issue 

12 because the PCHB did not decide it. 

Legal issue 12 asks whether the omission of limiting language in industrial 

activity for transportation facilities in Table 1 and the resulting expansion of coverage 

was unreasonable or unlawful by failing to comply with procedural requirements. 

Because we disagree with the PCHB’s interpretation of the 2020 permit, the question 

presented by legal issue 12 remains unresolved and is no longer moot. “Where an 

issue is not decided but remains relevant to the challenged action, the appropriate 

remedy is to remand for the agency to exercise its judgment and make a decision.” 

Burbank Irrigation, 534 P.3d at 845 (quoting Suquamish Tribe, 156 Wn. App. at 778).

We reverse and set aside the PCHB’s order on legal issues 11 and 12. We 

remand to the PCHB to, consistent with this opinion, grant summary judgment on legal 

issue 11 in favor of Ecology and PSA, and reach the merits of legal issue 12.12

Reversed and remanded. 

WE CONCUR:

 12 RCW 34.05.574.