### NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports
. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there.SUSAN L. CARLSON SUPREME COURT CLERK



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

SNOHOMISH COUNTY, KING COUNTY, and BUILDING INDUSTRY ASSOCIATION OF CLARK COUNTY, Respondents,
v. POLLUTION CONTROL HEARINGS BOARD, and WASHINGTON STATE DEPARTMENT OF ECOLOGY, and PUGET SOUNDKEEPER ALLIANCE, WASHINGTON ENVIRONMENTAL COUNCIL, and ROSEMERE NEIGHBORHOOD ASSOCIATION, Petitioners. NO. 92805-3

ENBANC

Filed 

### DEC 

## 29 2016

STEPHENS, I.-This case asks us to decide whether Washington's vested rights doctrine excuses compliancewiththerequirements ofa municipal stormwater permit. TheWashington State Department ofEcologyissued the third iteration ofaSnohomish County, etal. v. Pollution ControlHearings Ed., etal., 92805-3
municipal storm water permit pursuant to the Federal Water Pollution Control Act (also known as the Clean Water Act), 25 U.S.C. §§ 1251-1388, and the National Pollutant Discharge Elimination Systempermitting program established bythe act. Thepermitrequires the owners or operators oflarge andmedium municipal separate storm sewer systems to adopt and make effective a local storm water management program by June 30, 2015. The program may include local ordinances and "shall apply to all [development] applications submitted after July 1, 2015 and shall apply to [development] projects approved prior [to] July 1, 2015, which have not started constructionbyJune 30, 2020." CertifiedRecord (CR) at 26-27. Various permittees appealedthis portion ofthepermitto thePollution Control Hearings Board, claiming that it violated the vested rights doctrine because it compelled them to retroactively apply new storm water regulations to completed development applications. ThePollution Control Hearings Boardheldthat thevestedrights doctrine does not apply to storm water regulations permittees must implement as part of the National PollutantDischargeElimination Systempermittingprogram. The Court of Appeals reversed, finding that the vested rights doctrine excuses compliance with the storm water regulations because they are "land use control ordinances." Snohomish County v. Pollution ControlHr'gsBd., 192 Wn. App. 316,323, 368 P.3d

-2-Snohomish County, etal. v. Pollution Control Hearings Ed., et al., 92805-3

194 (2016). We reverse the Court ofAppeals and reinstate the Pollution Control Hearings Board's order. BACKGROUND FACTS AND PROCEDURALHISTORY Federal Clean WaterActandState WaterPollution ControlAct The CleanWaterAct's (CWA) purposeis to "restore andmaintainthe chemical, physical, and biological integrity ofthe Nation's waters." 33 U.S.C. § 1251(a). To achievethatpurpose, the CW A prohibitsthe discharge of pollutants from apoint source absent a National Pollutant Discharge Elimination System (NPDES) permit. 

### Id. §§ 1311(a), 1342(a). Large and medium municipal separate storm sewer systems (MS4s) are '"pointsource[s]'" andthereforerequire anNPDESpermit. Id. 

### § 1362(14). Congress authorizedtheEnvironmentalProtectionAgency(EPA)to delegatethe NPDES permittingprogramto the States. Id. § 1342(b). TheEPA delegated authority to the Washington State Department ofEcologyto implementtheNPDES permitting program in Washington. RCW 90.48.260(1). The legislature has recognized that Ecology has "[c]omplete authority to establish and administer" the program. 

### Id. at (l)(a).Thepermits Ecologyissuesmust complywiththe federal CWA standard andthe state water pollution control act (WPCA), chapter 90.48 RCW, standard. 33 U.S.C. § 1342(p)(3)(B)(iii); CR at 3996-97. The federal standardprovides that "[p]ermits for

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discharges from municipal storm sewers . . . shall require controls to reduce the discharge ofpollutants to the maximum extent practicable [(MEP)]." 33 U.S.C. 

### § 1342(p)(3)(B)(iii). The state standard provides that Ecology "shall
... incorporate permit conditions which require all known, available, and reasonable [treahnent] methods to control toxicants [(AKART)]." RCW 90.48.520. Ecology issued the first iterationofthe municipal stormwaterpermits in 1995, and the seconditerationin2007. CRat4057. The 2013Municipal Storm WaterPermits In order to give context to the primary issue in this case, it is helpful to briefly review the history ofthe third iteration ofthe permits (20 13 Permits), which include two phases ("2013 Phase I Permit" and "2013 Phase II Permit"). Id. at 10. The development ofthose permits was partly in response to a Pollution Control Hearings Board (Board) decision regarding the second iteration ofthe permits (2007 Permits). Several pennittees appealed the 2007 Permits to the Board. The Board found that the 2007 Permits "failed to reduce pollutants to the federal [MEP] standard, and without greater reliance on [low impact development (LID)], did not represent [AKART]" under state law. Id. at 4058. TheBoard directed Ecologyto modifythe 2007 Permits accordingly. Ecology did not amend and reissue the 2007 Pennits, but instead conducted studies to develop appropriate LID techniques for the next iteration ofthe

-4-Snohomish County, et al. v. Pollution ControlHearings Bd., et al., 92805-3
permits, i.e., the2013 Permits. Thelegislature subsequentlyamendedRCW 90.48.260, acknowledging the requirements and timelines for Ecology's implementation ofLID techniques in the next iteration ofthe permits. Ecology issued the third iteration ofthe permits on August 1, 2012. The 2013 Phase I Permit became effective on August 1, 2013 and is set to expire July 31, 2018. 

### !d. at 12. Thatpermit covers discharges from MS4s, includingthe cities ofT acoma and Seattle, as well as Snohomish, Clark, King, and Pierce Counties (collectively permittees). "Special Condition S5" requires permittees to implement a storm water management program. Condition S5(C)(5) requires the storm water management programto includeminimumperformancemeasures to preventandcontrol stormwater runoff from new development, redevelopment, and construction activities. The minimum performance measures include mandatory LID techniques for development projects that meet certain thresholds and "shall be included in ordinances or other enforceable documents adopted bythe local government."

### !d. at 26. Condition S5(C)(5)(a)(iii) (Condition) provides that permittees must adopt and make effective a storm water management program that meets the 2013 Phase I Permit's requirements by June 30, 2015. 

### !d. at 27. The second sentence of that Condition is at issue in this case and provides: "The local program ... shall apply to all applications submitted after July 1, 2015 and 

### shall apply to projects approved

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prior [to] July 1, 2015, which have notstarted construction byJune 30, 2020." Id. (emphasis added). 1 Appealof the 2013 Phase!MunicipalStorm WaterPermit Pierce Cmmty, Snohomish County, King County, and the Building Industry Association (BIA) ofClark County separately appealed portions ofthe 2013 Phase I Permit to the Board (Phase I appeal). The cities of Seattle and Tacoma and the Washington State Department ofTransportation (WSDOT) intervened as appellants. Puget Soundkeeper Alliance, Washington Environmental Council, and Rosemere Neighborhood Association (collectively Alliance) intervened as respondents. The WSDOT withdrew from the Phase I appeal, and otherparties separately appealed the 2013 Phase II Permit (Phase II appeal), which is not at issue in this case. The Board consolidated the appeals in November 2012, and subsequently consolidated certain issues from the Phase I and Phase II appeals in January 2013. Various parties moved for summaryjudgment on the Phase I and Phase II appeals issues. The Board issued three orders on summaryjudgment,but onlyits October2, 2013 orderis at issue inthis
case. Clerk's Papers (CP) at 23, 258, 424.

1 This is the original language ofthe Condition. In its October 2, 2013 order on sununary judgment, however, the Board directed Ecology to replace the phrase "projects approved" with "application[s] submitted" because otherwise the Condition failed to address the situation where an application was submitted before, but approved after, July 1, 2015. CR at 4011-12. -6-Snohomish County, et al. v. Pollution Control Hearings Bd., etal., 92805-3

In its order, the Board concludedthat stormwaterregulations requiredunderthe 2013 Phase I Permit are not "landuse control ordinances" governed by Washington's vesting statutes. CRat 3998. Itofferedfourreasons for this conclusion. First, the 2013 PhaseIPermitimplements state andfederal laws to address waterquality, notto control land use. !d. at 3998-99. Second, it is the province ofthe legislature to define what constitutes a "land use control ordinance," and the legislature has never defined environmental regulations administered by Ecology as such. !d. at 4002. Third, the legislature acknowledged the use ofmandatory LID techniques in the 2013 Permits when it amendedRCW90.48.260 and directed Ecologyto implementtheuse ofLID techniques in the 2013 Phase II Permit. !d. at 4003. Lastly, mLmicipalities must comply with state water quality laws and public policy counsels against allowing developmentprojectsto operate out ofcompliance with such laws. !d. at 3999, 4005. The Board held a trial on the remaining issues and entered its final decision in March 2014. Snohomish County, King Cmmty, and BIA ofClark Cmmty separately appealed the Board's order on summaryjudgmentto Thurston County Superior Court. Each filed an application for direct review and request for a certificate ofappealability withthe Board. The Thurston County SuperiorCourt consolidatedthe appeals, andthe Boardissued a certificate ofappealability. Snohomish County, King County, and BIA of Clark County then jointly sought direct review by Division Two ofthe Court of

-7-Snohomish County, et al. v. Pollution ControlHearings Bd., et al., 

### 92805-3 Appeals. Thatcourt accepted directreview oftheBoard's orderon summaryjudgment. Ruling Accepting Direct Review, Snohomish County v. Pollution ControlHr 'gs Bd., 

### No. 46378-4-II, at 3 (Wash. Ct. App. Sept. 5, 2014). The Court of Appeals Opinion 

### In a divided opinion, the Court of Appeals reversed the Board's order. Snohomish County, 

### 192 Wn. App. at 323. The majority held that storm water regulations are "'landuse control ordinances"' because they "restrain[]" or "direct[]" the use ofland. Id. 

### at 332-33. In determining what constitutes a "land use control ordinance," the majority relied on New Castle Investments v. City of LaCenter, 

### 98 Wn. App. 224, 989 P.2d 569 (1999), WestsideBusinessPark, LLCv. Pierce County, 

### 100 Wn. App. 599,5 P.3d 713 (2000), and Phillips v. King County, 

### 136 Wn.2d 946, 968 P.2d 871 (1998). Snohomish County, 

### 192 Wn. App. at 331-32. From these cases, the majority derived the rule that a state-mandated environmental regulation is a "land use control ordinance[]" so long as it exerts a restraining or directing influence over land use. Id. 

### at 336, 338. The majority then rejected all six of Ecology's arguments regarding the vested rights doctrine, as well as its argument regarding federal preemption. On the latter issue, the majority held that the federal CWA does not preempt the vesting statutes because Congress provided states flexibility in adopting storm water regulations. Id. 

### at 343. That Congress used the

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word "practicable" in the federal MEP standard, didnot mandate Ecology's timeline for reducing the discharge of pollutants to the MEP, and delegated the NPDES program to approved state agencies suggested that it intended "implementation of CWA objectives [to] occur within the framework of state law." Id. at 343-44. Reading the vesting statutes as part ofthis framework, the majority held that the CWA and the vesting statutes exist in harmony. Id. at 345. JudgeThomas Bjorgen dissented, concludingthatthe CWApreempts the vested rights doctrine, and that the vesting statutes and the state WPCA stand in conflict. Id. at 345, 350. As to the first point, the dissent noted that no party had appealed the Board's conclusion that LID techniques constitute the reduction ofpollutants to the MEP, as required by the CWA. Id. at 348-49. Applying the vested rights doctrine would thus frustrate the purposes of the CWA by allowing developers to evade compliance with the federal MEP standard. Id. at 349. As to the second point, the dissent argued that the vesting statutes must yield to the WPCA because the vesting statutes are general rules, while the WPCA is aimed at protecting a specific resource (state waters) from a specific threat (pollution). Id. at 352. Ecology and Alliance filed separate petitions for review by this court, both of whichwegranted. Snohomish Countyv. Pollution ControlHr 'gsEd., 185 Wn.2d 1026, 377 P.3d 712 (2016).

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### 92805-3

ANALYSIS 

### This court reviews the Board's orders under the Washington Administrative Procedure Act, chapter 34.05 RCW. See 

### RCW 34.05.570(l)(b), .518(1); Cornelius
v. Dep 't of Ecology, 

### 182 Wn.2d 574, 584-85, 344 P.3d 199 (2015). Review is confinedto therecordbeforetheBoard. RCW 34.05.558; Portof Seattlev. Pollution Control Hr'gs Bd., 

### 151 Wn.2d 568, 587, 90 P.3d 659 (2004). "The burden of demonstrating the invalidity of agency action is on the party asserting invalidity." RCW 34.05.570(1)(a). This court will grant relief"where the agency has erroneously interpreted or applied the law, the agency's order is not supported by substantial evidence, or the agency's decision is arbitrary and capricious." Postema v. Pollution ControlHr'gs Bd., 

### 142 Wn.2d 68, 77, 11 P.3d 726 (2000) (citing RCW 34.05.570(3)). We review questions oflaw and an agency's application ofthe law de novo, but we accord an agency's interpretation ofthe law great weight where the statute is ambiguous and is within the agency's special expertise. Cornelius, 

### 182 Wn.2d at 585; Port of Seattle, 

### 151 Wn.2d at 587. Here, the Board's rulings were made on summary judgment, which we also review de novo. Cornelius, 

### 182 Wn.2d at 585. The Board issued a summary judgment order ruling that the stonn water regulations mandated under the 2013 Phase I 

### Permit are environmental regulations,

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rather than "land use control ordinances," and are thus not subject to the vesting statutes. CRat 3998-99. This casetherefore asks us to determinewhetherourvested rights doctrine precludes implementation ofthe 2013 Phase I Permit's storm water managementprogram. Washington's VestedRights Doctrine Washington's vested rights doctrine employs a '"date certain'" standard for vesting. Town ofWoodway v. Snohomish County, 180 Wn.2d 165, 172, 322 P.3d 1219 (2014). That standard "entitles developers to have a land development proposal processed under the regulations in effect at the time a complete building permit application is filed, regardless ofsubsequent changes in zoning or other land
useregulations." AbbeyRd. Grp., LLCv. City of BonneyLake, 167 Wn.2d 242, 250, 218 P.3d 180 (2009) (plurality opinion). "Washington's rule is the minority rule," and it offers greaterprotectionto developers thantherule applied in other states. !d. Washington's vested rights doctrine originated at common law, but "is now statutory."2 Town ofWoodway, 180 Wn.2d at 173. The legislature codified the doctrine with regard to building permits and subdivision applications in 1987 and

2 Amicus BIA ofWashington asks thls courtto affinn "the constitutional foundation ofthe vested rights doctrine" and clarify that "the nature ofthe [doctrine] has not become purely statutory." Br. ofAmicus Curiae BIA ofWash. at 4. Given that the parties to this case rely solely on the vesting statutes, we confine our review to determining the scope of the statutes and do not address thls broader issue. -11-Snohomish County, et al. v. Pollution Control Hearings Bd., et al., 92805-3
development agreements in 1995. RCW 19.27.095 (building permits); RCW 58.17.033 (subdivision applications); RCW 36.70B.l80 (development agreements). RCW 19.27.095(1) reads: A valid and fully complete building pennit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinancein effect atthe time ofthe application, and the zoning or otherland use control ordinances in effect on the date ofapplication. RCW 58.17.033(1) is substantiallythe same, but provides: A proposed division ofland
... shall be consideredunder the subdivision or short subdivision ordinance, and zoning or otherlanduse control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision, or short plat approval of the short subdivision, has been submitted to the appropriate county, city, or town official. What constitutes a "land use control ordinance" under RCW 19.27.095 and RCW 58.17.033 is the main inquiryinthis case. AlthoughRCW 36.70B.l80 is also
a vesting statute, the parties do not heavily rely on it because it does not utilize the
same language as RCW 19.27.095 and RCW 58.17.033.3 We thus limit our discussion to RCW 19.27.095 and RCW 58.17.033.

3 RCW 36.70B.180 provides in relevant part: A development agreement and the development standards in the agreement govern during the term ofthe agreement, or for all or that part ofthe buildout period specified in the agreement, and may not be subject to an amendment to a zoning ordinance or development standard or regulation or anew zoning ordinance or development standard or regulation adopted after the effective date ofthe agreement. -12-Snohomish County, eta!. v. Pollution ControlHearings Bd., eta!., 92805-3

The Parties' Contentions Ecology andAllianceboth argue thatthevestedrights doctrine does not apply to the development applications in this case, but for slightly different reasons. Both argue that the storm water regulations are focused on environmental outcomes, not particular land uses. Suppl. Br. ofPet'r Ecology at 11; Pet'rs Puget Soundkeeper All., Wash. Envtl. Council & RosemereNeigh. Ass'n's Suppl. Br. at 10 (hereinafter Suppl. Br. of Pet'rs All.). Both note that while the vested rights doctrine favors development interests, itis limitedin scope. Ecology'sPet. for Review at 1-2; Puget SoundkeeperAll., Wash. Envtl. Council & Rosemere Neigh. Ass'n's Pet. for Discr. Review at 10 (hereinafterAll.'s Pet. for Review). Thevesting statutes apply onlyto "'land use control ordinances."'4 Ecology's Pet. for Review at 14 (quoting RCW 19.27.095(1); RCW58.17.033(1)). To detennine whether aregulation is a "landuse control ordinance," Alliance suggests looking to the regulation's purpose. Suppl. Br. ofPet'rs All. at 10. Alliance concludes that storm water regulations adopted to complywith the NPDES permittingprogram are not '"landuse control ordinances'" becausethey do '"notdictate particularuses oflandbutrequire[] onlythat, however the landis used, damage to the environmentiskeptwithin prescribedlimits."' All.'s

4 As discussed above, the vesting statutes also apply to "development standard[s] or regulation[s]." RCW 36.70B.l80. Because the parties did not analyze this statute in their briefs, we refer only to "landuse control ordinances" as used in RCW 19.27.095 and RCW 58.17.033. -13-Snohomish County, et al. v. Pollution ControlHearings Bd., etal., 

### 92805-3

Pet. for Review at 12 (quoting Rosemere Neigh. Ass'n v. Wash. State Dep't of Ecology, No. 10-013, 2010 WL 3420570, at *8 (Wash. Pollution Control Hr'gs Bd. Aug. 26, 2010)). Ecology's argument is similar, but it focuses more on legislative intent. Ecology contends that "the vesting statutes are intended to limit the exercise of municipal discretion." Ecology's Answer to Amici Curiae Brs. ofMaster Builders Ass'n ofKing & 

### Snohomish Counties, Pac. Legal Found., Wash. Realtors & 

### BIA of Wash. at 6 (hereinafter Ecology's Answer to Amici Curiae Brs.). Because this case involves state, ratherthan municipal, action, Ecology argues that thevesting statutes do not apply. Id. at 8. To support this argument, Ecology emphasizes that the legislature gave Ecology "'[c]omplete authority to establish' timing requirements" for the NPDES permits. Ecology's Pet. for Review at 16 (alteration in original) (quoting RCW 90.48.260(l)(a)). This case is thus unique because "[t]he [S]tate has created the framework the local programs must comply with, and Ecology must review and approve the local programs." Ecology's Answerto Amici Curiae Brs. at 8. Accordingly, developers do not have "a vested right to discharge polluted stormwater in violation ofstate and federal water pollution laws." 

### I d. at 1. Ecology also contends thatthe legislaturetacitlyapprovedEcology'smethods in the 2013 Phase I Permit when it amended RCW 90.48.260. Ecology's Pet. for

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Review at 15. In RCW 90.48.260(3)(b)(i), the legislature directed Ecology to implement the use ofLID techniques in the 2013 Phase II Permit. Ecology posits that although this provision concerns the 2013 Phase IIPermit, it is relevant because thelegislature couldhave directedEcologyto implementthe stormwaterregulations according to the vesting statutes, but it chose not to. 

### !d. Snohomish County, King County, and BIA of Clark County each filed supplemental briefs in this court. Master Builders Association of King and Snohomish Counties, Pacific Legal Foundation, BIA of Washington, and Washington Realtors each filed amicus briefs in this court. While some nuances exist, these entities essentially make the same argument: the 2013 Phase I Permit directs permittees to act in a manner contrary to state law, as it mandates permittees to retroactively apply storm water regulations to development projects for which a completed application has been submitted. Suppl. Br. ofResp't Snohomish County at 1; Suppl. Br. ofResp't King County at 4-5; BIA ofClark County's Suppl. Br. at 4-5. These entities contend thatWashington courts have set forth the propertest for determining what constitutes a "land use control ordinance." Suppl. Br. ofResp't Snohomish County at 5; Suppl. Br. ofResp't King County at 7-8; BIA of Clark County's Suppl. Br. at 5. That test determines whether a regulation exerts a '"restraining or directing influence ofland use"' and affects '"the physical aspects

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### ofdevelopment."' Suppl. Br. ofResp't Snohomish County at 5 (quoting Westside, 

### 100 Wn. App. at 607; New Castle, 

### 98 Wn. App. at 237; Suppl. Br. ofResp't King County at 7-8; BIA ofClark County's Suppl. Br. at 5. These entities dispute Alliance's argument that the underlying purpose ofthe regulation is controlling. Suppl. Br. ofResp't Snohomish County at 4; Suppl. Br. of Resp'tKing Countyat 6; BIA ofClarkCounty's Suppl. Br. at 4. Rather, therelevant consideration is the practical effect the regulation has on a developer's permit application. Suppl. Br. ofResp't Snohomish County at 4; Suppl. Br. ofResp'tKing County at 6; BIA ofClark County's Suppl. Br. at 4. Accordingly, environmental regulations are not exempt from the definition of "land use control ordinance." Suppl. Br. ofResp't Snohomish County at 5 n.5; Suppl. Br. ofResp't King County at 7-8; BIA of Clark County's Suppl. Br. at 5. Despite their environmental justification, the storm water regulations are "land use control ordinances" because complying with them will compel developers to modify their site plans. Suppl. Br. ofResp't Snohomish County at 5; Suppl. Br. ofResp't King County at 9; BIA of Clark County's Suppl. Br. at 4. The legislative history and purpose of the vesting statutes, as well as our precedent, favor Ecology's argument and theBoard'sruling. Those sources indicate that the vested rights doctrine grew out ofa concernthat municipalities were abusing

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### theirdiscretionwithrespect to landuse and zoning rules. That concern is notpresent in the 2013 Phase I Permit, as the State has mandated 

### local governments to implement a storm water management program that may take the form of storm water regulations. Accordingly, we reverse the Court ofAppeals and reinstate the Board's order finding that the storm waterregulations permittees must implement as part ofthe larger NPDES permitting program are not "land use control ordinances" under the vesting statutes. TextualAnalysis of the VestedRights Statutes 

### Both RCW 19.27.095 and RCW 58.17.033 contain three relevant sections. The first section, quoted above, states that a "valid and fully complete" application vests to the "zoning or other land use control ordinances" in effect on the date of application. RCW 19.27.095(1); RCW 58.17.033(1). The second section indicates that "[t]he requirements for a fully completed application shall be defined by local ordinance." RCW 19.27.095(2); RCW 58.17.033(2). The last section states that "[t]he limitations imposed byth[ese] section[s] shall not restrict conditions imposed under chapter 43.21C RCW [State Environmental Policy Act (SEPA)]." RCW 19.27.095(6); RCW 58.17.033(3). The structure ofthe vesting statutes suggests that
a developer's rights vest withrespect to therequirements for a complete application.

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See also Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 284, 943 P.2d 1378 (1997) (concluding that "what is vested is what is sought in the application"). The legislature has never defined the term at issue in this case: "landuse control ordinance." Without a clear meaning ofthis term, the vesting statutes are ambiguous, and welookto legislative history and interpretive case law to discern legislative intent. Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014). Ourrule favoring an agency's interpretation of its own regulations, as well as the legislature's actions regarding implementation ofLID techniques, also guide us. SeePostema, 142 Wn.2d at 86; Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. 

### Co., 105 Wn.2d 778,789,719 P.2d 531 (1986). LegislativeHistory The legislative history ofthe vesting statutes is limited, but telling. The Final Bill Report on the bill enacting RCW 19.27.095 and RCW 58.17.033 states: Washington State has adhered to the current vested rights doctrine since the Supreme Court case ofState ex rei. [City oj] Ogden v. Bellevue, 45 Wn.2d 492[, 275 P.2d 899] (1954). The doctrine provides that apartyfiling atimely and sufficiently complete building permit application obtains a vested right to have that applicationprocessed according to zoning, landuse and building ordinances in effect at the time ofthe application. The doctrine is applicable if the permit application is sufficiently complete, complies with existing zoning ordinances and building codes, and is filed during the period the zoning ordinances under which the developer seeks to develop are in effect. If a developer complies with these requirements, a project cannot be obstructedbyenacting new zoning ordinances orbuilding codes. WestMain Associates v. [Ciry oj] Bellevue, 106 Wn.2d 47[, 720 P.2d 782] (1986).

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FINALB. REP. ON SUBSTITUTE S.B. 5519, 50th Leg., Reg. Sess. (Wash. 1987). The references to Ogden and West Main suggest that in codifying the vested rights doctrine, the legislature was concerned with protecting developers' expectations under municipal zoning and land use ordinances. In Ogden, a developer brought a mandamus action to compel the cityto issue abuilding permit afterthe city "exercised [its] discretion" to deny the application "notwithstanding [the application] met the requirements of [the city] ordinance." 45 Wn.2d at 494. This court reasoned that the developer's rights vested when she submitted a complete building permit application, andthat "[t]he acts ofadministering a zoning ordinance do not go backto the questions of policyanddiscretionwhichwere settledatthetime ofthe adoption ofthe ordinance." Id. at 495. The legislature's reliance on this case is important for two reasons. First, Ogden involved an action in mandamus, which "compels perfonnance ofa duty." In
re Pers. Restraint of Dyer, 143 Wn.2d 384, 398, 20 P.3d 907 (2001). Second, it referenced administrative acts by local authorities according to the terms oflocal ordinances. Ogden suggests that once a developer's rights vest, local ordinances must apply to all developers alike. Our more recent precedent supports this proposition, noting that the vested rights doctrine is "rooted in notions offundamental fairness." AbbeyRd. Grp., 167 Wn.2d at 250. Thelegislature'sreliance on Ogden thus suggests

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that the legislature understood the vested rights doctrine as curbing local discretion where none was warranted. Similarly, the legislature's reference to West Main indicates that the vesting statutes pertainto local discretion involving zoning andlanduse ordinances. In West Main, this court held that a city ordinance improperly interfered with the vesting doctrine because the city went beyond merely establishing guidelines, instead denying developers the ability to vest rights until after a series of pennits was obtained. 106 Wn.2d at 52. Notably, the city inappropriatelyreserved for itself"the almostunfettered abilityto changeits ordinances." !d. at 53. This concernregarding local discretion can also be found inErickson &Associates, Inc. v. McLerran, where
we stated "the [vested rights] doctrine places limits on municipal discretion." 123 Wn.2d 864, 873, 872 P.2d 1090 (1994) (emphasis added). 

### A keywaythe vesting statutes protect developers' interests against abuses of local discretion is byrequiring that all the conditions for a complete application be set out by local ordinance. See RCW 19.27.095(2); RCW 58.17.033(2). Notably, the originally proposed vesting statutes did not allow SEPA requirements to be reiterated in a local ordinance, underscoring that these requirements are not part of the local requirements for submitting a complete application. 5 The separate

5 The Senate Bill Report on the bill enacting RCW 19.27.095 and RCW 58.17.033 states that "[t]he sections preventing local governments from including SEPA conditions -20-Snohomish County, etal. v. Pollution ControlHearings Ed., et al., 92805-3

identification ofSEPA conditions underscores that the legislature understood them to be distinct from the sort oflocal zoning and land use rules required to be set forth by ordinance, but ultimately did not want to prohibit counties from including them in the interest ofproviding notice to permit applicants. There is no suggestion that the mandates offederal and state environmental laws are "local" in the sense that municipalities have the discretion to decide whether applicants must comply. The onlylocal discretion is to include these mandates in a local ordinance. The express carve out of "conditions imposed under chapter 43.21C RCW" further indicates that the legislature did not intend vesting to preclude enforcement of federal and stateenvironmental laws. RCW 19.27.095(6); RCW 58.17.033(3); seealso FINALB. REP. ON SUBSTITUTE S.B. 5519 (noting inclusion ofthis provision). There are two possible ways to view this limitation on vesting. On the one hand, it could suggest the legislature intended not to allow vesting to restrict an array of statedirected environmental regulations. On the other hand, it could suggest that only SEPA-mandated regulations are exempted. We believe the former interpretation is accurate when the carve out provision is considered in context. At the time the vesting statutes were enacted, SEPA was the statutory scheme containing relevant environmental regulations; the NPDES permitting program did not yet exist.
in ordinances that define the requirements for a fully completed application are stricken." S.B. REP. ON SUBSTITUTE S.B. 5519, 50th Leg., Reg. Sess. (Wash. 1987). -21-Snohomish County, et al. v. Pollution ControlHearings Ed., etal., 92805-3
Ecology issued the first NPDES permits in 1995, while the legislature codified the vesting statutes in 1987. CR at 4057; RCW 19.27.095; RCW 58.17.033. In any event, SEPA enumerates "[w]ater/stormwater" as one of its categories, which suggests that state actionspertainingto stormwaterwereintended to be exemptfrom the vesting statutes. WAC l97-ll-444(2)(d)(vii). 6 Development of the VestedRightsDoctrine in CaseLaw Case law discussing the vesting statutes supports the statutory interpretation discussed above. The parties primarilyrely onNew Castle, Westside, andPhillips. In New Castle, the court held that a city ordinance imposing a transportation impact fee was not a "land use control ordinance" under the vesting statutes because the ordinance "merely affect[ed] the ultimate cost ofthe development." 98 Wn. App. at 232. The court suggested that a "landuse control ordinance" was an ordinance that exerts a "restraining or directing influence" over land use. Id. at 229. Had the fee "affect[ed] the physical aspects of development (i.e., building height, setbacks, or sidewalk widths) or the type of uses allowed (i.e., residential, commercial, or industrial)," it wouldhavebeen "subjectto the vested rights doctrine." Id. at 237.

6We do not entertainEcology's argument thatit could use SEPA directly to enforce the requirements at issue here. Ecology did not raise this argument below, and the Court ofAppeals refused to address it. We acknowledge the connectionbetween SEPA and the permit-based storm water regulations only because it informs our interpretation of the scope ofthe exemption inthe vesting statutes. -22-Snohomish County, et al. v. Pollution ControlHearings Ed., et al., 92805-3

Thecourtin Westside adoptedthe definitionof"landusecontrolordinance" from New Castle. 100 Wn. App. at 607. There, the court held that the developer's '"bare bones"' application vested to the county's storm water drainage ordinances in effect whenthedeveloper submittedthe application. !d. at 602, 609. Becausethe stormwater drainage ordinances were a "mandatory prerequisite" to permit approval, the court concluded that the ordinances were "land use control ordinances." !d. at 607. In so holding, the court also relied onthis court's decision inPhillips. !d. InPhillips, this court rejected landowners' inverse condemnation claim against the county for property damage resulting from the county's approval ofa developer's permitunderregulations existing atthetime ofthedeveloper's application. 136 Wn.2d at 969. This court stated: Our conclusion on this issue comports with the practical realities of the vested rights doctrine
.... Under current law, as required by the subdivision statute, RCW 58.17.033, a subdivision application is reviewed under the codes, ordinances and regulations in effect at the time a complete application for preliminary approval is filed. Since the application for the Autumn Wind project was submitted in 1988, the plans for the development were reviewedpursuantto the 1979 SurfaceWaterDesignManual. As noted above, a new surface water drainage code was adopted by King County in 1990, but it did not apply to the Autunm Wind project because the project was vested to the prior code under RCW 58.17.033. Id. at 963 (citations omitted). Giventhis language, the courtin Westside concluded that "even if dicta, because the Phillips court plainly considered whether surface water drainage ordinances are within the ambit ofthe vested rights doctrine
... we are not

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preparedto saythat stormwaterdrainage ordinances are not subjectto thevestingrule." 100 Wn. App. at 607-08. These cases do not stand for the proposition that the vesting statutes trump application ofall storm waterregulations. As Ecology correctly notes, the present case is distinguishable because the storm water regulations in the 2013 Phase I Permit are the result of state, not local, action. In 

### New Castle, Westside, and 

### Phillips, the ordinances atissue hadbeen adoptedbya cityor countyas a matteroflocal regulation. 

### See also Lauer v. Pierce County, 173 Wn.2d 242, 248, 263, 267 P.3d 988 (2011) (building permit applicants' rights did not vest to the 

### county's ordinance requiring riparian buffer because the applicants submitted knowing misrepresentations of fact); 

### Julian v. City ofVancouver, 161 Wn. App. 614,626-28,255 P.3d 763 (2011) (landowners' rights vested when they submitted their preliminary short subdivision application, and thus a former version of the 

### city's municipal code concerning riparianbuffer areas applied). Whilethe permittees in thepresent caseincludevarious cities and counties, the storm waterregulations are nottruly local becausethe State has directed local governments to implement the regulations in order to comply with the NPDES permitting program. The storm water regulations are mandatory state regulations, rather than discretionary local regulations. The vesting doctrine therefore does not excuse compliance with the requirements ofthe 2013 Phase I Permit.

-24-Snohomish County, et al. v. Pollution ControlHearings Bd., etal., 92805-3
Admittedly, Westside involved storm water drainage requirements the county adopted "in part as a response to the federal [CWA]." 100 Wn. App. at 601. The county, however, developed the requirements on its own rather than as a requirement imposed by the State through a municipal storm water permit. Westside is thus distinguishable from thepresent case. We do not findPhil/ipsparticularlyhelpful, as the case didnotturn onthevested rights doctrine. See State v. Carneh, 153 Wn.2d 274, 286 n.3, 103 P.3d 743 (2004) (noting that because the court in a prior case mentioned a statute only in passing and did not specifically analyze it, the case could not be relied on for its conclusions regarding the statute). Nor has this court described Phillips as involving the interpretation ofthe vestedrights doctrine, save one instance. InLakeyv. PugetSound Energy, Inc., we stated that "[w]e did use the 'then existing' language, but only because [Phillips] involved the vested rights doctrine." 176 Wn.2d 909, 930,296 P.3d 860 (2013) (citing Phillips, 136 Wn.2d at 961). This seems a passing remark,
as Lakey involved an entirely different issue. See Carneh, 153 Wn.2d at 286 n.3. We do not rely onLakey to guide our interpretation ofthe vesting statutes. Though the parties do not discuss them at length, we believe it is important to distinguish three other cases involving the interaction between SEPA and the vesting statutes. In Town ofWoodway, this court held that the "vested rights doctrine applies

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### 92805-3

to permit applications filed under [Growth Management Act (GMA), chapter 36.70A RCW,] plans andregulations
...later found to be noncompliantwiththe [SEPA]." 180 Wn.2d at 169. In that case, we relied on the plain language ofthe GMA, which stated that '"[a] detennination ofinvalidityisprospective in effect

### and
...does notapply to a completed development permit application."' Id. 

### at 175 (quoting RCW 36.70A.302(2)). In 

### contrast to the GMA, the 2013 Phase I Permit at issue does not contain similar language regarding the application of vesting and the exclusive remedies for SEPA violations. InAdams v. Thurston County, 

### the Court ofAppeals stated that "[t]he County must base any condition or denial on SEPA policies adopted priorto the application
or submittal date, because vesting applies to those policies as well." 70 Wn. App. 471, 481 n.ll, 855 P.2d 284 (1993). For this proposition, Adams 

### cited Victoria Tower Partnership v. City of Seattle, 

### 49 Wn. App. 755,761,745 P.2d 1328 (1987) ("[T]he vested rights doctrine is equally appropriate for SEPA ordinances."). We concludeAdams 

### and Victoria Tower 

### are mistaken and must be disapproved for two
reasons. First, as this courtinPhillips 

### noted, "[t]hevesting statute does not abrogate the requirements of SEPA." 136 Wn.2d at 963 n.5. Second, Victoria Tower 

### was decided in 1987, the same year the legislature enacted the vesting statutes. Accordingly, "[e]ven if Victoria Tower 

### can be read to expand the common law

-26-Snohomish County, et al. v. Pollution ControlHearings Bd., et al., 

### 92805-3 vesting doctrine to [masteruse permit] applications, ithas been supersededbyRCW 19.27.095(1)." AbbeyRd. Grp., 

### 167 Wn.2d at 254. Deference to theBoardand to Ecology 

### We accord an agency's interpretationofthe law greatweightwherethe statute is ambiguous and is within the agency's special expertise. Cornelius, 

### 182 Wn.2d at 585; Port of Seattle, 

### 151 Wn.2d at 587. We also defer to an agency's interpretation of its own regulations. Postema, 

### 142 Wn.2d at 86. Given that the legislature designated Ecology as the agency to regulate the State's water resources, RCW 43.21A.020, "Ecology's interpretation ofrelevant statutes ... is entitled to great weight." Port ofSeattle, 

### 151 Wn.2d at 593. The Board's review of Ecology's actions is also entitled to deference. See id. 

### at 592-93. The Board has ruled that requirements imposed by NPDES storm water permits are not "land use control ordinances" subject to state vesting laws. CR at 3999; Cox v. Dep't of Ecology, 

### No. 08-077, 2009 WL 542494, at *5, *4 (Wash. Pollution Control Hr'gs Bd. Feb. 26, 2009) (finding that a "Construction Stonn water General Permit" (CSGP) was not a "land use control ordinance" because "local governments are not required to review and approve (nor do they have any authority to do so)

### the conditions or 

### application ofthe CSGP prior to approval ofthe subdivisionorplat" (emphasis added)). Similarly, theBoardhas rejected application

-27-Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3

of Westside, noting that it "is not a waterpollution control permit case; it involved a local government's storm drainage ordinance." RosemereNeigh. Ass 'n v. Dep 't of Ecology, No. 10-013, 2010 WL 3420570, at *7 (Wash. Pollution Control Hr'gs Bd. Aug. 26, 2010) (emphasis added). In rejecting reliance on Westside, the Board has noted "thebetter analysis for purposes ofthe vesting issue entails an examination of the source ofauthority for the requirement as well as its purpose." Jd. at *8 (emphasis added). TheBoard's analysis aligns with our holding in thepresent case. LegislativeAction Surrounding the 2013 Permits The legislature's actions with regard to implementation of Ecology's LID requirements also support ourholding. "Wepresumethe legislatureis 'familiarwith judicial interpretations ofstatutes."' State v. Ervin, 169 Wn.2d 815, 825, 239 P.3d 354 (2010) (quoting State v. Babic, 140 Wn.2d 250,264, 996 P.2d 610 (2000)). We also presume amendments are consistent with previousjudicial decisions, and we may conclude inaction indicates legislative approval ofthem. Id.; Hangman, 105 Wn.2d at 789. The legislah1re directly addressed the inclusion ofLID requirements in the 2013 Permits in three separate instances. First, the legislah1re amended RCW 90.48.260 to direct Ecology to implement the use ofLID techniques in the 2013 Phase IIPermit. RCW 90.48.260(3)(b)(i). Second, the Final Bill Report onthebill

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enacting the amendment to RCW 90.48.260 states that "[t]imeframes for the effect ofcertain requirements within the updated permit are specified, including for [LID] requirements." FlNALB. 

### REP. ONSECONDENGROSSED SUBSTITUTE S.B. 6406, at4, 62d Leg., 1st Spec. Sess. (Wash. 2012). Third, in 2012 and 2013, the legislature appropriated funds for Ecology to provide LID training to 2013 PhaseII Permittees. THIRD ENGROSSED SUBSTITUTE S.B. 5034, 

### § 302(3), at 118-19, 63d Leg., 2d Spec. Sess. (Wash. 2013); THIRD ENGROSSED SUBSTITUTEH.B. 2127, 62d Leg., 2d Spec. Sess. (Wash. 2012). Itis thus apparent that the 2013 Phase I Permit'srequirements, including the Condition at issue in this case, were known to the legislature. The legislature's amendment to RCW 90.48.260 is consistent with the Board's interpretation ofthe 2013 Phase I Permit, and it appears the legislaturehas approved ofthis interpretation. SeeErvin, 169 Wn.2d at 825; Hangman, 105 Wn.2d at 789. Doctrine of Finality of Land Use Decisions Snohomish County urges us to consider the doctrine offinality, describing this
as an alternative issue the Court of Appeals did not reach. Suppl. Br. of Resp't Snohomish County at 13; Snohomish County's Answer to Ecology's & AlL's Pets. for Review (hereinafter Snohomish County's Answer to Pets. for Review) at 16. Snohomish County argues that building and development permits are "irrefutably valid" ifnot challenged under the Land Use Petition Act (LUPA), chapter 36.70C

-29-Snohomish County, etal. v. Pollution ControlHearings Bd., etal., 92805-3


### RCW, within 21 days ofbeing issued. Snohomish County's Answer to Pets. for Review at 16-17. Alliance responds that permittees "should have conditioned [development] permits issued after [August 1, 2012] to ensure that applicants were
on notice ofthe timing restriction." Puget Soundkeeper All., Wash. Envtl. Council & 

### Rosemere Neigh. Ass'n's Reply in Support ofPet. for Discr. Review (hereinafter AlL's Reply in Support ofPet. for Review) at 3; see also 

### Dep't ofEcology's Reply to Snohomish County's Answer to Pet. for Review (hereinafter Ecology's Reply in Support ofPet. for Review) at 2-3. That way, permittees would not have to amend
orwithdraw a development permit that was already issued. AlL's Reply in Support ofPet. for Review at 3; Ecology's Reply in Support ofPet. for Review at 2. We conclude that the Condition does not violate the doctrine of finality of land use decisions given the Board's findings and the statutory language ofLUPA. The Board has "consistently rejected arguments that state law doctrines of vested rights andfinality of land use decisions 

### control and limit the application of water qualityrequirements developed underboth state and federal law." CR at4000 (emphasis added). In its summaryjudgment order, the Board concluded that the 2013 Phase I Pennit does not violate the doctrine offinality ofland use decisions. Id. at 4007. It 

### correctly noted that the vested rights doctrine and the doctrine of finality ofland use decisions are "closely related," and that a developer does "not

-30-Snohomish County, et al. v. Pollution ControlHearings Bd., et al., 92805-3

have a legitimate expectation that pollution control measures will be frozen in time to outdated or ineffective measures." 

### !d. LUPA's purpose is "timelyjudicial review." RCW 36.70C.010. Itprovides
a 21-day deadline to appeal1and use decisions ofloca1jurisdictions. Habitat Watch
v. Skagit County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005). Snohomish County's argument is misplaced because no party is challenging any land use decision. Rather, the parties are challenging the application of storm water regulations to development permits. Having rejected Snohomish County's vested rights argument, we find its finality argument unavailing. Indeed, it is not even clear that Snohomish County is offering a separate argument, as its briefing "circle[s] backto its vesting argument." Ecology's Reply in Support ofPet. for Review at 3; Resp't Ecology's Response Br. at 30.7 And at oral argument, counsel for the County did not seem to distinguish betweenthevesting statutes andthe doctrine offinality oflanduse decisions. Wash. Supreme Court oral argument,Snohomish Countyv. Pollution ControlHearingsEd., No. 92805-3 (Oct. 13, 2016), at 21 min., 17 sec., audio recording by TVW,

7 At the Court ofAppeals, Snohomish County stated simply, "It is no more lawful for the County to truncate vested property rights by imposing a permit condition on a project approval than it is for the Countyto truncate vestedpropertyrights byenacting new development regulations and applying them to vested applications." Snohomish County's Opening Br. at 37. -31-Snohomish County, et al. v. Pollution Control Hearings Ed., et al., 92805-3
Washington State's Public Affairs Network, http://www.tvw.org (simultaneously mentioning application of new storm water regulations to "pending permit applications," which refers to the vesting statutes, and "projects that already have permits issued," whichrefers to the doctrine offinality). As noted above, the Board found that thevestedrights doctrine and the doctrine offinality oflanduse decisions
are "closelyrelated." CR at 4007. We agree and adopt the Board's findings on this
rssue. 

### See Port of Seattle, 151 Wn.2d at 592-93. 8 CONCLUSION We reverse the Court ofAppeals andreinstate theBoard'sorder. The legislative history and ourprecedent demonstratethat thevesting statutes were intended to restrict municipal discretion with respect to local zoning and land use ordinances. Because state and federal law direct the permittees to implement the storm water regulations at issueinthis case, theregulations are notthe sort oflocal mlrnicipallanduse and zoning ordinances the legislature was concerned with. Indeed, the legislature's actions with regard to implementation ofEcology's LID techniques make it clear that the vesting statutes do not preclude compliance with the 2013 Phase I Permit.

8 Theparties also askus to consider the use ofpolice powers and federal preemption. Suppl. Br. ofPet'r Ecology at 15, 17; Suppl. Br. ofPet'rs All. at 16. We do not address these arguments in light ofourresolution ofthis case.
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### WE CONCUR:



### 33