Unofficial Opinion Wa. Attorney General

The Honorable Tom Mielke
State Representative, 18th District
P. 0. Box 40600
Olympia, WA 98504-0600

Dear Representative Mielke:

By fax inquiry previously acknowledged, you have asked for an opinion relating to the formation of the Chehalis River Basin Watershed Management Partnership. Specifically, you have asked if the intergovernmental agreement creating this Partnership is legally enforceable, noting that not all the parties listed in the agreement have actually signed it. I have reviewed the agreement and conclude that it is legally enforceable as a cooperative planning document as to those parties who have signed it or who are actually participating in the joint watershed planning that is the object of the agreement.

You have forwarded me a copy of the Intergovernmental Agreement (the "Chehalis Basin Agreement" or "the Agreement"), which recites RCW 39.34 (the Interlocal Cooperation Act) and RCW 90.82 (the watershed planning statutes) as its basis. The stated purpose of the Agreement is to "designate a planning unit and a lead agency for purposes of assessing and managing the water resources of the Chehalis River Basin and to pursue strategies within the Chehalis River Basin which include the key elements of flood reduction, fisheries, recreation, water quality and water quantity and examine their relationship to economic health and sustainability." Agreement, Section 2.0.

As you point out in Section 12.0, the Agreement provides that it will "become effective and commence upon execution of the Agreement by all parties." In light of this language, you point out that not all of the parties whose names are typed on the agreement have executed [signed] it, and you ask if that means that the Agreement is not in fact "effective." To answer your question, it is necessary to review the terms of the agreement concerning "parties."

Section 1.0 of the Agreement is titled "Parties." It lists the parties as (1) all counties within the Chehalis River Basin; (2) all interested cities and towns within the Chehalis River Basin; (3) the water supply utilities obtaining the largest quantity of water in the upper and lower portions of the Basins; (4) the State Department of Ecology; and (5) the Confederated Tribes of the Chehalis Indian Reservation and Quinault Indian Nation. I note that four counties (Grays Harbor, Lewis, Mason, and Thurston) have signed the agreement. These are, to my knowledge, all of the counties which contain territory in the Chehalis River Basin. Nine cities and towns (Aberdeen, Centralia, Chehalis, Napavine, Ocean Shores, Pe Ell, Hoquiam, McCleary, and Montesano) have signed the agreement. Three additional cities (Cosmopolis, Elma, and Westport) have their names typed in the signature section of the Agreement, but the copy you forwarded to me shows no signatures by city officials.¹ However, Section 1.0 does specify that all the cities in the Basin will be parties to the agreement. Also, it speaks of interested cities and towns. This makes it clear that the absence of cities and towns who are not "interested" in joining the Agreement does not render the Agreement ineffective.

While I do not have factual information as to which water supply utilities in the Chehalis River Basin "obtain the largest quantity of water" in the upper and lower portions of the Basin, I note that two water utilities-Boistfort Valley Water and Grays Harbor Water District #2-have signed the Agreement and I suspect these two utilities meet the description in Section 1.0.² The Department of Ecology is also a signatory. The only remaining question concerns the two Indian tribes listed in Section 1.0. One of the named tribes, the Confederated Tribes of the Chehalis .Indian Reservation, has signed the Agreement. However, the Quinault Indian Nation, whose name is typed on the signature page, has apparently not signed the Agreement. Your original question is reduced to the issue whether the absence of the Quinault Nation's signature renders the entire Agreement "ineffective."

I would answer that question "no." Although the Agreement is adopted pursuant to RCW 39.34 and uses "contract" legal language, it is not a typical contract in which parties exchange mutually enforceable promises. The purpose of the Agreement, as stated in Section 2.0, is very broad-to designate a planning unit and a lead agency for purposes of water resource management in the Basin. This is underscored by Section 3.0 of the Agreement, which states that "the parties shall work cooperatively to establish a planning unit". Section 11.0 of the Agreement permits any individual party to withdraw from the Agreement on ten-days notice. Section 13.0 of the Agreement specifically provides that "participation in the Chehalis River Basin Partnership and Planning Unit" will not "bind any member's independent decision-making authority or the reserved rights of the tribes." From all this language, it is clear that the only promises exchanged by the signatories to the Agreement are to cooperate in planning together concerning water resource management in the Chehalis River Basin, and any party can withdraw from that promise on short notice. Given the broad purposes of the Agreement, it seems inconceivable that the parties intended that it would be rendered completely ineffective by the absence of one party's signature. ³

Another answer to your question would be to ask in return, "Are the signatories to the Agreement proceeding as if the Agreement is in force?" If they are and are cooperating in their planning, are using the Basin Partnership created in the Agreement, and proceeding with Lewis County as the lead agency as stated in the Agreement then the Agreement is in force. Perhaps the Quinault Nation has not participated as a party, or perhaps the Quinault Nation has participated notwithstanding its failure to formally sign the Agreement. Either way, there is nothing to prevent the remainder of the governments and agencies from implementing the Agreement and no basis for suggesting that their cooperative acts are somehow "invalid" based on a hyper-technical reading of the requirements in the Agreement .⁴

I hope this information will prove useful. This informal opinion will not be published as an official Opinion of the Attorney General.

Very truly yours,

JAMES K. PHARRIS

Senior Assistant Attorney General

(360) 664-3027

¹ I have no way of knowing of course, whether these cities signed the Agreement later or on separate pieces of paper. As discussed in the text this would make no difference to the analysis.

² The Port of Centralia, which does not fall within any of the categories expressly listed in Section 1.0, also signed the Agreement.

³ Although it is not expressly stated in the Agreement, I assume the Agreement is intended to serve as an "initiation of watershed planning" for the purposes of RCW 90.82.060. This statute requites the initial participation of certain counties, cities, and water supply utilities (all of these requirements appear to be met by the Agreement). The state requires that tribes with reservation lands within the reservation area be invited to join in the agreement, but it does not make tribal participation a prerequisite to the planning process. RCW 90.82.060(5).

⁴ Likewise, if the Department of Ecology is providing fending to the Chehalis Agreement parties under RCW 90.82.040, and has determined that the Chehalis parties qualify for such funding, there is no basis for second guessing this decision based on the absence of signatures.

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