MRSC Inquiry #97-7380

Received the following question: "If a county adopts, by reference, a WAC as its utility policy and that WAC is later repealed and replaced by something that does not have the specificity of the original, what happens to the county's policy? Does it still exist or is it history, along with the original WAC? What if the county originally not only adopted the WAC but also included a copy of it in the resolution? Does that mean the policy still exists if the WAC is repealed?"

The question relates to the County Utility Accommodation Policy required by WAC 136-40-030. Prior to 1990, Chapter 136-40 WAC contained over 50 sections covering detailed standards of good practice for accommodation of utilities on county road rights-of-way. In 1990, all of these detailed standards were repealed and replaced by four short sections which simply required individual counties to adopt a utility policy (WAC 136-40-030) and specified the topics which must be covered in the policy (WAC 136-40-020). Several counties apparently adopted the existing WAC chapter by reference as their local utility policy. The detailed WAC provisions were later repealed and ceased to be published. Although the titles of the repealed sections are contained in the current WAC, the text of the repealed sections can only be obtained from a pre-1990 copy of the WAC (available at the UW Law Library and some other county law libraries which retain superseded WACs) or from CRAB.

Advised that the repeal of the state WAC provisions which were adopted by reference by the County does not automatically repeal the county's policies, however, there may be a problem with respect to the adequacy of the notice of the governing policies. The ability to enforce the policies will depend upon such factors as the language and procedures used to adopt them, whether a copy of the policies was attached to the ordinance or resolution adopting the policies, and whether copies of the policies adopted by reference are readily available. Adoption by reference may not be the best way to adopt existing codes and RCW or WAC provisions unless there is specific statutory authorization for the adoption by reference (e.g., RCW 43.21C.135 or RCW 46.90.010) or the county's intent is to precisely match the state codes, RCWs and WACs, including repeals. A model policy for Accommodation of Utilities on County Road Right of Way is included as Appendix I (pages I.2 to I.14) to the CRAB County Engineers and Public Works Directors Manual. This would be the preferred method for adoption of the standard policies on utility accommodation.

When adopting a code by reference, the general rule is that the code adopted is not automatically modified by subsequent amendment of the referenced code unless the legislative authority specifically incorporates the existing code and any future amendments. Republic v. Brown, 97 Wn.2d 915, 917-918 (1982). Public documents may be adopted and made a part of an ordinance by reference where the public document is adequately identified "so that there is no uncertainty as to what was adopted." Scott Paper Company v. Anacortes, 90 Wn.2d 19, 30-31, 578 P.2d 1292 (1978). (see also Inquiry No. 92-2852 (Longview) for other adoption by reference cases).

If the county ordinance or resolution simply adopted by reference "chapter 136-40 WAC," there may be an issue as to whether any utility accommodation policies currently exist for the county. If the adoption by reference listed the existing WAC policies being adopted as the local county utility policy and/or included a copy of the full text of the policies contained in chapter 136-40 WAC until 1990, then a good argument could be made that adequate notice of the policies exists. If the text of the policies were readily available to utilities and other persons or entities occupying county road rights-of-way and if the policies are commonly recognized standards of good practice, then the policies adopted by reference are likely to be recognized even though the state repealed the individual WAC policies and required counties to adopt their own local utility policy. The analysis would be case-by-case for each county and unique to the particular utility policies in question.

Cases discussing the adequacy of notice of standards adopted by reference include: Davis v. Bellevue Dist. Ct., 39 Wn.App. 808, 812, rev. denied __ Wn.2d __ (1985) (holding a local ordinance which adopts a state criminal statute by reference satisfies due process by giving adequate notice of the proscribed behavior because a person would be directed to the state statute and state statutes are readily found) and Bothell v. Gutschmidt, 78 Wn.App. 654, 661-662 (1995) (holding the RCW 35A.12.140 requirements for availability of copies of codes are met if the city clerk has a copy of the RCW).

RCW 36.32.120(7) specifically authorizes counties to adopt by reference certain Washington state statutes and recognized codes and/or compilations, subject to certain procedural requirements (including public hearings). There are certain restrictions on adoption by reference in RCW 36.32.125. It is not clear that the utility accommodation policies contained in the pre-1990 version of chapter 136-40 WAC were the kind of police power regulations covered by RCW 36.32.120(7), unless the county included provisions for enforcement of the policies such as provisions for making failure to adhere to the policies some type of code violation.

Other state statutes specifically authorize adoption by reference for specific subjects, such as RCW 43.21C.135, relating to adoption by reference of the SEPA WACs, and RCW 46.90.005 and RCW 46.90.010, relating to adoption by reference of the state traffic laws and model traffic ordinance. Although further research regarding the specific due process requirements is necessary, counties have the general authority to adopt certain commonly recognized standards by reference. The issue is whether adequate notice of the standards to be adopted was provided and whether the full text of the standards adopted by reference is readily available to persons subject to the standards. The notice and availability requirements of statutes such as RCW 36.32.120(7) and RCW 43.21C.135 may provide guidelines for the type of notice and publication requirements which a court may impose as a matter of due process.

NOTE: Similar authority for adoption by reference of state statutes and codes is available to cities and towns in RCW 35.21.180 and RCW 35A.12.140 (also RCW 35A.13.180), subject to similar procedural requirements.