Petitioner's counsel tells Supreme Court Ecology failed to provide required written technical assistance before $250,000 penalties

Allison Daniel, counsel for farmer Ron Foday, told the Washington State Supreme Court that her client faces roughly $250,000 in penalties and loss of the family farm because the Department of Ecology "disregarded the limits the legislature placed on its authority." She said Ecology failed to provide the statutorily required written technical assistance under RCW 90.03.0605 and instead relied on an internal February 15 deadline that had never gone through APA rulemaking.

Daniel argued the statutory enforcement sequence requires Ecology to offer written technical assistance when it determines a violation has occurred or is about to occur, and that Ecology's record contained only a May 16 letter addressed to the property owner and later cease-and-desist orders. "They never provided a writing identifying 1 or more means to accomplish the person's purposes within the framework of the law," she told the justices, saying the PCHB and Court of Appeals relied improperly on indirect communications. Daniel asked the Court to reverse and vacate the penalties because the prerequisite for assessing civil penalties was not met.

The exchange focused on whether the May 16 letter and later cease-and-desist orders satisfy the statute's requirement that assistance be provided in writing to the person who is violating or about to violate the water code. Daniel emphasized that even if Ecology had an administrative deadline for filing seasonal-transfer applications, the agency cannot use an unpromulgated deadline to cut off access to a statutorily established process.

The case was submitted after argument; the court did not issue a decision at the hearing.