Does the Idaho Department of Health and Welfare have to use formal rulemaking when it adopts a state nutrient management plan, and does the legislature and the Board of Health and Welfare get a chance to review the plan before it takes effect?

Plain-English summary

Representatives Bruce Newcomb and Celia Gould asked the AG whether the Idaho Department of Health and Welfare's nutrient management plan, developed under Idaho Code § 39-105(3)(o), had to go through formal rulemaking before adoption. The Nutrient Management Act, added to the Environmental Protection and Health Act in 1989, directs the department to "formulate and adopt a comprehensive state nutrient management plan for the surface waters of the state" in consultation with federal agencies, local governments, and the public. The act also requires "[s]tate and local units of government [to] exercise their police powers in compliance with" the plan. So the plan is binding state law, but the statute did not expressly say "adopt by rule."

The AG (writing for AG Larry EchoHawk) said yes, formal APA rulemaking is required. Although § 39-105(3)(o) is ambiguous, several factors push toward APA rulemaking. First, the plan binds state and local police powers and constrains private conduct, which is the kind of action the APA was designed to subject to public process. Second, the act explicitly says the department must "recommend rules for adoption by the board" both for plan-development procedures and for plan implementation. The plan's components substantively control what the department and other agencies do; substantively binding determinations are rules under the APA. Third, the limited authority granted to the department (mostly procedural) and the broad authority granted to the Board of Health and Welfare (substantive policy) point to board adoption being the legislatively intended path.

Once formal rulemaking applies, two layers of review attach. The Board of Health and Welfare must approve the rules under its general substantive authority. The Idaho Legislature reviews the rules under Idaho Code §§ 67-5223 and 67-5291 (legislative review of administrative rules). Both reviews happen before the rule (and thus the plan) takes effect.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does it matter whether the plan is a "rule" or just a "plan"?

Because the procedural rights are different. A "rule" under Idaho's APA must be adopted through notice-and-comment, board approval, and legislative review. A non-rule "plan" can be adopted by department staff or by an internal committee, with no public input or external check. The choice between the two paths determines whether agriculture, dairy, municipal water systems, and other affected industries have a formal voice before the plan takes effect, and whether the legislature has a chance to push back on policy choices the department makes.

Can the department issue the plan in pieces?

The act contemplated a hydrologic-basin-based plan with components for each major basin. The department had recommended (and the board had approved) Rules and Regulations for Nutrient Management at IDAPA 16.01.16000 et seq. in 1990, setting up the development procedure (technical advisory committee, public advisory committee, etc.). Each substantive component was, the AG implied, a separate rule that needed its own APA process. The department could not lump multiple components together to avoid review, nor could it adopt one component informally and call it complete.

What does Board of Health and Welfare review look like?

The board is the policy-setting body for DH&W on environmental and health matters. The board reviews proposed rules for substantive policy soundness and consistency with the agency's statutory authority. Board approval is the mechanism by which the legislature's broad delegation of authority to "the Department of Health and Welfare" gets focused: department staff propose, the board reviews, the legislature reviews after the board approves.

What does legislative review of a rule under §§ 67-5223 and 67-5291 do?

The Idaho Legislature has authority under those sections to review pending and adopted administrative rules. Through its Administrative Rules Review Committee (a joint House-Senate committee), the legislature can hold hearings, request modifications, and ultimately approve or reject rules. The legislature can also pass a concurrent resolution rejecting a rule. The system is part of Idaho's broader effort to maintain legislative oversight of agency rulemaking.

What happens to existing nutrient-management actions if the rulemaking is invalid?

That depends on whether the action was taken under a properly adopted rule or under an informally adopted plan. Properly adopted rules survive even if the underlying plan has been challenged. Actions taken under informally adopted components might be vulnerable, with private parties potentially able to challenge enforcement actions on the ground that the plan was never properly promulgated.

Background and statutory framework

The Idaho Nutrient Management Act, 1989 Idaho Sess. Laws 762, was added to the Environmental Protection and Health Act at Idaho Code § 39-105(3)(o). The act responded to legislative concern about nutrient (primarily nitrogen and phosphorus) loading in Idaho surface waters from agricultural runoff, dairy operations, and municipal effluent. The plan-development framework was novel for Idaho: a single statewide plan with hydrologic-basin components, developed in consultation with federal agencies, local governments, and the public, with binding force on state and local agencies.

The Idaho APA (Idaho Code §§ 67-5201 et seq.) is the standard framework for agency rulemaking. Notice-and-comment, board approval, legislative review, and judicial review of agency action all flow from the APA. The legislative-review provisions in §§ 67-5223 and 67-5291 give the legislature authority to monitor and reject rules. The combination of board review and legislative review is the standard Idaho pattern for substantive agency rules.

The opinion's analytic move was to read the ambiguous § 39-105(3)(o) in light of the APA's strong default in favor of formal rulemaking for binding agency actions. Where the legislature has not expressly excluded APA rulemaking, the APA applies. The opinion strengthened the case by pointing to other portions of § 39-105(3)(o) that explicitly required board-approved rules for plan-development procedures and plan implementation.

Citations

• Idaho Code §§ 39-105(3)(o), 67-5201 et seq., 67-5223, 67-5291
• 1989 Idaho Sess. Laws 762
• IDAPA 16.01.16000 et seq.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP94-02.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 94-2
To:

The Honorable Bruce Newcomb
The Honorable Celia Gould
Idaho State Representatives
STATEHOUSE MAIL

Per Request for Attorney General's Opinion
QUESTION PRESENTED
Must a nutrient management plan developed by the Idaho Department of Health
and Welfare pursuant to Idaho Code § 39-105(3)(o) be reviewed by the Board of Health
and Welfare and the legislature prior to adoption and implementation?
CONCLUSION
Idaho Code § 39-105(3)(o) is ambiguous on whether the board and the legislature
must review the plan prior to its adoption. Rules of statutory construction, however,
suggest that the department is required to engage in formal rulemaking to adopt and
implement the plan, pursuant to the Idaho Administrative Procedure Act (APA), Idaho
Code §§ 67-5201 et seq. Therefore, the rule is subject to legislative review pursuant to
Idaho Code § 67-5223 and Idaho Code § 67-5291. Further, the limitation on authority
granted to the department and the broad authority granted the board supports the
conclusion that the plan is subject to review by the board.
BACKGROUND
In 1989, the Idaho Legislature amended the Environmental Protection and Health
Act to include the Nutrient Management Act at Idaho Code § 39-105(3)(o) as a result of
legislative concerns about the impact of nutrients on water quality and to ensure statewide consistency in developing the plan. 1989 Idaho Sess. Laws 762. The act requires
the department to formulate and adopt a "comprehensive state nutrient management plan
for the surface waters of the state of Idaho in consultation with . . . federal agencies, local
units of government, and with public involvement." See Idaho Code § 39-105(3)(o). The
act requires that the plan "shall be developed on a hydrologic basin unit basis" throughout
the state "with a lake system emphasis." Id. Each component of the plan must "identify
nutrient sources [to state waters]; the dynamics of nutrient removal, use and dispersal;
and preventative or remedial actions where feasible and necessary to protect the surface
waters of the state." Id. Once adopted, "[t]he plan shall be used by the department and
other appropriate agencies . . . in developing programs for nutrient management." Id.

The act also requires that "[s]tate and local units of government shall exercise their police
powers in compliance with the . . . plan." Id.
The act requires the department to recommend rules for adoption by the board
which set forth "procedures for development of the plan, including mechanisms to keep
the public informed and encourage public participation in plan development." The act
also requires the department to recommend to the board rules establishing procedures to
determine consistency of local nutrient management programs adopted by any local unit
of government. Id. Finally, the act requires the department to "formulate and
recommend to the board for adoption rules and regulations as necessary to implement the
plan." Id.
In 1990, the department recommended and the board approved Rules and
Regulations for Nutrient Management, IDAPA 16.01.16000 through -.16999. The rules
establish procedures for development of the plan, including mechanisms to consult with
and inform governmental agencies, affected industries and the public through a "technical
advisory committee" and a "public advisory committee." See IDAPA 16.01.16100.02.
The rules provide that each component of the plan "shall become effective on the date of
its adoption by the department" and that the plan will be considered a component of the
state water quality management plan.1 See IDAPA 6.01.16100.08. The rules also set
forth procedures to determine consistency of local nutrient management programs with
the comprehensive state nutrient management plan. The department has not formulated
or recommended to the board, at this time, a comprehensive nutrient management plan or
any rules to implement the plan. The department is involved, however, with
development of a component of the plan for the middle Snake River.
ANALYSIS
1.

The Plan Must Be Adopted Pursuant to the APA and Is Subject to Legislative
Review

Idaho Code § 39-105(3)(o) specifically grants authority to the department to
promulgate and implement a comprehensive nutrient management plan. Idaho Code
§ 39-105(3)(o) is ambiguous, however, on whether the board and/or the legislature must
review and approve the nutrient management plan formulated by the department. This
ambiguity exists because of the statute's lack of clarity regarding whether the plan must
be adopted pursuant to the APA. If the APA applies, then legislative review is permitted
pursuant to Idaho Code § 67-5223 prior to the adoption and implementation of the
proposed rule. Further, the rule would be subject to legislative review pursuant to Idaho
Code § 67-5291 after implementation, to ascertain whether the rule comports with the
legislative intent of the statute under which the rule was adopted.

Idaho Code § 39-105(3)(o) mandates that the department shall consult with
appropriate state and federal agencies, with local governmental units and invite public
comment consistent with the APA in the formulation of the plan. This provision suggests
the plan must be adopted pursuant to the APA. This conclusion is buttressed by the
provision that "[s]tate and local units of government shall exercise their police powers in
compliance with the comprehensive state nutrient management plan . . . ." Id. This
language requires that upon adoption the plan will have the force and effect of law since
state and local governments "shall" comply with the plan. Id. In order for the plan to
have the force and effect of law, as it applies to the state and local government police
powers, the department must adopt the plan as a formal rule under the APA. This
requirement is explained in the comments to Idaho Code § 67-5201(16), the
Administrative Procedure Act's definition of a rule:
[A]n agency may promulgate a rule only by complying with the procedure
set out in the Administrative Procedure Act. If the agency has not complied
with these requirements, it has not promulgated a "rule" and the statement
lacks the force and effect of law. If an agency wishes to impose legal
obligations on a class of persons, it must promulgate a rule.
Where ambiguity exists in a statute it is appropriate to engage in statutory
construction in order to ascertain and give effect to the legislature's intent. Easley v.
Lees, 111 Idaho 115, 721 P.2d 215 (1986). One method of discerning legislative intent is
to examine the purpose of the statute and its structure as a whole. Leliefeld v. Johnson,
104 Idaho 357, 659 P.2d 111 (1983); appeal after remand, 111 Idaho 897, 728 P.2d 1306
(1986). Further, in construing a statute, it is necessary to give effect to every word,
clause and sentence of the statute adopting the construction that does not deprive any
provision of the statute of its meaning. George W. Watkins Family v. Messenger, 118
Idaho 537, 797 P.2d 1385 (1990). Finally, in the face of statutory ambiguity, statutory
interpretation may be accomplished by reference to other statutory provisions in the same
title or chapter reading the related statutory provisions in pari materia in order to
determine the legislative intent. Killeen v. Vernon, 121 Idaho 94, 822 P.2d 991 (1991).
Reading Idaho Code § 39-105(3)(o) as a whole, it is apparent that the legislature
intended that the plan would be adopted pursuant to the APA. First, it is necessary to
give effect to the statutory language that requires the department to promulgate a
comprehensive state nutritional management plan in consultation with appropriate
governmental entities and with public involvement consistent with the APA. Second,
Idaho Code § 39-105 requires that the plan shall have the force and effect of law in order
for governmental entities to exercise their police power to require compliance--only a
rule has the force and effect of law. An interpretation of Idaho Code § 39-105(3)(o)
allowing the department to promulgate the plan without review as provided in the APA
would render each of the afore-referenced provisions of the statute meaningless.

Therefore, in order to give effect to Idaho Code § 39-105(3)(o) as a whole, the plan must
be adopted pursuant to the APA. Consequently, the plan is subject to legislative review
prior to its adoption pursuant to Idaho Code § 67-5223 and after its adoption pursuant to
Idaho Code § 67-5291.
2.

The Plan Is Subject to Review by the Board

The conclusion that the plan must be adopted pursuant to the APA does not
resolve the question of whether the board must review the plan. The answer to this
question turns on who the legislature intended would have the duty to promulgate the
rules. Idaho Code § 39-105(3)(o) provides that the board shall promulgate the rules to
implement the plan. This suggests the plan must be submitted to the board. Other
statutory provisions within title 39 (Health and Safety), chapter 1 (department of Health
and Welfare), support this interpretation. Idaho Code § 39-105(2) grants the department
the authority to regulate subject to review by the board. Idaho Code § 39-105(2)
provides that:
The director shall, pursuant and subject to the provisions of the Idaho Code,
and the provisions of this act, formulate and recommend to the board, rules,
regulations, codes and standards as may be necessary to deal with problems
relating to personal health, water pollution, air pollution, visual pollution,
noise abatement, solid waste disposal, and licensure and certification
requirements pertinent thereto, which shall, upon adoption by the board,
have the force of law relating to any purpose which may be necessary and
feasible for enforcing the provisions of this act, including, but not limited to
the prevention, control or abatement of environmental pollution or
degradation and the maintenance and protection of personal health.
In addition, Idaho Code § 39-105(3) qualifies the powers and the duties of the department
to be subject to "the rules, regulations, codes or standards adopted by the board . . . ."
Further, Idaho Code § 39-107(8) broadly defines the powers of the board as the
entity that adopts, amends or repeals all rules, codes and standards of the department
dealing with matters necessary for protecting the environment or health of the state. An
interpretation of Idaho Code § 39-105(3)(o) allowing the department to formulate and
implement the plan without review by the board would contradict the limitation on the
department's authority provided in Idaho Code § 39-105(2), (3) and the board's grant of
authority provided for in Idaho Code § 39-107(8).
Therefore, the department is required to engage in formal rulemaking to adopt and
implement the plan. Formal rulemaking necessitates approval by the legislature. Further,

review by the board is required by reason of the limitation on the department's authority
and the broad grant of the board's authority.
AUTHORITIES CONSIDERED
1.

Federal Statutes and Regulations:
33 U.S.C. §§ 1251 et seq., Federal Water Pollution Control Act of 1972.
40 C.F.R. part 130.

2.

Idaho Code:
§ 39-105.
§ 39-105(2).
§ 39-105(3).
§ 39-105(3)(o), Nutrient Management Act.
§ 39-107(8).
§§ 67-5201 et seq.
§ 67-5201(16), Administrative Procedure Act.
§ 67-5223.
§ 67-5291.

3.

Idaho Cases:
Easley v. Lees, 111 Idaho 115, 721 P.2d 215 (1986).
George W. Watkins Family v. Messenger, 112 Idaho 537, 797 P.2d 1395 (1990).
Killeen v. Vernon, 121 Idaho 94, 822 P.2d 991 (1991).
Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

4.

Other Authorities:
1989 Idaho Sess. Laws 762.
IDAPA 16.01.16000 et seq.
IDAPA 16.01.16100.02.
IDAPA 16.01.16100.08.
DATED this 16th day of February, 1994.
LARRY ECHOHAWK

Attorney General
Analysis by:
C. NICHOLAS KREMA
Deputy Attorney General
Natural Resources Division
1 Development of a state water quality management plan is required by the United States
Environmental Protection Agency to fulfill minimum requirements of the Federal Water Pollution Control
Act of 1972, 33 U.S.C. §§ 1251 et seq. See 40 C.F.R. pt. 130.