Foster v. Dep't of Ecology

»~w l
t This opinion was filed .
I ELLE:ng ' ' ‘ fitm— on Mi?"
onald R. Carpenter ,
Supreme Court Clerk
IN THF " UPREME COURT OF THE STATE OF WASHINGTON
SARA FOSTER,
No. 903 86—7
Appellant,
v. En Banc
WASHINGTON STATE DEPARTMENT
OF ECOLOGY; THE CITY OF YELM;
and WASHINGTON POLLUTION
CONTROL HEARINGS BOARD,
vvvvvvvvvvvvv
Respondent.
i
i
. Filed SET 08 2015
JOHNSON, J .-~T his case involves a challenge to a water right permit issued
by the Department. of Ecology to the city of Yelm. The permit was issued pursuant
to RCW 90.54.020(3)(a), which allows Ecology to authorize withdrawals of water
that impair minimum flows where it is determined that overriding considerations of
the public interest-(OCH): are, established by the applicant. The trial court affirmed
the PollutiOn Control Hearings Board’s decision approving the permit. In
Swinomisn Indian Tribal Community v. Department of Ecology, 178 Wash. 2d 571,
311 P.3d 6 (2013), we comprehensively analyzed the statutory provision and held
that this provision operates as an exception to the overall prioritization of water
Foster v, Dep ’t ofEcology, No. 903 86—7
rights and that withdrawals of water authorized under the statute cannot
permanently impair senior water rights with earlier priority. For many of the same
reasons recognized in SWz'noivais/a, we reverse.
FACTS AND PROCEDURAL HISTORY
Yelm filed an application with Ecology for a new municipal water permit to
meet the water needs of its growing population. Because this new appropriation
would impair the minimum flows of waterways connected to the Deschutes and.
Nisqually Basins, Ecology conditioned approval of Yelm’s application on an
extensive mitigation plan. This mitigation plan would use a variety of devices to
offset the impact of the new appropriation. For example, it would retire existing
water rights and reintroduce reclaimed water back into the stream system in order
to offset new water uses (called water-for-water or in-kind mitigation). Yelm’s
mitigation plan also proposed improvements to stream conditions and protection of
habitat by stream restoration, historical farmland acquisition, and stream-side crib
wall construction (called out—of—ldnd mitigation).
Ecology approved Yelm’s permit, conditioned on this mitigation plan. The
parties do not dispute that even with the mitigation plan, Yelm’s new permit will
impair minimum flows, most likely during “shoulder seasons,” which are the
weeks in April and Octoberlthat are not covered. by the retirement of irrigation
water rights. Nevertheless, Ecology argues that there will still be a net ecological
2
Foster v. Dep ’1‘ of Ecology, No. 903 86—7
water when reduirements of 90.03.2906) cannot be satisfied for the
proposed appropriation”. and that “the overriding—considerations exception cannot
reasonably be read to replace the. many statutes that pertain to appropriation of the
State’s water and flows.” Swinomish, 178 Wn.2d at 590, 598. Ecology’s
approval of iYelm’s permit and its application of the OCPI exception makes the
sort of end-run around the appropriation process that we expressly rejected in
1 Swimmish.
V I We'also disagree 'with Ecologythat Yelm’s mitigation plan presents the sort
of “extraordinary circumstances” that we held in Swinomish are required to apply
the OCPI exception. Yelm’s, proposed plan would mitigate the impairment to the
minimum flows by creating a net ecological benefit, despite the net loss of water
resources. We, find, however, that the mitigation plan is largely irrelevant to the
analysis. First, the mitigation plan is just that: a plan meant to offset the
impairment of the minimum flows. The mitigation plan itself is not the
“extraordinary circumstances” meant to justify use of the OCPI exception. Quite
» the opposite: the reason Yelm seeks a new water permit is to meet its municipal
water needs—wnot improve habitat conditions. And municipal water needs, far from
extraordinary, are common and likely‘to occur frequently as strains onlimited
water resources increase throughout the state. Second, the mitigation plan does not
mitigate the injury that occurs when a junior water right holder impairs a senior
ll
Foster 12. D6}? ’1‘ of Ecology, No. 903 86—7
water right. The water coderincludingthe statutory exception, is concerned with
the Zegalinjury causedby impairment of senior water rights—water law does not
turn on notions of“ecological’f injury. Our cases have consistently recognized that
the prior appropriation doctrine does not permit even de minimis impairments of
senior water rights. Postema? 142 Wn.2d at 90. Therefore we reject the argument
that ecological improvements can “mitigate” the injury when a junior water right
holder impairs a senior water right.
CONCLUSION
We hold. that Ecology exceeded its authority by approving Yelm’s water
permit under the narrow OCPI exception. The exception, by its terms, permits only
temporary impairment of minimum flows. Municipal water needs do not rise to the
level of “extraordinary circumstances” that'we held are required to apply the OCPI
exception, nor can a mitigation plan “mitigate” by way of ecological benefit the
legal injury to a senior water right. We reaffirm our holding in Swinomish: the
OCPI exception islnot ran end-run around the appropriation process or the prior
appropriation doctrine. We reverse the superior court’s and PCHB’S decisions
12
Fo‘ster v. Dep ’t ofEcology, No. 903 86—7
affirming Ecology’s approval of the Yelm permit.
WE CONCUR:
13
' Foster (Sara) v. Dep’t of Ecology at al.
(Wiggins, J., dissenting)
No. 90386—7
WIGGINS, J. (dissenting)——The Washington State Pollution Control Hearings
Board (PCHB or Board) approved a water right permit issued by the Department of
Ecology to the city of Yelm. This approval followed a 20—year joint effort among the
cities of Lacey, Olympia, and Yelm to cooperate in developing a water rights
acquisition strategy and implementation of a mitigation strategy. In affirming Ecology’s
approval, the PCHB found, among other things, that the Yelm permit reflected “the
exhaustion of every feasible flow related option to mitigate” and that the “overall
mitigation package was more than sufficient to offset any depletions of stream flow.”
The majority reverses the approval of the water right permit for two reasons:
the majority concludes that the overriding considerations of the public interest (OCPI)
exception permits only temporary, not permanent, rights to withdraw groundwater, and
that the decision of the PCHB is contrary to principles announced in Swinomish Indian
Tribal Community v. Department of Ecology, 178 Wash. 2d 571, 311 P.3d 6 (2013).
Majority at 7.
These reasons for reversal are invalid: the majority adopts a novel and
unprecedented definition of the key word “withdraw” as only temporary, which is
contrary to the consistent meaning of the word in the water code, and this case is
nothing like Swinomish. I would hold that the PCHB correctly applied the law, that its
findings of fact—none of which are disputed or challenged by petitioner Foster—are
supported by substantial evidence, and that the permit is supported by the findings of
fact. Accordingly, I respectfully dissent.
' Foster (Sara) v. Dep’t of Ecology, No. 9038.6—7
(Wiggins, J., dissenting)
ANALYSIS
I. The meaning of “withdrawals of water”
A. Plain language and the legislature’s use of the term “withdrawals”
The OCPI exception permits “[w]ithdrawals of water” that impair minimum flows
if “it is clear that overriding considerations of the public interest will be served.” RCW
90.54.020(3)(a). The language of the statute is clear on its face: if overriding
considerations of the public interest exist, Ecology may authorize withdrawals of water
even if the withdrawals would impair base flows. The exception includes no
restrictions based on the duration or scale of the withdrawal. If the language of a
statute is unambiguous, “we give effect to that language and that language alone
because we presume the legislature says what it means and means what it says.”
State v. Cost/ch, 152 Wash. 2d 463, 470, 98 P.3d 795 (2004). The majority ignores this
plain language on the novel theory that OCPI withdrawals are only temporary in
nature, not permanent: “when the legislature intends for the assignment of a
permanent legal water right, it uses the term ‘appropriation’; when it intends for only
the temporary use of water, it uses the term “withdrawal.” Majority at 9-10.
This is a surprising holding. In over a century of water law, we have never
perceived such a distinction. Nor has the legislature. Nor did the court mention this
theory in our recent Swinomish opinion, which never mentions the words “temporary”
or “permanent.” See 178 Wash. 2d 571.
The majority’s unprecedented holding is wrong; the legislature repeatedly uses
the term “withdrawal” to refer to permanent rights. We interpret a statute by reading it
in its entirety and considering its relationship with related statutes. Dep’t of Ecology v.
' Foster (Sara) v. Dep’t of Ecology, No. 90380-7
(Wiggins, J., dissenting)
Campbell & Gwinn, LLC, 146 Wash. 2d 1, 11, 43 P.3d 4 (2002). Chapter 90.44 RCW,
“Regulation of public groundwaters,” refers dozens of times to “withdrawal” or the right
to “withdraw” groundwater. The legislature enacted the chapter to supplement chapter
90.03 RCW, “Water code,” which regulates surface water, “for the purpose of
extending the application of such surface water statutes to the appropriation and
beneficial use of groundwaters within the state.” RCW 90.44.020. Examples of
“withdrawal” referring to permanent rights follow.
RCW 90.44.050 requires a permit in order “to withdraw” groundwater and
exempts from the permit requirement the “withdrawal” of groundwater for garden and
domestic uses, not to exceed 5,000 gallons per day. (Boldface omitted.) Beneficial
use of groundwater by such a user creates a “right” to continue using the water: not a
temporary use but rather a permanent “right” to use the groundwater.
RCW 90.44.090 provides a means for a water user with vested rights to obtain
a permit authorizing withdrawal of groundwater: “Any person, firm or corporation
claiming a vested right to withdraw public groundwaters of the state by virtue of prior
beneficial use of such water shall, within three years after June 6, 1945, be entitled to
receive from the department a certificate of groundwater right to that effect . . . )
(Emphasis added.) This statute can be referring only to permanent uses, not
temporary uses, because the statute specifically creates an entitlement to the water
right—a “vested right” is not temporary in duration. Equally significantly, it would make
no sense to give a water user three years to confirm a vested right if the right was only
temporary.
I Foster (Sara) v. Dep’t of Ecology, No. 90380—7
(Wiggins, J., dissenting)
RCW 90.44.100(1) authorizes “the holder of a valid right to withdraw public
groundwaters” to construct a new well from which to withdraw the permitted water.
(Emphasis added.) The reference toa “valid right” and construction of a new well
clearly refers to a permanent right; one would not likely dig or drill new wells for a
temporary right.
RCW 90.44.105 allows “the holder of a valid right to withdraw public
groundwaters [to] consolidate that right with a groundwater right exempt from the
permit requirement under RCW 90.44.050, without affecting the priority of either of the
water rights being consolidated.” (Emphasis added.) When the right to withdraw
groundwater is consolidated with the exempt well, the amount of water added to the
right “shall be the average Withdrawal from the well, in gallons per day, for the most
recent five—year period preceding the date of the application . . . RCW 90.44.105
(emphasis added). The reference to a five-year history of withdrawal of water clearly
refers to a permanent right, not a temporary right.
RCW 90.44.180 provides a mechanism to adjust the supply of groundwater
among “the holders of valid rights to withdraw public groundwaters . . . (Emphasis
added.) RCW 90.44.220 and .230 authorize Ecology to file a petition in superior court
for a “determination of the right to withdrawal ofgroundwater. . . (Emphasis added.)
Many other statutes also speak of permits or rights to “withdraw” groundwater or of
“withdrawal” of groundwater. See, e.g., RCW 90.14.068; RCW 9044.450, .520; RCW
9066.050, .060.
Taken together, these related provisions in chapter 90.44 RCW support the
PCHB’s decision to affirm Ecology’s award of a permanent withdrawal of water
4
' Foster (Sara) v. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
pursuant to RCW 90.54.020(3)(a). As demonstrated in the next section, the majority
misplaces its reliance on unrelated provisions to support its incorrect theory that the
term “withdrawal” refers only to a temporary use of water.
B. Emergency withdrawal under ROW 43. 833.410
The majority attempts to bolster its interpretation that OCPI withdrawals must
be temporary by citing to RCW 43.838.410(1)(a), which allows “emergency
withdrawal[s]” of water only “on a temporary basis” where Ecology has declared that
drought conditions exist. Importing this limitation into the OCPI exception flies in the
face of the plain meaning of the OCPI exception and our well-established principles
of statutory construction. True, we look to “related statutes which disclose legislative
intent about the provision in question.” Campbell & Gwinn, LLC, 146 Wn.2d at 11. But
nothing in either statute suggests that the emergency drought provisions are “related”
to the OCPI exception—and even if they were related, that would not supply a basis
for reading language from the drought provisions into a statute where that language
plainly does not appear.
While the OCPI exception is found in Title 90 RCW, titled “Water Rights——
Environment,” the drought provisions appear in Title 43 RCW, which defines the
powers and responsibilities of various executive agencies and officials. (Formatting
omitted.) The drought provisions apply only when Ecology issues an order, with
“written approval of the governor," declaring that “a drought condition either exists or
is. forecast to occur.” RCW 413.838.4050), .410. That order must specify a termination
date of no later than one calendar year after issuance of the order declaring the
drought condition. RCW 43.838.405(2). Plainly, we do not read those restrictions into
5
' Foster (Sara) v. Dep’t of Ecology, No. 90336-7
(Wiggins, J., dissenting)
the OCPI exception—or, indeed, into any of the other provisions in Title 90 RCW,
which govern the long-term recognition and allocation of water rights generally, not
the emergency reallocation of water during droughts. Moreover, when Ecology does
declare a drought, the limitation “on a temporary basis” applies to all withdrawals of
public surface and groundwater that Ecology authorizes, not merely, as in the case of
an OCPI exception, to withdrawals that would impair Ecology-defined base flows. See
RCW 43.83B.410(1)(a). Certainly, nothing. in either the emergency drought provisions
or RCW 90.54.020 suggests that the legislature intended to read the limitations ofthe
former into the latter.
The majority’s theory is further contradicted by the fact that the legislature found
it necessary to recite that emergency withdrawal may be authorized “on a temporary
basis." RCW 43.83B.410(1)(a). If all withdrawals were temporary, as the majority
asserts, the statutory language that emergency withdrawals must be temporary would
be superfluous. Cf. G—P Gypsum Corp. v. Dep’tof Revenue, 169 Wash. 2d 304, 309, 237
P.3d 256 (2010) (“‘[s]tatutes must be interpreted and construed so that all the
language used is given effect, with no portion rendered meaningless or superfluous.”’
(internal quotation marks omitted) (quoting State v. J.P., 149 Wash. 2d 444, 450, 69 P.3d
318 (2003))).
This erroneous reasoning also strikes a somewhat ironic chord because it uses
methods of statutory interpretation that this court rejected in the two main cases upon
which the majority relies: Postema v. Pollution Control Hearings Bd., 142 Wash. 2d 68,
11 P.3d 726 (2000) and Swinomish, 178 Wash. 2d 571. The need to construe statutes
together to achieve a unified whole arises only when statutes are in pari materia, that
6
' Foster (Sara) v. Dep’t of Ecology, No. 90380—7
(Wiggins, J., dissenting)
is, “on the same subject.” See, e.g., Hal/auer v. Spectrum Props, Inc., 143 Wash. 2d
126, 146, 18 P.3d 540 (2001). Where statutes are unrelated, on the other hand, there
is no basis for importing definitions or other language from one statute into the other.
See, e.g., Auto Value Lease Plan, Inc. v. Am. Auto Lease Brokerage, Ltd., 57 Wn.
App. 420, 423, 788 P.2d 601 (1990).
We recognized these principles in Postema, where appellants asked us to read
terms into the regulations governing the Snohomish River Basin that appeared in a
regulation governing a different basin. Postema, 142 Wn.2d at 85. Appellants there
argued that Ecology “intended the same meaning be given the groundwater
regulations for all basins where minimum flows have been set.” Id. Unimpressed, we
rejected the notion that one can selectively quote similar language from unrelated
provisions “as an aid in interpretation.” Id. We concluded by stating that “[w]hile there
is some appeal to the idea that all of the rules should mean the same thing therefor,
we . . . decline to search for a uniform meaning to rules that simply are not the same.”
Id. at 87. Similarly, here, the court should not attempt to impose a uniform meaning
on unrelated statutes.
Furthermore, even if we were to assume for the sake of argument that the
drought provisions are related to RCW 90.54.020, that still would not constitute a
license to read language from the drought provisions into subsection .020 or other
statutes where the language does not appear. On the contrary, “[t]he omission of a
similar provision from a similar statute usually indicates a different legislative intent.”
CIa/lam County Deputy Sheriff’s Gui/d v. Bd. of C/a/lam County Comm’rs, 92 Wash. 2d
844, 851, 601 P.2d 943 (1979) (citing 2A C. DALLAS SANDS, STATUTES AND STATUTORY
7
F aster v. Dep ’2‘ of Ecology, No. 903 86—7
benefit resulting from the mitigation plan, despite the net loss of water resources.
Because of the impairment of minimum flows, Ecology claims authority to
approve Yelm’s permit only under the OCPI exceptionat issue. At the time it
approved the permit and mitigation plan, Ecology applied the same three—Step
balancing test for use of the CCPI exception that was at issue in Swinomish
(discussed infra) and that we rejected in that case.
Appellant, Sara Foster, appealed approval of the Yelm permit to the
Pollution Control Hearings Board (PCHB), which held an evidentiary hearing and
issued findings of facts and conclusions of law. It largely ruled in favor of Ecology
and approved the permit. PCHB found that Ecology properly considered all
impacts to the minimum flows and mitigated those impacts through the use of in—
kind and out-of-kind mitigation. PCHB also concluded that the mitigation plan
would clearly benefit fish and wildlife habitat, outweighing any negative effects
that would result from the impairment of minimum flows. Finally, although it
rejected Ecology’s existing three—step test as not sufficiently stringent, PCHB
concluded that Ecology had met the statutory standard under the OCPI exception.
PCHB’S conclusion relied on 12 factors that it found supported the use of the OCPI
exception. These factors are not part of Ecology’s three—step test; rather, the factors
were of PCHB’s own making, drawn from the testimony and data it received
during the administrative appeal.
' Foster (Sara) v. Dep’t of Ecology, No. 903807 '
(Wiggins, J., dissenting)
CONSTRUCTION § 51.02 (4th ed. 1973)). “‘Where the Legislature omits language from
a statute . . . , this court will not read into the statute the language that it believes was
omitted.”’ State V. Cooper, 156 Wash. 2d 475, 480, 128 P.3d 1234 (2006) (quoting State
v. Moses, 145 Wash. 2d 370, 374, 37 P.3d 1216 (2002)). Thus, where the legislature
includes language in one statute but omits it in another, we must presume that different
meanings were intended. We recognized this principle in Swinomish, another case on
which the majority heavily relies. See Swinomish, 178 Wn.2d at 587 (“The legislature’s
choice of different words in another subsection of the same statute in which RCW
90.54.020(3)(a) appears shows that a different meaning is intended”). The fact that
“on a temporary basis” appears in the drought provisions but does not appear in the
OCPI exception thus suggests that the “temporary” restriction does not apply to the
OCPI exception.
In sum, if RCW 90.54.020(3)(a) and RCW 43.838.410 are not related, then
there is no basis for looking to the latter to discern the meaning of the former. And if
they are related, then the use of different language means that the statutes should be
construed differently. In either case, there is no basis for importing RCW
43.83B.410(1)(a)’s “on a temporary basis” restriction into RCW 90.54.020’s OCPI
exception.
I do not dispute that the WRA (Water Resources Act of 1971, chapter 90.54
RCW) should be construed broadly to achieve its purposes or that exceptions to its
provisions protecting minimum flows and prior appropriations should be construed
narrowly. But “construed narrowly” does not mean “read out of the statute,” nor does
it mean that we can read terms into a statute from other unrelated provisions in the
8
' Foster (Sara) v. Dep’t of Ecology, No. 9038'6-7
(Wiggins, J., dissenting)
RCWs. I would hold that the appellant’s arguments are inconsistent with these well-
established principles of statutory construction and that the appellant failed to
demonstrate that the PCHB erroneously interpreted and applied the law. I would vote
to affirm.
ll. Swinomish does not resolve this case
In reversing the PCHB and holding that the Board erroneously interpreted and
applied the law, the majority contends that two factors—the definition of “withdrawal
of water” and Swinomish—“larger resolve[ ] this case.” Majority at 7. Having shown
that the majority’s reliance on the word “withdrawal” is misplaced, i turn to Swinomish,
which similarly fails to support the majority. First, Swinomish is distinguishable from
this case because of fundamental differences of facts and procedural posture.
Second, the majority misstates this court’s holding in Swinomish.
I cannot agree with the majority that Swinomish “largely resolves this case,” id,
because the PCHB did not limit its decision to the three—step balancing test that we
rejected in Swinomish, relying instead on the extensive factual record and entering
unchallenged findings of fact justifying the approval of the Yelm permit. Swinomish
was a challenge to Ecology’s amendment of the rule adopting minimum flows in the
Skagit River. 178 Wn.2d at 576. An earlier case arose originally as a challenge
brought by Skagit County to the minimum instream flow rule adopted by Ecology. Id.
at 577. Skagit County and Ecology eventually settled the case based on Ecology’s
amendments to the original minimum instream flow rule described by this court:
The Amended Rule establishes 27 reservations for domestic, municipal,
commercial/industrial, agricultural irrigation, and stock watering out-of-
stream uses. WAC 173-503—073, ~075. The water for the new uses would
' Foster (Sara) v. Dep’t of Ecology, No. 90386—7
(Wiggins, J., dissenting)
not be subject to shut off during periods when the minimum flows set in
the 2001 lnstream Flow Rule are not met, usually in late summer and
early fall.
Id. at 578. The Swinomish Tribe, among others, challenged the amended rule, which
this court considered as a challenge to an administrative rule. Id. at 580.
This case, by contrast, is a challenge to a permit issued by Ecology, not a
complete revision of a previously'adopted minimum flow rule. Unlike Swinomish,
which involved 27 reservations of water from the Skagit River for various uses, this
case arises from a specific permit for a municipal water system that must have
' additional water so the city can absorb increased population consistently with the
Growth Management Act (chapter 36.70A RCW). Foster v. Dep’t of Ecology, PCHB
No. 11—155, at 3 (Mar. 18, 2013) (Finding of Fact (FF) 1). While the Swinomish
amended rule resulted from a settlement of a disputed lawsuit, this case arises from
a 20—year joint effort among Lacey, Olympia, and Yelm to cooperate in developing a
water rights acquisition strategy and implementing a mitigation strategy. Id. at 4 (FF
3). ““The joint effort allowed development of mitigation that none of the cities could
have accomplished had they acted alone.” Id. The PCHB found that this interlocal
approach “is a considered[,] preferential approach to management of water resources
because it allows for a larger single package of mitigation that is all connected.” Id.
at 13 (FF 19). And in further contrast to Swinomish, instead of litigating, the cities
worked with the Squaxin Island and Nisqually Tribes in identifying the best available
science, id. at 4 (FF 4), and with the tribes, Ecology, and the Department of Fish and
Wildlife (WDFW) in developing the mitigation plan. Id. at 4, 5 (FF 4, 5).
10
I Foster (Sara) v. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
In Swinomish, we reviewed the propriety of a rule adopted by Ecology to settle
a dispute over a potpourri of future water reservations that lacked a scientific basis.
We concluded, “Ecology's Amended Rule, which made 27 reservations of water for
out—of—stream, year-round noninterruptible beneficial uses in the Skagit River basin
and that would impair minimum flows set by administrative rule, exceeded Ecology's
authority because it is inconsistent with the plain-language of the statute and is
inconsistent with the entire statutory scheme.” 178 Wn.2d at 602; see RCW
34.05.570(2)(c). Here, by contrast, we review an adjudication, in which the PCHB had
the benefit of testimony and exhibits and entered extensive findings of fact and that
we review for substantial evidence. RCW 34.05.570(3)(e). The PCHB had the benefit
of our Swinomish decision and did not rely on the somewhat simplistic balancing test
Ecology had applied, but recognized multiple additional factors justifying the Board’s
substantial findings of fact. See infra.
The PCHB recognized that Ecology applied a three-step balancing test when
Ecology approved Yelm’s application. Foster, PCHB No. 11-155, at 21 (Conclusions
of Law (CL) 16). Ecology considered the extent of public interests promoted by the
application, the harm to public interests caused, and whetherthe public interests being
served clearly overrode the public interests being sacrificed. Id. But the PCHB also
concluded that the facts of this case required the use of a “more stringent test,” id. at
22 (CL 17), and identified additional factors that supported granting Yelm’s application.
Ecology approved the permit only after augmenting Ecology’s three-step analysis with
12 additional factors considered by Ecology:
11
’ Foster (Sara) v. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
“1.
“2-
(l3.
“4.
“5'
(l6.
“7.
H8.
“9.
“10.
“11.
“12.
Ecology will use the OCPI exception only when the water is to be
used for a public purpose.
Ecology exhausted every feasible option to make sure that in-kind
mitigation (water for water) was provided before turning to out-of-
kind mitigation.
All depletions/impacts to the water bodies subject to the minimum
flows or stream closures were fully mitigated and trackable over
time.
If out—of—kind mitigation was relied on, the benefits to fish and
stream habitat, and to the values of the water body, were
significant and clearly established through sound science.
The out—of—kind mitigation provided a permanent and net
ecological benefit to the affected streams, and was more than
sufficient to offset the minor depletion of water.
The potential impacts to water bodies were based upon a
conservative hydrologic model.
The hydrologic model was prepared by an external consultant who
is a professional modeler, and was subject to a rigorous peer
review, and can be modified if needed.
The amount of water depletion was so small that there is no or
only minimal impact to water resources.
Water can be added if feasible during critical times for fish, and
should not be diminished during such critical times.
Stakeholders were bought into and supported the proposed
project and mitigation.
Mitigation was consistent with adopted watershed plans.
Water conservation efforts will be utilized, which in this case
includes the use of reclaimed water.”
Id. at 23-24 (CL 19).
It is true, as noted, that Swinomish disapproved of Ecology’s three—step test for
evaluating the OCPI exception, reasoning that Ecology’s balancing analysis “would
12
I Foster (Sara) v. Dep’t of Ecology, No. 9038’6-7
(Wiggins, J., dissenting)
nearly always treat beneficial uses as [OCPI] so long as the benefits outweighed the
harm resulting from impairing the minimum flows.” Majority at 7. But as is clearly
shown here, and in contrast to Swinomish, the PCHB’s decision was not based on
any simplistic balancing analysis. Rather, Ecology approved Yelm’s permit only after
two decades of study; adoption of a sophisticated and conservative model; numerous
refinements of Yelm’s proposal; development of an extensive mitigation plan; and
collaboration among Yelm, Olympia, Lacey, Ecology, WDFW, and the affected
Squaxin Island and Nisqually Tribes.
In addition to ignoring the fundamental differences in the posture and facts
between this case and Swinomish, the majority misstates our holdings in Swinomish.
The majority states that in Swinomish “we emphasized that the OCPI exception is ‘not
a device for wide—ranging reweighing or reallocation of water.” Majority at 7 (quoting
Swinomish, 178 Wn.2d at 585). This is a truncated quotation and is therefore
misleading. The full phrase reads the OCPI exception is “not a device for wide—ranging
reweighing or reallocation of water through water reservations for numerous future
beneficial uses.” Swinomish, 178 Wn.2d at 585 (emphasis added for words omitted
from majority opinion). Unlike the expansive reservations for future water use that we
rejected in Swinomish, the water permit issued to Yelm by Ecology is not a “wide-
ranging reweighing or reallocation of water.” Id.
In short, the outcome of this case is not determined by Swinomish or by the
majority’s mistaken interpretation that the legislature uses the terms “withdraw” or
“withdrawal” only when it intends that the withdrawal be temporary. Rather, the Board
recognized the limitations on using the OCPI exception merely to provide for
13
' Foster (Sara) v. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
increased population, and the Board properly considered the mandate by this court to
narrowly limit the OCPl exception, see Foster, PCHB No. 11-155, at 25 (CL 21) (citing
Postema, 142 Wash. 2d 68), in granting Yelm’s request for withdrawals. Accordingly,
appellant fails to demonstrate the Board erroneously interpreted and applied the law
in holding that Ecology acted within its authority.
Ill. The findings of fact support the decision of the PCHB
Having shown that the majority’s reasons for reversal are erroneous and having
rejected appellant’s arguments that Ecology exceeded its authority, the only issue
remaining for decision is whether, as a matter of law, the PCHB properly upheld
Ecology’s conclusion that these findings constitute overriding considerations of public
interest sufficient to justify the permit. The Administrative Procedure Act, chapter 34.05
RCW, governs proceedings before the PCHB. Postema, 142 Wn.2d at 77. We review
the PCHB’s decision for error, sitting in the same position as the superior court. Waste
Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm’n, 123 Wash. 2d 621, 633, 869 P.2d 1034(1994). When a party challenges the Board’s application of law to a particular set of
facts, “‘the factual findings of the agency are entitled to the same level of deference
which would be accorded under any other circumstance.” Port of Seattle v. Pollution
Control Hr’gs Bd., 151 Wash. 2d 568, 588, 90 P.3d 659 (2004) (quoting Tapper v. Emp’t
Sec. Dep’t, 122 Wash. 2d 397, 403, 858 P.2d 494 (1993)). The process of applying the
law to the facts is a legal question subject to de novo review. Id.
The findings in this case, ignored by the majority, are substantial. They are also
uncontested; we treated uncontested facts as verities on appeal. Tapper, 122 Wn.2d
at 407. Yelm has only 147 additional water service connections available under its
14
‘ Foster (Sara) v. Dep’t of Ecology, No. 9038‘6—7
(Wiggins, J., dissenting)
current Department of Health connection limit. Foster, PCHB No. 11-155, at 3 (FF 1).
Yelm will be required to obtain additional water rights to meet the demand for
population increases in the future in accordance with the Growth Management Act. Id.
Waterforecasts indicate that by 2028 Yelm will need an additional water source of 942
acre feet per year (AFY). Id.
In 1994, Yelm applied for a permit to appropriate groundwater for municipal
supply purposes in the amount of 3,500 AFY, which was eventually reduced to 942
AFY. Id. (FF 2). The cities of Yelm, Olympia, and Lacey all had pending water right
applications and entered into an interlocal agreement to develop a strategy for water
rights acquisition and implementation of a mitigation strategy. Id. at 4 (FF 3). “Thejoint
effort allowed development of mitigation that none of the cities could have
accomplished had they acted alone." Id. The PCHB found that this interlocal approach
“is a considered[,] preferential approach to management of water resources because
it allows for a larger single package of mitigation that is all connected.” Id. at 13 (FF
19).
Yelm asked to pump groundwater from a specific well, and it was necessary to
quantify the impact of pumping on the surface water rivers, streams, and lakes. The
model used to measure this impact was developed in 1999 by the United States
Geological Survey and refined over time. Id. at 4 (FF 4). The Nisqually and Squaxin
Island Tribes provided input into subjecting the model to peer review. The model is
considered to be conservative in overpredicting the depletion of surface waters as a
result of pumping. Id. “Ecology considers the groundwater model to be best available
science.” Id.
15
I Foster (Sara) v. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
The model predicted that flows would be depleted in portions of the lower
Nisqually and Deschutes watersheds, requiring mitigation. Id. at 5 (FF 5). The cities
of Yelm, Olympia, and Lacey met with various agencies, including the Squaxin island
Tribe, Ecology staff, and WDFW staff to consider ways to mitigate the proposed
withdrawals. Id. As a result, Yelm developed a mitigation strategy that Ecology then
required as a condition of approval of Yelm’s requested water right. Id. Ecology
required that mitigation be prioritized: the preferred mitigation was “‘water for water, in
time and in place, e.g., substituting depleted water with water from an alternative
source. Id. Failing that possibility, water was to be made available for critical flow
periods on a river or stream. “The last mitigation option was ‘out-of—kind’ mitigation,
such as projects to restore and enhance streams and habitats.” Id.
The model predicted the impacts of Yelm’s requested withdrawals as follows. I
Nisqually River Basin. The bulk of the impacts occur below river mile (RM) 4.3
in the lower Nisqually River. Id. at 6 (FF 7). The area below RM 4.3 is not subject to
the instream flow rule. Id. Moreover, Yelm’s request would have very little, if any,
impact on fish in the lower Nisqually because it is an intertidal area that is part of a
large body of water. Id. at 7 (FF 8). The focus of enhancement and restoration is on
the upper Nisqually. Id.
Yelm Creek. Yelm Creek “virtually dries up in the summer and flows during the
winter.” Id. (FF 9). The predicted impact of Yelm’s request would be to deplete the
creek of approximately 38 AFY, with the maximum depletion in April. Id. The mitigation
plan calls for Yelm to recharge the aquifer for the creek with 56 AFY of reclaimed
water. Id. Yelm Creek is already “severely degraded.” Id. at 8 (FF 10). Yelm’s mitigation
16
' Foster (Sara) v. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
plan includes several possible projects that will enhance fish habitat in the creek. Id.
Ecology’s position is that Yelm must complete these projects or their equivalent in
order to comply with its permit. Id.
McAllister Creek. The city of Olympia is providing mitigation for McAllister
Creek, terminating its withdrawals from McAllister Springs and moving to a new well
field, which will increase stream flows by 9 to 17 cubic feet per second. Id. at 9 (FF
11).
Woodland Creek. The impact on Woodland Creek is too low for the model to
predict except for October, when the predicted impact is 14.6 AFY. Id. (FF 12). Yelm,
Olympia, and Lacey are purchasing 20 acres of land along the creek to preserve the
land from development, allowing rainfall to be absorbed into the ground and gradually
recharge the creek to help protect fish. Id. at 10 (FF 13). “The rainfall storage and
release provides a two to one mitigation value for the slightly lesser flows.” Id. In
addition, a reclaimed water infiltration facility will be built to infiltrate reclaimed water
into the creek from May through October. Id.
Upper Deschutes Basin. Yelm, Olympia, and Lacey purchased two
summertime irrigation rights in the Upper Deschutes Basin and will retire these rights
to mitigate depletions from the Deschutes River. Id. (FF 14). The cities will also install
channel features that will improve habitat forfish. Id. The summertime irrigation rights
will not provide needed mitigation in April and October. Id. at 11 (FF 15). “At Ecology’s
insistence, Yelm sought to purchase other water rights to cover this shoulder
[season], but was unable to find any such rights available.” Id.
17
Foster v. Dep ’t ofEcology, No. 903 86-7
Foster then appealed PCHB’s decision in Thurston County Superior Court.
While this appeal was pending there, we decided Swinomz'sh, where we directly
addressed the applicability of the OCPI exception. The superior court considered
this case in light of SWinomz'sh' and affirmed PCHB’s decision. Foster was granted
direct review to this court.
2 STANDARD OF REVIEW
Foster argues that Ecology exceeded its statutory authority in approving
Yelm’s water permit under the OCPI exception. This challenge proceeds under the
Administrative Procedure Act, chapter 34.05 RCW, and a court must invalidate
any agency rule or order that exceeds the agency’s statutory authority. RCW
34.05.57 0. Our interpretation of the law is de novo, and our goal is to effectuate
legislative intent, giving effect to the plain meaning of ordinary statutory language
and the technical meaning of technical terms and terms of art. SWz'nomz'sh, 178
Wn.2d at 581. We sit in the same position as the superior court and review PCHB’S
decision in light of the agency record. Postema v. Pollution Control Hr ’gs Bd, 142
Wash. 2d 68, 77, 11 P.3d 726 (2000).
ANALYSIS
In Swinomish, we analyzed Washington’s water statutes and our case law in
determining the scope of Ecology’s authority to use the OCPI exception to impair
minimum flows. Several foundational principles of water law bear repeating.
' Foster (Sara) v. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
Steven Boessow, who works as a water rights biologist for WDFW, reviews
about 200 water right applications per year, evaluating potential impacts on fish. Id. at
5—6 (FF 6). Boessow became involved with the Yelm application in 2005. Id. He met
with Ecology, Yelm, Olympia, Lacey, the Nisqually Tribe, and the Squaxin Island Tribe.
Id. He visited each site at which mitigation is planned and is familiar with the details
of the plan. Id. Boessow was one of the primary witnesses before the PCHB, which
repeatedly cited his testimony in its findings, including his conclusion about the
Deschutes River. “Because of the many year—round benefits provided by the other
beneficial aspects of the Deschutes mitigation package, Mr. Boessow considered the
depletions to the Deschutes River to be fully mitigated from a fish and wildlife
perspective, even in April and October, with more habitat being available for fish.” Id.
at 11—12 (FF 16).
The small depletions predicted by the model caused Ecology to analyze the
Yelm application under the OCPI exception even though both Ecology and other
interested parties believed that the combined in—kind and out-of—kind mitigation
measures outweighed any impact to the watersheds. Id. at 12 (FF 18). Ecology
performed the OCPI evaluation even though the model was considered to overpredict
impacts. Id.
The PCHB noted that plaintiff Foster failed to present any expert testimony
challenging the adequacy of the mitigation provided by Yelm. Id. at 13 (FF 21). Indeed,
Foster failed to present any evidence at all except through cross-examination of the
Ecology and WDFW witnesses, “all of whom testified to the adequacy of the mitigation
18
I Foster (Sara) V. Dep’t of Ecology, No. 90386-7
(Wiggins, J., dissenting)
plan to address modeled stream and river depletions.” Id. The PCHB found “that the
Appellant has failed to show that the mitigation provided by Yelm is inadequate.” Id.
One finding of fact sets out the finding of the PCHB that Ecology’s decision to
grant Yelm’s request satisfied the test for OCPI:
The Board finds that the majority of depletions to various affected
surface water bodies from Yelm pumping of SW Well 1A are fully
mitigated with in-kind water, and those that are not fully mitigated with in-
kind water, have been mitigated with out-of—kind efforts that serve as a
substantial and compelling basis for Ecology’s OCPI determination.
Id. at 14 (FF 24). The PCHB elaborated on this finding in a conclusion of law:
The evidence provided by experienced experts demonstrates that Yelm
will fully mitigate any impacts from pumping SW Well 1A with in-kind
mitigation, supplemented with out—of—kind actions to address the small
amount of depletions in flow. When mitigation is provided out—of—kind,
close scrutiny is required to ensure that this mitigation does, in fact,
provide enhanced value to fish habitat and the values of the particular
water body. Respondents demonstrated that the amount of value
provided by the out-of—kind mitigation in this case will clearly benefit fish
and the hydrology of the water body, and in some instances will address
limiting factors that have been identified as barriers to salmon recovery.
Indeed, the only evidence before the Board was that the mitigation plan
offered by the cities was large in size and scope, feasible and funded as
a single, interconnected package, and overall, excellent and effective.
Boessow Testimony. The in-kind mitigation includes increasing the
amount of water available in the Deschutes River during a critical life
stage of Chinook salmon when water levels are generally lower, direct
infiltration of water to the ground for recharge (Yelm Creek), and
increased flow to surface waters due to changed well-pumping
(McAllister Creek).
Id. at 15—16 (CL 3).
Based on these findings and conclusions, as well as the more stringent
balancing test adopted following Swinomish, the PCHB properly concluded that
“Ecology correctly concluded that ‘overriding considerations of public interest’ allow
withdrawals of water from the affected streams beyond that allowed by in—stream flow 7
19
" Foster (Sara) v. Dep’t of Ecology, No. 90386—7
(Wiggins, J., dissenting)
and closure rules.” Id. at 24 (CL 21). In reaching this conclusion, the Board also
considered it important that the modeled water depletion was small and the value of
mitigation high, that water conservation was an element, and that the application was
supported by multiple sectors and parties. Id. at 24-25 (CL 21). The Board also
cautioned that use of the OCPI exception would not be appropriate “based merely on
the need to serve additional population with increased water supplies, nor where the
mitigation offered was frail in comparison to the effects on instream flows and
closures.” Id. at 25 (CL 21).
The majority rejects the PCHB’s conclusion that the value of the mitigation plan
should be factored into the determination of whether OCPI justifies granting the
permit. Majority at 11-12. I disagree. I would hold that the mitigation plan is an
important part of weighing the OCPI because the mitigation neutralizes any depletion
of water flow. As a result, a substantial supply of water is made available to the public
in return for a net ecological gain resulting from the mitigation plan. The whole point
of the mitigation effort is to neutralize the detriment of a possible reduction in stream
flow. It is unreasonable to ignore the effect of the mitigation plan. I would therefore
affirm.
CONCLUSION
Yelm’s proposed withdrawal of groundwater and extensive mitigation plan is
justified by overriding considerations of public interest. I would affirm the PCHB and
uphold the Yelm permit.
20
) Foster (Sara) v. Dep’t of Ecology, No. 90386—7
(Wiggins, J., dissenting)
| dissent.
21
Foster v. Dep ’t ofEcology, No. 903 86—7
Minimum flows are established by administrative rule and have a priority date as
of the rule’s adoption. These flows are not a limited water right; they function in
most respects as any other water appropriation. As such, they are generally subject
to our State’s long-established “prior appropriation” and “first in time, first in
right” approach to water law, which does not permit any impairment, even a de
minimis impairment, of a senior water right. Minimum flows, however, differ from
other water appropriations in one respect: “withdrawals of water” that would
impair a‘ minimum flow are permitted, but only under the narrow OCPI exception.
It reads:
(3) The quality of the natural environment shall be protected
and, where possible, enhanced as follows:
(a) Perennial rivers and streams of the state shall be retained
with base flowsm necessary to provide for preservation of wildlife,
fish, scenic, aesthetic and other environmental values, and
navigational values. Lakes and ponds shall be retained substantially in
their natural condition. Withdrawals of water which would conflict
therewith shall be authorized only in those situations where it is clear
that overriding considerations of the public interest will be served.
RCW 90.54.020 (emphasis added). This final sentence is the OCPI exception.
When evaluating applications for water permits,such as Yelm’s, RCW
90.03.290(3) requires a permit to satisfy four criteria: (1) water is available for
1 We have previously held that “base flows” and “minimum flows” are synonymous for
purposes of this exception. Postema, 142 Wn.2d at 81. This opinion uses the term “minimum
flows” as a matter of consistency.
Foster v. Dep ’t of Ecology, No. 90386-7
appropriation (2) for a beneficial use and that (3) an appropriation will not impair
existing rights or (4) be detrimental to the public welfare. As we have recognized,
“A minimum flow is an appropriation subject to the same protection from
subsequent. appropriators as other water rights, and RCW 90.03.290 mandates
denial of an application where existing rights would be impaired.” Postema, 142
Wn.2d at 82. Yelm’s water permit will impair the existing minimum flows;
therefore, all parties agree that Yelm’s permit application must be denied unless
the OCPI exception applies.
The facts of this case somewhat mirror those in Swinomish. There, Ecology
had approved. 27 general future reservations of water in the Skagit Basin, which
would impair existing minimum flows. Because of this impairment, Ecology could
approve these reservations only under the OCPI exception, using a three—step test
of its own devising.2 Under this analysis, Ecology determines (1) the extent of the
public: interests served by the proposed reservations, (2) the extent of any harm to
the public interests caused by the reservations, and finally (3) whether the public
interests served clearly override the harm to public interests; in essence, a simple
balancing scheme. Ecology applied its three—step test to the proposed Skagit
I 2 Ecology did not cite any rule or policy for this test. Swinomish, 178 Wn.2d at 583 n.6.
6
Foster v. Dep ’2‘ ofEcoZogy, No. 903 86—7
reservations, concluded that the benefits outweighed the harms, and approved the '
reservations under the QCPI exception.
We reverse-d, rejecting Ecology’s three—step test and its application of the
OCPI exception. We reasoned that Ecology’s balancing analysis Would nearly
always treat beneficial uses as “overriding consideration[s] of the public interest”
so long as the benefits outweighed the harm resulting from impairing the minimum
flows. Swinomish, 178 Wn.2d at 586-87. This conflicts with the principle that
statutory exceptions are constrUed narrowly in order to give effect to the legislative
intent underlying the general provisions. Moreover, we emphasized that the OCPI
exception is “not a device for wide—ranging reweighing or reallocation of water.”
Swinomish, 178 Wn.2d at 585. Rather, “[t]he [OCPI] exception is very narrow . . .
and requires extraordinary circumstances before the minimum flow water right can
be impaired.” Swinomish, 178'Wn.2d at 576. Ecology’s use of the exception was
an end-run around the normal appropriation process, conflicting with both the prior
appropriation doctrine and Washington’s comprehensive water statutes.
A Swinomish and the plain language of the OCPI exceptionwspeciflcally,
“withdrawals of waterf—wlargely resolves this case. We presume the legislature
intends a different meaning when it uses different terms. State v. Raggenkamp, 153
Wn.p2d 614, 625, 106 P.3d ‘196 (2005). “Appropriation”_ is a term of art specifically
Foster v. Dep ’t ofEcology, No. 903 86—7
used in the water rights context. For example, Washington’s earliest codification of
the water. code. reads in part: .
‘ Subject to existing rights all waters within the state belonglto the
public, and any right thereto, or to the use thereof, shall be hereafter
* acquired only by appropriation fora beneficial use and in the manner
provided and not. otherwise; and, as between appropriations, the first
in time shall be the first in right.
RCW 90.03.010 (emphasis added). Washington’s other interrelated statutes
concerning water rights aISO use “appropriation” to mean the assignment of a
permanent legal water right.
‘ “Withdrawal,”however, means something different. Generally,
“withdrawal” refers to the physical act of removing water. Under the water code,
withdrawalis often joined with diversion, emphasizing the physical nature of the
term. See RCW 90.03.550 (“Beneficial uses of water under a municipal water
supply purposes ‘water right may inclUde water withdrawn or diverted under such a
right . . _. .”). The water code also refers to “withdrawal rates,” a term that would
not make sense if “withdrawal” meant the same as “appropriation.” See RCW
90.03 383(3) (“and further provided that the water used is within the instantaneous
and annual withdrawal rates specified in the water right permit”). Finally, the water
code uses both “appropriation” and “withdrawal” in the same statutory provision,
furtherindicating that the legislature does not intend the two terms to be
synonymous. See RCW 90.03.370(4) (“Nothing in chapter 98, Laws of 2000 .
i 8
F aster v. Dep ’2‘ of Ecology, No. 903 86—7
.changes the requirements of existing law governing issuances of permits to
appropriate or withdraw the waters of the state”). The term “withdrawal,” unlike
“appropriation,”,carries with it no suggestion that it includes the permanent
assignmentof a legal. water right. The terms have different meanings.
Washington’s statutory scheme, analyzed as a whole, also supports this
conclusion. For example, Ecology is permitted to authorize an emergency
“withdrawal” of public surface and ground waters during drought conditions “on a
temporary-basis.” RCW 43.83B.410(1)(a). Significantly, Ecology is prohibited
from “reduc[ing] flows or levels below essential minimums.” RCW
43.83-BI.410(1)(a).(iii). Withdrawal authorizations under this statute must also
contain a provision that terminates the withdrawal if it conflicts with the flows set
as essential minimums. RCW 43.83B.4il10(l)(b).3
' Reading the language the OCPI exception together with the emergency
drought provision in‘RCW 43.83B.4l0, we arrive at two conclusions. First, when
thelegisl-ature intends for the assignment of a permanent legal water right, it uses
the term “appropriation”; when it intends for only the temporary use of water, it
" ' '3 “EsSential minimums” are levels “necessary (A) to assure the maintenance of fisheries
requirements, and (B) to protect federal and state interests including, among others, power
generation, navigation, and existing water rights.” RCW 43.83B.410(1)(a_)(iii). Whether these
“essential minimums” are the same as “base flows” or “minimum flows” is not before this court,
but we note they appear conceptually similar.
Foster v. Dep ’t ofEcology, No. 903 86—7
uses the term “withdrawal.” And second, the statutory Scheme as a whole
rigorously protects minimum flows/essential minimums by not permitting the
temporary withdrawal of water that would impact essential minimums even in the
case of drought. Ecology’s use of the OCPI exception conflicts with both these
conclusiOns. I I i
We hold that the OCPI exception does not allow for the permanent
r impairment of minimum flows. If the legislature had intended to allow Ecology to
approve permanent impairment of minimum flows, it would have used the term
“appropriations” in the OCPI exception. It did not. The term “withdrawals of
water,” however? shows a legislative intent that any impairment of minimum floWs
must be temporary. The plain language of the exception does not authorize
Ecologyvto approve Yelm’s permit, which, like the reservations in Swinomish, are
permanent legal water rights that will impair established minimum flows
indefinitely. I
. This conclusion was also implicit our holding in Swinomish. We
acknowledged that the QCPI exception allows for the impairment of minimum
flows. Sea Sw'z'nomz'shi 178 Wn.2d at 57 6. But we did not hold that the exception
permits appropriation of minimum flows. Quite the contrary: we held that
“[n_]othing in thelanguage used in RCW 90.54.020(3)(a) says that the overriding-
considerations exception is intended as an alternative method for appropriating
10