Center For Environmental Law & Policy v. State Of Washington

Filed
Washington State
Court of Appeals
Division Two
June 26, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CENTER FOR ENVIRONMENTAL LAW & No. 51439-7-II
POLICY, AMERICAN WHITEWATER, and
SIERRA CLUB,
Appellants,
v.
STATE OF WASHINGTON DEPARTMENT PUBLISHED OPINION
OF ECOLOGY,
Respondent.
LEE, A.C.J. — In 2015, the Department of Ecology (Ecology) promulgated an
administrative rule that establishes minimum instream flows of 850 cubic feet per second (cfs)1
for the lower reach of the Spokane River during summer months (Rule). Ecology’s primary basis
for establishing a minimum instream flow was to protect and preserve fish habitat within the river.
1
The legally recognized unit of measurement for flowing water is one cubic foot of water per
second of time. RCW 90.03.020.
No. 51439-7-II
The Center for Environmental Law & Policy (Center),2 the Sierra Club,3 and American
Whitewater (collectively CELP) challenge the validity of this Rule, arguing that it exceeds
Ecology’s statutory authority and is arbitrary and capricious. Specifically, CELP relies on a
provision of the Water Resources Act of 1971 (WRA) to argue that Ecology was required to
establish a minimum instream flow that protects multiple enumerated instream values, not just
fish. CELP also argues that the Rule violates the public trust doctrine and challenges Ecology’s
exclusion of certain documents containing instream flow recommendations from its rule-making
file.
We hold that the Rule is not reasonably consistent with the WRA, and therefore, it exceeds
Ecology’s rule-making authority. We also hold that the Rule was adopted without regard to the
attending facts and circumstances, and is therefore arbitrary and capricious. However, we reject
CELP’s challenges based on the public trust doctrine and adequacy of Ecology’s rule-making file.
Accordingly, we hold that the Rule is invalid.
FACTS
A. THE SPOKANE RIVER
The Spokane River is a shared resource between Washington and Idaho. It begins in
northwestern Idaho, flows west through the City of Spokane, and eventually connects to the
Columbia River in eastern Washington.
2
The Center is a nonprofit organization whose mission is to protect and promote stewardship of
Washington’s freshwater resources through public education, advocacy, policy reform, and public
interest litigation.
3
The Sierra Club is a national nonprofit organization whose mission is to protect, explore, and
enjoy the planet.
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No. 51439-7-II
The Spokane River is an important economic, recreational, and cultural attraction in the
Spokane area. Spokane residents regularly use the river for boating, tubing, swimming, and
fishing. The river also draws regional visitors when its flows are sufficient to support boating
opportunities. A number of small businesses depend on the river to provide recreation-based
activities, including river rafting, kayaking, tubing, and guided fishing trips. The river is a central
feature of the region’s identity, and Spokane residents view the river as an integral part of their
community.
B. AVISTA CORPORATION’S DAMS
Stream flow4 on the Spokane River is controlled by a series of dams owned and operated
by Avista Corporation. Avista operates its dams under a license issued by the Federal Energy
Regulatory Commission (FERC) in 2009. The license requires Avista to maintain specific
minimum stream flows in the Spokane River throughout the year. Between June 16 and September
30, Avista must operate its Upper Falls and Monroe Street dams to provide minimum stream flows
of 850 cfs.
As part of the relicensing process, Avista conducted several studies to evaluate the potential
influence of its operations on the natural resources in its hydroelectric project area. Some of these
studies examined the general habitat characteristics and spawning activity of trout and mountain
whitefish in the Spokane River. Two studies evaluated the relationship between effective fish
spawning and stream flows in various reaches of the river. Avista also conducted a whitewater
4
Stream flow is the volume of water that flows down a river or stream and is measured in cubic
feet per second. Instream flows are the regulatory stream flow thresholds used by Ecology to
determine whether there is water to withdraw for new uses while still protecting fish and other
instream resources.
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paddling instream flow assessment study, which assessed whitewater boating opportunities on the
Spokane River at different stream flows. Nearly all whitewater survey participants preferred flows
higher than 1,353 cfs to support boating on the lower reach of the river (downstream of the Upper
Falls and Monroe Street dams).
C. ECOLOGY RULEMAKING
1. The Spokane Valley-Rathdrum Prairie Aquifer and Municipal Water Supply
The Spokane Valley-Rathdrum Prairie Aquifer underlies the Spokane River. It is the sole
source of municipal water supply for the area. The aquifer and the river are highly interactive.
Any withdrawal of water from the aquifer has a direct and immediate impact on river flows.
Increased groundwater use from the aquifer has led to a decrease in river flows. In the early 1990s,
Ecology determined that the river’s low flows in late summer were continuing to decline. This
prompted Ecology to stop issuing new groundwater rights allowing withdrawals from in the
aquifer.
2. Instream Flow Rulemaking
The state Water Code, chapter 90.03 RCW, authorizes Ecology to set minimum stream
flows for a river or stream through a collaborative process with watershed planning groups.5 RCW
90.03.247(2);6 RCW 90.82.080(1)(a)(ii). Ecology began working with watershed planning groups
5
A watershed is an area of land where all of the water that falls into it drains into a common
outlet. UNITED STATES DEPARTMENT OF THE INTERIOR, THE USGS WATER SCIENCE SCHOOL,
https://water.usgs.gov/edu/watershed.html (last visited June 17, 2019). A watershed planning
group is comprised of local governments, who convene and collaborate on their desired
management practices for the watershed.
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in 1998 to develop instream flow protection for the Spokane River. The watershed planning groups
were unable to achieve consensus regarding the minimum instream flows that should be adopted
for the Spokane River. Because the members of the watershed planning unit were unable to reach
consensus, Ecology initiated rulemaking under the Washington Administrative Procedures Act
(APA) to establish minimum instream flows. RCW 90.82.080(1)(a)(ii), (c).
Ecology commenced formal rulemaking in January 2014. Ecology’s draft Rule proposed
a minimum instream flow of 850 cfs for the downriver reach of the Spokane River between June
16 and September 30, as measured at the Spokane gage,7 which is located downstream of the
Monroe Street dam. Ecology based this instream flow on the recommendation of the Washington
Department of Fish and Wildlife’s (WDFW) instream flow biologist Hal Beecher. Beecher
initially recommended a minimum instream flow between 900 and 1,050 cfs from July 1 to
September 30, as measured at the Spokane gage. Several years later, in May 2012, Beecher
recommended minimum instream flow of 850 cfs between June 16 and September 30, as measured
at the Spokane gage. Beecher’s 2012 instream flow recommendation was based on the above
discussed trout and whitefish spawning studies, which were conducted as part of Avista’s dam
relicensing process in 2009. Beecher later qualified this recommendation and emphasized that the
6
RCW 90.03.247 has been amended since the events of this case transpired. However, the
amendments do not materially affect the statutory language relied on by this court. Accordingly,
we refrain from including the word “former” before RCW 90.03.247.
7
The U.S. Geological Survey (USGS) (the sole science agency for the Department of the Interior)
measures streamflow of rivers through stream gages placed at certain locations in the river. USGS,
HOW STREAMFLOW IS MEASURED, https://www.usgs.gov/special-topic/water-science-
school/science/how-streamflow-measured?qt-science_center_objects=0#qt-
science_center_objects (last visited June 17, 2019).
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proposed summer flows were “not perceived by [him] as enhancement, rather as a floor.”
Administrative Record (AR) at 14233.
During the rulemaking comment period, Ecology received hundreds of public comments
critical of the 850 cfs minimum instream flow in its proposed Rule. Many of these comments
asked Ecology to conduct additional studies on how the proposed 850 cfs minimum instream flow
at the lower reach of the river would impact recreation, aesthetics, navigation, water quality,
temperature, and broader ecosystem values. Other commenters asked Ecology to assess climate
change and interstate implications of the proposed Rule. Small recreational business owners
commented that they would be unable to provide recreational river activities, such as float and
canoe trips, at the proposed 850 cfs summer flows.
The Center and the Sierra Club sent Ecology a combined comment letter criticizing the
proposed Rule, along with 43 electronic documents covering a range of topics, including the return
of anadromous fish to the Columbia River, scenic and aesthetic flows in the Spokane River, climate
change, fish studies, interstate water issues, and recreational use of the river. The Center and the
Sierra Club also provided Ecology with a photographic inventory of 37 key observational points
located on the downriver reach of the Spokane River, obtained at five different summer flows.
One of these photos showed researchers floating the river in a hard shell kayak in July 2015 at
about 770 cfs. Another photo showed people floating down the river in tubes at 770 cfs. And
another photo showed a boat navigating the river at 770 cfs. However, the Center and the Sierra
Club cautioned that this 770 cfs flow would be unsuitable for larger commercial rafts. American
Whitewater, a nonprofit river conservation organization, also sent Ecology a letter in which it
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claimed, based on surveys it conducted, that acceptable flows for kayaking, canoeing, and rafting
the Spokane River were between 1,500 cfs and 15,000 cfs, with 5,000 cfs as an optimal flow.
Ecology claimed that it considered all of these comments and materials it received during
the rulemaking process. Specifically, Ecology stated that it “considered the recreational, aesthetic,
and navigational values at multiple stages throughout the process of establishing these instream
flows for the river.” AR at 3283. However, Ecology rejected the recreational flow criteria of the
river in establishing instream flows. Ecology “chose[] not to establish instream flow values based
on those recreational needs expressed during the FERC process or any other process including this
comment period.” AR at 2985.
Instead, Ecology “chose to rely on studies of fish habitat to establish instream flow levels.”
AR at 3283. Ecology made clear throughout rulemaking that its proposed minimum instream
flows were “based upon fish habitat studies,” and were “needed for fish survival, including both
whitefish and redband trout.” AR at 79, 66. Ecology summarily concluded that instream flows
that protect fish habitat would also protect the recreational and aesthetic values of the river.
Ecology adopted the Rule in January 2015, and it became effective in February 2015. The
Rule establishes minimum instream flows of 850 cfs on the lower reach of the Spokane River, as
measured at the Spokane gage downstream of the Monroe Street dam.8 WAC 173-557-050.
8
The Rule also establishes minimum instream flows for other months of the year. WAC 173-
557-050. And it establishes minimum instream flows for the upper reach of the Spokane River,
as measured at the Greenacres gage. WAC 173-557-050. However, the only instream flow at
issue in this appeal is the instream flow established for the lower reach of the river between June
16 and September 30, as measured at the Spokane gage, which is located downstream of the
Monroe Street dam.
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A minimum instream flow established by administrative rule, including Ecology’s 2015
Rule, is an appropriation of water with a priority date of the rule’s effective date. RCW 90.03.345.
Water appropriated prior to adoption of the Rule are senior water rights and are not affected by the
Rule. However, appropriations after the Rule is established are junior water rights and are
interruptible if flow on the Spokane River decreases below the minimum instream flows specified
in the Rule. Ecology plans to use the minimum instream flows established by the Rule to manage
future water withdrawals from the Spokane River and the aquifer that underlies it. The Rule also
establishes Washington’s legal interests in the water of the river and aquifer in the event of
interstate conflict.
D. PETITION TO AMEND THE RULE
In February 2016, CELP submitted a joint petition asking Ecology to amend the Rule and
increase the 850 cfs summer minimum instream flows as measured at the Spokane gage.9 Ecology
denied the petition in April.
In May, CELP brought suit against Ecology, challenging the validity of the instream flow
Rule under the APACELP claimed that the portion of the Rule setting minimum summer instream
flows at 850 cfs exceeded Ecology’s statutory authority and was arbitrary and capricious. CELP
also argued that Ecology had failed to fulfill its responsibilities under the Public Trust Doctrine in
adopting the Rule.
CELP also filed a motion to supplement the record before the superior court with three
documents related to the Avista dam relicensing process and watershed resource planning
9
CELP also asked Ecology to amend the minimum summer instream flow established for the
Greenacres gage, but that request is not a subject of this appeal.
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No. 51439-7-II
processes for the region. The specific documents CELP requested be added to the rule-making
file were: (1) Ecology’s comments to FERC during Avista’s dam relicensing, (2) an April 23,
2007, memo in which Beecher noted that habitat rearing at the Spokane gage peaks at 1040 cfs,
and (3) a June 30, 2004, document in which Beecher recommended a minimum discharge of 700
cfs at the Post Falls dam. Ecology opposed the motion and submitted declarations in opposition.
Three of the agency’s rule writers submitted declarations, stating that the documents were not in
their custody during the rulemaking process and that they did not consider them when making
decisions to set summer minimum instream flows at 850 cfs.
The superior court denied CELP’s motion to supplement the record with these three
documents. The superior court later denied CELP’s petition challenging the validity of the Rule.
CELP petitioned for direct review at the Washington Supreme Court. After briefing was
complete, the Supreme Court transferred the case to this court.
ANALYSIS
A. VALIDITY OF THE RULE
CELP argues that the 850 cfs summer minimum instream flow established in Ecology’s
Rule is invalid because it exceeds Ecology’s statutory authority and is arbitrary and capricious.
We agree.
1. Legal Principles
A challenge to the validity of an administrative rule is reviewed under the APA. Swinomish
Indian Tribal Cmty. v. Dep’t of Ecology, 178 Wash. 2d 571, 580, 311 P.3d 6 (2013). Under the APA,
an agency rule may only be invalidated if it: (1) is unconstitutional, (2) exceeds the agency’s
statutory authority, (3) was adopted without complying with statutory rule making procedures, or
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(4) is arbitrary or capricious. RCW 34.05.570(2)(c). The validity of an agency rule is a question
of law, which we review de novo. Wash. Rest. Ass’n v. State Liquor Control Bd., 200 Wash. App.
119, 126, 401 P.3d 428 (2017).
Administrative agencies only possess those powers expressly granted to them by statute or
those impliedly authorized by their enabling statutes. Lenander v. Dep’t of Ret. Sys., 186 Wash. 2d
393, 404, 377 P.3d 199 (2016). When an agency acts within its rule making authority, the agency’s
rule is presumed valid, and the burden of demonstrating invalidity rests with the challenger. Wash.
Fed’n of State Employee. v. Dep’t of Gen. Admin, 152 Wash. App. 368, 378, 216 P.3d 1061 (2009);
RCW 34.05.570(1)(a). The party attacking the validity of a rule must show compelling reasons
why the rule conflicts with the legislation’s intent and purpose. Wash. Fed’n of State Employees,
152 Wash. App. at 386.
“‘Administrative [r]ules must be written within the framework and policy of the applicable
statutes.’” Wash. State Hosp. Ass’n v. Dep’t of Health, 183 Wash. 2d 590, 595, 353 P.3d 1285 (2015)
(internal quotation marks omitted) (quoting Swinomish, 178 Wash. 2d at 580). An agency exceeds
its statutory authority if it adopts a rule that is not reasonably consistent with the controlling
statutes. Id.
2. Ecology Exceeded its Rule Making Authority
Central to this case are issues of statutory interpretation. The parties dispute whether the
legislature imposed a mandatory duty upon Ecology, in the exercise of its rule making authority,
to establish minimum instream flows that protect multiple instream values, rather than a single
value chosen by Ecology. Resolving this dispute informs whether Ecology acted within its rule
making authority when it enacted the Rule.
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The goal of statutory interpretation “is to ascertain and carry out the legislature’s intent.”
Jametsky v. Olsen, 179 Wash. 2d 756, 762, 317 P.3d 1003 (2014). When possible, we must give
effect to the plain meaning of the statute as an expression of legislative intent. Id. In ascertaining
the statute’s plain meaning, we consider the statutory context, related statutes, and the entire
statutory scheme as a whole. Swinomish, 178 Wash. 2d at 582.
a. Ecology’s authority to establish minimum instream flows
This case implicates several related statutes within the general water code. Ecology’s
authority to establish minimum instream flows derives from the state Water Code,10 the Minimum
Water Flows and Levels Act,11 and the Water Resources Act of 1971.12
i. Water Code
The Water Code vests Ecology with the exclusive authority to establish minimum instream
flows for the state’s streams and lakes. RCW 90.03.247(2). In exercising its authority under the
Water Code, Ecology must consult with and consider the minimum flow proposals of the WDFW
at all stages of rule development. RCW 90.03.247.
ii. Minimum Water Flows and Levels Act
Enacted in 1969, the Minimum Water Flows and Levels Act (MWFLA) authorizes Ecology
to establish, by administrative rule, minimum flows or levels for public waters for the purposes of
10
Chapter 90.03 RCW.
11
Chapter 90.22 RCW.
12
Chapter 90.54 RCW.
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protecting fish and other wildlife, recreation and aesthetics, or water quality. Swinomish, 178
Wash. 2d at 592; RCW 90.22.010. The MWFLA provides, in relevant part:
[Ecology] may establish minimum water flows or levels for streams, lakes or other
public waters for the purposes of protecting fish, game, birds or other wildlife
resources, or recreational or aesthetic values of said public waters whenever it
appears to be in the public interest to establish the same. In addition, [Ecology]
shall, when requested by the [WDFW] to protect fish, game or other wildlife
resources under the jurisdiction of the requesting state agency, or if [Ecology] finds
it necessary to preserve water quality, establish such minimum flows or levels as
are required to protect the resource or preserve the water quality described in the
request or determination.
RCW 90.22.010.
Minimum instream flows established by rule “shall in no way affect existing water and
storage rights.” RCW 90.22.030. And Ecology may not grant the right to divert or store public
waters “which shall conflict” with the minimum instream flows it establishes. RCW 90.22.030.
Stated another way, the minimum instream flows Ecology establishes by rule are appropriative
water rights, subject to the longstanding rule that “‘as between appropriations, the first in time
shall be the first in right.’” Fox v. Skagit County, 193 Wash. App. 254, 264, 372 P.3d 784 (2016)
(quoting RCW 90.03.010) (emphasis omitted)).
In 1993, the legislature amended chapter 90.22 RCW to require Ecology, in cooperation
with Indian Tribes and the WDFW, to establish a statewide list of priorities in evaluating instream
flows. RCW 90.22.060. In establishing such list, Ecology “shall consider the achievement of wild
salmonid production as its primary goal.” RCW 90.22.060. Thus, the legislature plainly
“continued to place a high value on maintaining instream flows to support fish.” Swinomish, 178
Wash. 2d at 593, n. 12.
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iii. Water Resources Act
Enacted in 1971, the Water Resources Act (WRA) sets forth “‘fundamentals of water
resource policy for the state to insure that waters of the state are protected and fully utilized for the
greatest benefit to the people of the state of Washington.’” Swinomish, 178 Wash. 2d at 593 (quoting
LAWS OF 1971, 1st Ex. Sess., ch. 225 § 1). It also provides “ ‘direction to [Ecology] and other
state agencies and officials, in carrying out water and related resource programs.’ ” Id. (quoting
LAWS OF 1971, 1st Ex. Sess., ch. 225 § 1).
The WRA recognizes that water is a critical resource and proper utilization of water is
necessary to promote public health, economic well being, natural resources, and the aesthetic
values of the state. RCW 90.54.010(1)(a). It contemporaneously acknowledges that the supply
and availability of water has become increasingly limited. RCW 90.54.010(1)(a). The legislature
enacted the WRA to “ensure that available water supplies are managed to best meet both instream
and offstream needs” through a comprehensive planning process. RCW 90.54.010(1)(b). To this
end, the WRA authorizes Ecology to establish administrative rules that reserve and set aside waters
for beneficial use “whenever it appears necessary to the director in carrying out the [WRA’s]
policy.” RCW 90.54.050.
In 2002, the legislature enacted a new section of the WRA in which it “recognize[d] the
critical importance of providing and securing sufficient water to meet the needs of people, farms,
and fish.” RCW 90.54.005. The WRA enumerates three water resource objectives that should
guide water resource strategies at the local watershed level: (1) providing sufficient water to meet
residential, commercial, and industrial needs; (2) providing sufficient water to support productive
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fish populations; and (3) providing sufficient water to support productive agriculture. RCW
90.54.005(1)-(3).
The WRA also provides that the utilization and management of Washington waters “shall
be guided” by a number of general fundamentals. RCW 90.54.020. One fundamental declares
beneficial uses of water to include domestic, stock watering, industrial, commercial, agricultural,
irrigation, hydroelectric power production, mining, fish and wildlife maintenance and
enhancement, recreational, thermal power production, and preservation of environmental and
aesthetic values. RCW 90.54.020(1). The WRA does not prioritize between these competing
beneficial uses of water. RCW 90.54.020.
The WRA lists a number of other competing declarations of fundamentals, including
allocating water among potential uses in a way that secures “the maximum net benefits for the
people of the state,” developing multipurpose water storage facilities, preserving adequate supplies
of water in potable condition, developing regional water supply systems, and encouraging water
conservation practices. RCW 90.54.020(2). It also provides that the “quality of the natural
environment shall be protected and, where possible, enhanced as follows: … Perennial rivers and
streams of the state shall be retained with base flows necessary to provide for preservation of
wildlife, fish, scenic, aesthetic and other environmental values, and navigational values.” RCW
90.54.020(3)(a).
b. The WRA requires Ecology to consider all instream values
Relying on the language “shall” in RCW 90.54.020(3)(a), CELP argues that Ecology is
obligated to establish minimum instream flows that preserve wildlife, fish, scenic, aesthetic, and
environmental and navigational values. Ecology counters that its “primary rulemaking authority”
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here stems from MWFLA, and that the legislature’s use of the word “or” in the MWFLA (RCW
90.22.020) provides Ecology discretion “to determine the best purposes” for which it sets
minimum instream flows. Br. of Resp’t at 18. We are not persuaded by either party’s
interpretation.
At the outset, we note that “[t]he meaning of ‘shall’ is not gleaned from that word alone
because our purpose is to ascertain legislative intent of the statute as a whole.” State v. Krall, 125
Wash. 2d 146, 148, 881 P.2d 1040 (1994). The word “shall” in a statute imposes a mandatory
requirement “unless a contrary legislative intent is apparent.” Erection Co. v. Dep’t of Labor &
Indus., 121 Wash. 2d 513, 518, 852 P.2d 288 (1993). When possible, we derive legislative intent
from the plain language of the statute. Lenander, 186 Wash. 2d at 403.
Here, in considering the statutory context, related statutes, and the entire statutory scheme
of the WRA, we hold that CELP’s argument that the rule must preserve all instream values is not
persuasive. The language CELP relies upon is one of several enumerated general fundamentals
meant to guide water resource use and management. RCW 90.54.020. The WRA’s stated purpose
is to develop a comprehensive planning process that ensures better water management practices
and alleviates conflict among competing water users. RCW 90.54.010(1)(b). It is intended to
“ensure that available water supplies are managed to best meet both instream and offstream needs.”
RCW 90.54.010(1)(b). Consistent with the WRA’s overall goals of safeguarding public health
and economic well-being, and preserving the state’s natural resources and aesthetic values, the
WRA authorizes Ecology to develop a “comprehensive state water resources program” that
“provide[s] a process for making decisions on future water resource allocation and use.” RCW
90.54.040(1). The WRA’s “[g]eneral declaration of fundamentals” are meant to guide Ecology in
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the exercise of its water management duties. RCW 90.54.020. They do not impose a list of
mandatory requirements for every agency rule that Ecology adopts in the exercise of those duties.
The use of the word “shall” directs Ecology what values it must consider. See Bassett v. Dep’t of
Ecology, ___ Wn. App.2d ___, 438 P.3d 563 (2019) (holding that the legislature’s use of the word
“shall” in RCW 90.54.020 did not impose a formal test on Ecology to secure maximum net benefits
before it allocated water).
However, Ecology’s argument is equally unpersuasive. Ecology argues that the WRA’s
general declaration of fundamentals has no application when Ecology exercises its rulemaking
authority under the MWFLA. But the MWFLA does not operate in a vacuum. As discussed above,
Ecology’s exclusive authority to establish minimum instream flows stems from several statutory
provisions within the Water Code. In enacting the WRA, the legislature recognized that the proper
utilization of the state’s water resources was “necessary to the promotion of public health and the
economic well-being of the state and the preservation of its natural resources and aesthetic values.”
RCW 90.54.010(1)(a). The WRA prioritizes comprehensive water resource planning as a way to
resolve conflict among competing water users and interests. RCW 90.54.010(1)(b). It balances
the water needs of the state’s growing population with the objective of preserving instream
resources so that future generations can continue to enjoy them. RCW 90.54.010(1)(b).
Under the WRA, Ecology may set aside water for beneficial use “whenever it appears
necessary to the director in carrying out the [WRA’s] policy.” RCW 90.54.050. One way for
Ecology to do so is by establishing minimum instream flows and levels, which are treated as any
other appropriative water right. In the exercise of that authority, Ecology must meaningfully
consider the instream values enumerated in RCW 90.54.020(3)(a), and attempt to preserve them
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to the fullest extent possible. This gives effect to the legislative intent of the WRA to ensure that
water within the state is protected and “fully utilized for the greatest benefit to the people of the
state of Washington.” RCW 90.54.010(2).
Ecology’s interpretation of its rulemaking authority under the MWFLA is inconsistent with
the emphasis the legislature has placed on fully utilizing water for its maximum benefit and
ensuring that water supplies are managed to best meet both instream and offstream needs. When
read together with the WRA, the MWFLA does not grant Ecology the authority to establish a
minimum instream flow for the purpose of narrowly protecting only one instream value that
Ecology deems “best.” Br. of Resp’t at 18. Instead, it directs Ecology to meaningfully consider a
range of instream values and to consider how an instream flow that protects one value might impact
the others.
This is not to say that a rule is invalid simply because it fails to preserve and protect each
enumerated instream value. The legislature recognized the near impossibility of appropriating
water in a way that satisfies every one of its beneficial uses. RCW 90.54.010. Water is an
increasingly scarce resource and putting it to one beneficial use necessarily limits its availability
for a competing use. Ecology’s role in water resource management is to balance the competing
beneficial uses of water and ensure that water is fully utilized to the greatest benefit possible. If
the minimum instream flow necessary to protect one value is detrimental to another, the legislature
has made the choice clear—the one that protects fish prevails. See RCW 90.22.060; RCW
90.54.005(2); RCW 90.82.070. However, the high value that the legislature placed on maintaining
instream flows supportive of fish does not mean that Ecology can simply disregard other instream
values and narrowly focus only on fish.
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When viewed under this framework and policy, the Rule challenged here is not reasonably
consistent with the statutes it implements. Ecology made clear throughout rulemaking that its
proposed minimum instream flows were only “based upon fish habitat studies” and focused only
on “fish survival, including both whitefish and redband trout.” AR at 79, 66.
Ecology responded to public concern over the proposed minimum instream flow by
asserting its position that it may establish a minimum instream flow for the purpose of protecting
only one instream value. In its concise explanatory statement, Ecology explained that it had
discretion to choose one value for which to set a minimum instream flow. As explained above,
this interpretation of Ecology’s rule making authority is inconsistent with the framework of the
WRA.
Ecology argues that it nonetheless operated within framework of the controlling statutes
because it “fully considered” other instream values during multiple stages of its rule making
process. Br. of Resp’t at 19. However, the record shows that Ecology’s consideration involved
merely collecting public comments and studies that showed 850 cfs was not sufficient to preserve
the recreational and aesthetic values of the river, and then summarily “reject[ing]” these higher
instream values. AR at 3283. Such cursory treatment of these other values does not comport with
the emphasis the legislature placed on effectively managing water resources to ensure that water
is fully utilized to the greatest benefit of the people.
The record does not support Ecology’s repeated claim that a minimum instream flow
protective of fish would necessarily preserve other instream values. And contrary to Ecology’s
argument, three photographs showing a boat has not grounded at flows below 850 cfs does not
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“plainly show[]” that recreational and navigational uses are “plentiful” at these levels. Br. of
Resp’t at 24.
Ecology’s reliance on Avista’s federal license requirements is equally misplaced. Ecology
argues that the Rule protects all enumerated instream values because it is “identical” to Avista’s
federally required flows and “Avista’s federal license requires Avista to release flows for
recreation.” Br. of Resp’t at 25. This argument oversimplifies the nature and scope of Avista’s
license.
Avista’s federal license governs the operation and maintenance of five hydroelectric
project developments located along the Spokane River. The project area spans several counties in
Washington and Idaho, and the license dictates flows on the Spokane River from Coeur d’Alene
Lake in Idaho through the city and suburbs of Spokane. The FERC license only requires Avista
to operate certain hydroelectric developments on the river in a way that enhances recreation at
distinct reaches of the river. Notably, the license does not require Avista to operate its Monroe
Street and Upper Falls dams (the hydroelectric dams located just upstream of the river reach at
issue here) in a way that supports recreation.
Instead, the FERC license requires Avista to operate the Monroe Street and Upper Falls
dams to provide minimum summer flows of 850 cfs from June 16 to September 30 in order to
“enhance aquatic habitat for rainbow trout and mountain whitefish in the Spokane River.” AR at
8074. And it requires Avista to analyze the spawning habitat in response to flow alterations in the
Spokane River below the Monroe Street and Upper Falls dams. Thus, Ecology’s argument that its
summer instream flows preserve recreation simply because they are identical to the summer flows
required by Avista’s license is unavailing.
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Ecology’s attempt to bootstrap consideration of other instream values through its review
of Avista’s studies is also unpersuasive. Cursory review of certain studies Avista conducted as
part of its relicensing process does not constitute meaningful review of the instream values
enumerated in RCW 90.54.020(3)(a). And this argument ignores Ecology’s own statement that it
“chose[] not to establish instream flow values based on those recreational needs expressed during
the FERC process.”13 AR at 2985.
The record shows that Ecology based the 850 cfs flow on fish habitat studies because it
believed it had discretion to establish a minimum instream flow for the purpose of protecting only
one instream use. This narrow focus on preserving one instream value is not reasonably consistent
with the WRA’s purpose of ensuring “that waters of the state are protected and fully utilized for
the greatest benefit to the people of the state of Washington.” RCW 90.54.010(2). Because the
Rule was not written within the framework and policy of the applicable statutes, it exceeds
Ecology’s authority and is invalid.
3. The Rule is Arbitrary and Capricious
CELP also argues that the Rule is invalid because it is arbitrary and capricious. We agree.
An agency rule is arbitrary and capricious “if it is willful and unreasoning and taken
without regard to the attending facts or circumstances.” Puget Sound Harvesters Ass’n v. Dep’t of
13
Ecology also asserts that the only way to achieve flows higher than 850 cfs is by changing
Avista’s federal license. However, the record shows that flows measured at the Spokane gage
routinely exceed 850 cfs in the summertime, even during very dry years. Ecology’s further
suggestion that the Rule would impact Avista’s license is misplaced. Minimum instream flows
established by Rule are appropriations of water with a priority date of the rule’s effective date.
RCW 90.03.345. Ecology plans to use the minimum instream flows established by the Rule to
manage future water withdrawals from the Spokane River and aquifer. The Rule has no influence
on Avista’s federal license.
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Fish and Wildlife, 157 Wash. App. 935, 945, 239 P.3d 1140 (2010). As part of our review, we must
consider the relevant portions of the agency’s rule-making file and the agency’s explanations for
adopting the challenged rule. Id. “Where there is room for two opinions, an action taken after due
consideration is not arbitrary and capricious even though a reviewing court may believe it to be
erroneous.” Hillis v. Dep’t of Ecology, 131 Wash. 2d 373, 383, 932 P.2d 139 (1997).
As discussed above, review of Ecology’s rule-making file and explanations for adopting
the Rule shows that Ecology narrowly focused its Rule on only preserving fish habitat. Instead of
considering how the 850 cfs would affect other instream values, Ecology summarily concluded
that a flow protective of fish also protected other uses of the river. Nothing in the record supports
this conclusion. And the evidence before Ecology showed that the proposed flow would not be
adequate to support rafting, kayaking, and other recreational uses of the river. Ecology based the
850 cfs minimum instream flow on WDFW’s recommendation, but WDFW qualified its
recommendation as a “floor” to protect fish habitat, and he “would oppose lower flows, but not
higher summer flows.” AR at 14232, 13609.
An agency “must not act cursorily in considering the facts and circumstances surrounding
its actions.” Puget Sound Harvesters Ass’n, 157 Wash. App. at 951. Ecology’s explanations for
establishing minimum instream flows based only on fish habitat studies without regard to how its
proposed flow would impact other instream values was arbitrary and capricious. Therefore, the
resulting Rule is invalid.
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B. PUBLIC TRUST DOCTRINE
CELP also argues that Ecology violated the public trust doctrine by enacting the Rule
because the 850 cfs minimum instream flow will degrade the public interest in the lands and water
of the state. We disagree.
“The public trust doctrine is an ancient common law doctrine” that recognizes the public
need for access to navigable waters. Chelan Basin Conservancy v. GBI Holding Co., 190 Wash. 2d
249, 259, 413 P.3d 549 (2018). The doctrine has always existed in Washington, and the policy is
partially expressed in article 17, section 1 of the Washington Constitution, which reserves state
ownership in the beds and shores of the state’s navigable waters. Rettkowski v. Dep’t of Ecology,
122 Wash. 2d 219, 232, 858 P.2d 232 (1993). The state’s ownership of tidelands and shorelands is
comprised of two distinct aspects—its ownership interests, historically referred to as the jus
privatum, and its public authority interest, historically referred to as the jus publicum. Caminiti v.
Boyle, 107 Wash. 2d 662, 668, 732 P.2d 989 (1987), cert. denied, 484 U.S. 1008 (1988).
As owner, the state has fee simple title to such lands and may convey title in any manner
that does not contravene the constitution. Id. However, “ [t]he state can no more convey or give
away this jus publicum interest than it can ‘abdicate its police powers in the administration of
government and the preservation of the peace.’” Id. at 669 (quoting Illinois Cent. R.R. Co. v.
Illinois, 146 U.S. 387, 453, 13 S. Ct. 110, 36 L. Ed. 1018 (1892)). Thus, the doctrine precludes
the State from disposing of its interest in navigable waters in such a way that substantially impairs
the public’s right of access. Rettkowski, 122 Wash. 2d at 232. The Caminiti court adopted a two-
part inquiry to determine whether a challenged legislation violates the public trust doctrine: (1)
whether the state, by the questioned legislation, has relinquished its right of control over the jus
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publicum and (2) if so, whether by doing so, the state has promoted the public interests in the jus
publicum, or else has not substantially impaired it. 107 Wash. 2d at 670.
CELP argues that the test articulated in Caminiti informs this court’s analysis as to whether
the Rule violates the WRA. We hold that it does not.
There are two problems with relying on the framework outlined in Caminiti here. First,
the Caminiti test informs whether the state has relinquished its right of control over the jus
publicum through legislation, not through a state agency’s administrative rulemaking authority.
Id. “Second, the duty imposed by the public trust doctrine devolves upon the State, not any
particular state agency thereof.” Rettkowski, 122 Wash. 2d at 232. Our Supreme Court has repeatedly
held that Ecology’s enabling statute does not allow it to assume the public trust duties of the state
and regulate in order to protect the public. Postema v. Pollution Control Hearings Bd., 142 Wash. 2d
68, 99, 11 P.3d 726 (2000); Rettkowski, 122 Wash. 2d at 232. Because Ecology may not assume the
public trust duties of the state, it could not have “give[n] up control” over the jus publicum by
enacting the Rule at issue here. Br. of Appellant at 36.
Further, the Rettkowski court observed that the issue before it implicated Ecology’s
regulatory authority under a specific provision of the state water code. 122 Wash. 2d at 232-33. The
court held that the public trust doctrine “could provide no guidance as to how Ecology is to protect
those waters” because that guidance “is found only in the Water Code.” Id. at 233. Our Supreme
Court later adhered to this analysis and declined to use the public trust doctrine as an additional
canon of construction for interpreting provisions of the state Water Code. R.D. Merrill Co., v.
Pollution Control Hearings Bd., 137 Wash. 2d 118, 134, 969 P.2d 458 (1999).
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We similarly reject CELP’s claim that the public trust doctrine informs our analysis here.
As in Rettowski and R.D. Merrill Co., we need not resort to the public trust doctrine as an additional
canon of construction in light of the specific provisions at issue and the policies expressed in the
state water code.
C. RULEMAKING FILE
Finally, CELP challenges Ecology’s failure to include three14 documents detailing other
instream flow recommendations for the Spokane River in its administrative rule-making file. We
hold that CELP’s challenge fails.
The APA informs what documents must be contained within an agency’s rule-making file.
RCW 34.05.370. It must contain:
(a) A list of citations to all notices in the state register with respect to the rule
or the proceeding upon which the rule is based;
(b) Copies of any potions of the agency’s public rule-making docket containing
entries relating to the rule or the proceeding on which the rule is based;
(c) All written petitions, requests, submissions, and comments received by the
agency and all other written material regarded by the agency as important to
adoption of the rule or the proceeding on which the rule is based;
(d) Any official transcript of oral presentations made in the proceeding on
which the rule is based or, if not transcribed, any tape recording or stenographic
record of them, and any memorandum prepared by a presiding official summarizing
the contents of those presentations;
14
CELP does not identify the specific documents it believes were improperly excluded from
Ecology’s rule making file. Instead, it references the third section of its briefing in which it
discusses various WDFW memos that were absent from the rule- making file. There, CELP
explains that as part of the trial court proceeding, it moved to supplement the administrative record
with three documents: (1) Ecology’s comments to FERC during Avista’s dam relicensing, (2) an
April 23, 2007, memo from Beecher noting a peak habitat rearing of 1040 cfs at the Spokane gage,
and (3) a June 30, 2004, document in which Beecher recommends a minimum discharge of 700
cfs at the Post Falls Dam.
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No. 51439-7-II
(e) All petitions for exceptions to, amendment of, or repeal or suspension of,
the rule;
(f) Citations to data, factual information, studies, or reports on which the
agency relies in the adoption of the rule, indicating where such data, factual
information, studies, or reports are available for review by the public, but this
subsection (2)(f) does not require the agency to include in the rule-making file any
data, factual information, studies, or reports gathered pursuant to chapter 19.85
RCW or RCW 34.05.328 that can be identified to a particular business;
(g) The concise explanatory statement required by RCW 34.05.325(6); and
(h) Any other material placed in the file by the agency.
RCW 34.05.370(2)(a)-(h).
This document retention requirement is critical because we review the validity of an agency
action “at the time it was taken.” RCW 34.05.570(1)(b). Without a complete agency rule-making
file, we would be unable to examine whether the agency acted within its authority or “without
regard to the attending facts and circumstances” in enacting the challenged rule. 15 Puget Sound
Harvesters Ass’n, 157 Wash. App. at 945.
CELP argues that Ecology’s omission of certain documents from its rule-making file
undermines a reviewing court’s ability to examine whether the Rule was adopted through a process
of reason. But we find that the record before us is adequate for review.
15
Federal courts have emphasized the critical role a comprehensive rule-making record plays in
evaluating the propriety of agency action. See, e.g., Fund for Animals v. Williams, 391 F. Supp. 2d
191, 196 (2005) (noting that fair review of an agency action requires the reviewing court to have
no more and no less information than the agency had when it made its decision); Walter O. Boswell
Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (1984) (“If a court is to review an agency’s action
fairly, it should have before it neither more nor less information than did the agency when it made
its decision.”)
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No. 51439-7-II
We note that the documents at issue are in the record before us through CELP’s motion to
supplement the administrative record in the clerk’s papers. Thus, we are not without knowledge
of the information contained within these documents. And in reviewing these documents, we find
that they are not directly related to the agency action challenged here.
The three documents CELP contends Ecology should have included in its rule-making file
were created as part of Avista’s relicensing process, not as part of Ecology’s formal rulemaking
commenced in January 2014. CELP obtained these documents through a public records act request
that it sent to the WDFW, not to Ecology. And Ecology’s rule writers submitted declarations
stating that they did not have custody of these documents during the rule adoption process, nor did
they rely on them in setting minimum instream flows at 850 cfs.
CELP appears to argue that they were nonetheless relevant because it believes that Ecology
should have considered them as part of its rule making process. But RCW 34.05.370(2)(f) only
requires Ecology to include in its rulemaking file the data, factual information, studies, or reports
it relied upon in adopting the Rule. Thus, contrary to CELP’s assertion, Ecology was not required
to include these documents in its rule-making file.16
16
CELP repeatedly argues that omission of these documents from the rule-making file precludes
“effective judicial review." Br. of Appellant at 39. This argument is puzzling because CELP
simultaneously asks this court to evaluate the Rule, based on the record before this court, and to
hold it invalid.
And even if we agreed that the documents were directly relevant to adoption of the
challenged Rule, the remedy CELP seeks is not available. CELP seeks a “remand” of the Rule to
Ecology for reconsideration based on a complete record. Br. of Appellant at 46. But this remedy
is not applicable. If we conclude that a rule exceeds an agency’s statutory authority or is arbitrary
and capricious, we invalidate the rule. See, e.g., Swinomish, 178 Wash. 2d at 602; Puget Sound
Harvesters Ass’n, 157 Wash. App. at 938.
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CONCLUSION
The WRA provides that perennial rivers and streams “shall be retained with base flows
necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental
values, and navigational values.” RCW 90.54.020(3)(a). This statutory language does not allow
Ecology to establish minimum instream flows for the narrow purpose of protecting only one
instream value chosen by Ecology. Instead, the statute directs Ecology to meaningfully consider
a range of instream values and seek to preserve them to the fullest extent possible.
Because Ecology exceeded its statutory authority in adopting the Rule establishing
minimum summer instream flows of 850 cfs, we hold the Rule is invalid.
Lee, A.C.J
We concur:
Sutton, J.
Martin, J.P.T.
27