Recent Decisions from the Environmental Hearings Boards

November 2004

 

By Robert V. Jensen, Bill Clarke and Kay Brown, Environmental Hearings Office

 

The following sections summarize some of the cases decided during 2004 by the various boards that make up the state�s Environmental Hearing Office. All of these decisions, and more, can be found on the EHO �decisions� page at the EHO website (eho.wa.gov).

 

I. Pollution Control Hearings Board

 

A. 401 Certifications

 

Confederated Tribes of the Umatilla Indian Reservation v. Department of Ecology, PCHB 03-075, Summary Judgment (February 13, 2004), Findings of Fact, Conclusions of Law, Order (April 21, 2004).

 

The Board affirmed Ecology�s Section 401 Clean Water Act Certification for the Lake Chelan dam, located at the south end of Lake Chelan. The majority concluded that Ecology had reasonable assurances the project would comply with the Clean Water Act, applicable state water quality standards, and other applicable law.

 

A key issue raised by Confederated Tribes of the Umatilla Indian Reservation, was whether Ecology was correct in authorizing an adaptive management program, which did not assure the Chelan River would meet the state temperature standard in ten years or less after the project was built. The Board, in considering this argument, concluded that to require the level of flows which would ensure meeting the standard would significantly reduce usable fish habitat in the river. Flows of the size required to meet the standard could also cause scouring and prevent growth of riparian vegetation.

Environmental & Land Use Law November 2004

The Board added several conditions, agreed to by the parties, which would strengthen the adaptive management program. In addition, the dissent would have required, prior to construction of the project, a study of the feasibility of installing a fishway through the dam to give the westslope cutthroat trout access to and from Lake Chelan. The Board�s decision was not appealed.

 

Snoqualmie Indian Tribe v. Department of Ecology, PCHB 03-156, Summary Judgment (April 7, 2004), Findings of Fact, Conclusions of Law, Order (April 7, 2004).

 

In this case, Ecology approved a Section 401 Certification, under the Clean Water Act, for Puget Sound Energy�s (�PSE�) proposed re-licensing with the Federal Energy Regulatory Commission (�FERC�) for its Snoqualmie Falls Dam. The Snoqualmie Indian Tribe appealed the decision to the Board. The Tribe challenged Ecology�s decision regarding the required aesthetic flows over the Falls, the required ramping rates for protection of anadromous and endangered fish, the critical flow trigger for the determination of those ramping rates, the lack of a seasonal construction window for the project to protect fish, and the cumulative water quality problems associated with this and other projects. The Board concluded that the Tribe failed to meet its burden of proof on all of these issues, with the exception of the critical flow trigger.

 

The Board agreed with the Tribe that the critical flow of 1700 cubic feet per second (�cfs�) for the project was set too low to ensure protection of fish and to avoid violation of the state�s anti-degradation policy. The Board reversed Ecology on this issue and set the flows at 2,500 cfs, pending a critical flow study.

 

One interesting aspect of the decision was a discussion of the scope of interests considered beneficial for purposes of the water quantity and quality laws. The Board concluded that although the Tribe has an important spiritual, cultural, and historical interest in the falls, that interest was not within the ambit of the beneficial interests defined in the water quantity and water quality laws. The Board also rejected PSE�s request for a ruling that hydropower production is a beneficial use of the water that requires protection under the water quality laws. The Board�s decision was not appealed.

 

B. NPDES Permits and Enforcement authority

 

Bloomquist v. Department of Ecology, PCHB 03-121, Summary Judgment (March 16, 2004).

 

In the case, an applicant had disturbed wetlands prior to applying to Ecology for coverage under a National Pollutant Discharge Elimination System (�NPDES�) Construction Stormwater General Permit. Ecology, in an enforcement action, required the applicant to submit a Stormwater Pollution Prevention Plan (�SWPPP�) for Ecology�s review, prior to the agency�s decision on coverage. The applicant argued that Ecology lacked authority to require submittal and approval of the SWPPP prior to deciding whether to extend coverage under a construction stormwater general permit.

 

The Board upheld Ecology�s decision, reasoning that Ecology had the option under the law to require an individual construction stormwater permit. The Board concluded  that Ecology was entitled to request a SWPPP, under its authority to require all applications for coverage under a general permit to include other relevant information. The Board reasoned that if the SWPPP appears designed to control harmful discharges, Ecology would most likely extend coverage to the applicant. If not, such coverage would most likely be withheld. The Board rejected the applicant�s argument that Ecology was required to adopt an administrative rule prior to requiring approval of the SWPPP. The Board concluded that the permit and Stormwater Management Manual contained adequate standards to enable Ecology to conduct its review of the SWPPP.

 

C. Water Law

 

Protect Our Water v. Department of Ecology, PCHB 03-102, Summary Judgment (May 25, 2004), Findings of Fact, Conclusions of Law, Order (August 26, 2004).

 

This case involved a challenge to a determination by Ecology that a surface water right had not been relinquished. King County Water District 19, serving south Whidbey Island, had obtained the right from a local greenhouse. The primary issue on summary judgment was whether Protect Our Water (�POW�), a local citizens group, had standing to challenge Ecology�s determination on relinquishment. The Board ruled that POW had articulated sufficient recreational, aesthetic, and scientific interests in the natural flows of Beall Creek to satisfy the test of injury in fact.

 

In its final decision, the Board affirmed Ecology�s decision that the water right was not entirely relinquished.  However, the Board disagreed with Ecology�s calculation of the relinquished amount. Ecology had originally assumed that the District qualified for the determined future development exception to the relinquishment statute, as of the date the District purchased the watershed and the option to purchase the Beall Greenhouse water right. However, at the hearing, Ecology recognized that the critical date was when the water right was purchased, which was in July of 1988. Based on this, the Board reduced the amount of water that had been relinquished. The dissent concluded that the entire water right had been relinquished. The Board�s decision was appealed to King County Superior Court.

 

Puyallup Tribe of Indians v. Department of Ecology, PCHB 03-105,106,107,109,118, Remand Order (August 12, 2004).

 

Puget Sound Energy (�PSE�) owns and operates the 04 Environmental & Land Use Law

Lake Tapps Hydroelectric Plant in northern Pierce County which includes a diversion dam on the White River near Buckley. In the summer of 2000, PSE filed three water-right applications for diversion of water from the White River, storage of water in Lake Tapps, and proposed use of water for public water supply. Ecology�s Report of Examination (�ROE�) approving the PSE applications was appealed by several tribes, cities, and an individual.

 

Several months after the appeals were filed, PSE announced it would cease hydropower operation at the Lake Tapps facility. The appellants moved to remand Ecology�s decisions on the ground that Ecology�s ROE was premised on continuing hydropower operation, which would no longer occur, and that because the decision did not relate to project operation in the absence of hydropower operations, an appeal should not occur.

 

The Board agreed with the Appellants. It noted that the ROEs did not define any flow regime for the White River diversion, nor the Lake Tapps discharges, in the absence of hydropower operations. The ROEs also contained no analysis of the water quality implications of the hydropower closure. Further, Ecology had considered hydropower operation a part of the baseline conditions in its analysis that the proposed applications satisfied the requirements contained in RCW 90.03.290. Ecology had not revised the ROEs to reflect conditions in the absence of hydropower operations.

 

Ecology and PSE argued no new analysis or outcome was required because PSE would continue to divert and discharge at the same rate as before the hydropower generation was terminated. The Board concluded, however,  that Ecology had conducted no analysis of whether the precode right could be exercised for non-hydropower purposes.

 

The Board was also unable to conclude that Ecology�s balancing of benefits and harms to the public interest would be the same in the absence of hydropower use. Ecology and PSE also argued that the Board could take evidence at a hearing on the effect of the termination of hydropower operation on the permit decisions, and make any necessary revisions to those decisions. They relied upon Port of Seattle v. Pollution Control Hearings Board, 151 Wn.2d 568, 90 P.3d 659 (2004). The Board distinguished this case, concluding that it did not involve a substantially different project or decision, developed for the first time during litigation before the Board.

 

The Board remanded the applications back to Ecology, requesting it analyze them under RCW 90.03.290, using the actual non-hydropower conditions that will exist when the water rights authorized by the permits are exercised.

 

Burke v. Department of Ecology, PCHB 03-155, Summary Judgment (July 6, 2004).

 

Another water right case decided by the Board during this period involved a challenge to Ecology�s approval of a change of use from consumptive irrigation to instream flow for four water rights on First and Swauk Creek in the Yakima Basin. Ecology first made a tentative decision on the extent and validity of MountainStar Resort�s (�MountainStar�) water rights on these creeks. Three downstream water right holders appealed Ecology�s approval of MountainStar�s change applications to the Yakima County Superior Court. The Court confirmed Ecology�s tentative decisions and certified the appeals of the change of use to the PCHB.

 

Ecology, in it Reports of Examination (�ROE�), had concluded there would be no impairment of other water right holders. The appellants challenged this conclusion. They argued that the ROEs provided that if the instream flow transfers from the two creeks did not occur at the same time there would be a seasonal decrease in flow on the lower reaches of Swauk Creek, which would not be fully offset by the increase in instream flow from the instream transfer to Swauk Creek alone. This reduction would be caused by a reduction in return flow to Swauk Creek.

 

The Board rejected appellants� argument, agreeing instead with Ecology that a reduction in return flow cannot be considered an impairment of downstream water rights because a water right holder is not obligated to provide return flow to downstream users. The appellants petitioned for reconsideration, requesting the Board to rule on whether MountainStar could be granted a private instream flow right prior to entering into a trust agreement. The Board declined to rule on this issue because it was not an issue certified to the Board by the superior court. This case is on appeal in Yakima County Superior Court.

 

Port of Vancouver v. Department of Ecology, PCHB 03- 149, 151, Findings of Fact, Conclusions of Law, Order (May 7, 2004).

 

The Port of Vancouver and ST Services appealed a preliminary permit issued by Ecology allowing Clark Public Utilities (�CPU�) to drill a test well and conduct pumping tests in the Vancouver lowlands area. The appellants contended that the permit was invalid (1) because Ecology lacked the authority to issue a preliminary permit to withdraw water from an aquifer not specified in the groundwater application and (2) because the State Environmental Policy Act (�SEPA�) review should have been conducted before the preliminary permit was issued.

 

The Board affirmed Ecology on the first issue. The Board reasoned that RCW 90.03.290(2), which allows Ecology to issue preliminary permits where the application does not contain sufficient information for the agency to make findings, was sufficient to authorize the preliminary permit. The Board reversed Ecology, however, on the SEPA issue.

 

The Board concluded that the SEPA regulations mandate environmental analysis before an agency commits to a particular course of action. The Board rejected CPU�s argument that the proposal was not developed enough to permit meaningful evaluation. It also rejected the argument that the permit was exempt from SEPA review by &virtue of WAC 197-11-800(17), which exempts data collection, research, resource evaluation, requests for proposals, and the conceptual planning of proposals. The Board noted that the well�s specifications were calculated to accommodate full production of the well field and that the cost constituted a significant monetary investment in and commitment to the site. The majority characterized the preliminary permit well as a functional component of the larger well field proposal. Thus, it falls under the rubric of WAC 197-11-060, which includes within the scope of environmental review proposals or parts of proposals that are so inter-related as to constitute a single course of action.

 

Finally, CPU and Ecology contended that environmental review for the preliminary permit was adequately covered by an earlier SEPA review conducted for CPU�s Water System Plan Update. The majority disagreed, because neither that plan nor the Declaration of Nonsignificance for that plan contained a detailed analysis of the Vancouver Lake Lowlands area. It was on the SEPA issue that the majority of the Board and the minority disagreed. The dissent agreed with Ecology and CPU that the preliminary permit was categorically exempt from the SEPA threshold requirement, and that the issuance of the preliminary permit complied with the SEPA requirement that exempt actions not have environmental impacts. The Board�s decision was appealed to Thurston County Superior Court.

 

II. Shorelines Hearings Board

Maple Valley Citizens for Responsible Growth v. City of Maple Valley, SHB 03-014, Findings of Fact, Conclusions of Law, Order (April 21, 2004).

 

This case involved the appeal of a shoreline substantial development permit (�SDP�) for the placement of a tight line for storm water discharge into Lake Lucerne. The discharge was from a proposed single-family residential subdivision located in the City of Maple Valley. The appellants raised several issues including (1) whether the Board had jurisdiction to apply zoning, critical area ordinances, or comprehensive plans in reviewing the granting or denying of a shoreline permit; and (2) whether the permit violated the City�s Moratorium Ordinance pertaining to shoreline development, pending approval of its shoreline master program (�SMP�). The Board concluded that it did not have jurisdiction over compliance with these laws, and dismissed the issues.

 

The Appellants also argued that the Board should apply the Maple Valley Draft SMP, instead of the King County SMP, to the proposal. The Board, affirming the local government, concluded that the King County SMP was the appropriate SMP. It based this conclusion, in part, on the fact the shoreline application was filed before the Maple Valley SMP was approved by Ecology. Therefore, the application had vested under the King County SMP. The dissent disagreed with the majority�s vesting analysis, and instead argued that the Shoreline Management Act provision governing the applicability of draft master programs should control.

 

The Board also rejected petitioner�s other arguments, concluding that the provisions of the King County SMP relating to water quality, the state water quality standards, and the State Environmental Policy Act (�SEPA�) were met by the proposed tight line for storm water discharge. The Board was persuaded that the project�s extra large detention basin, coupled with education of the future homeowners and monitoring, would provide adequate control of phosphorous.

 

III. Forest Practices Appeals Board

Brown v. Department of Natural Resources, FPAB 03-012, Findings of Fact, Conclusions of Law, Order (April 2, 2004).

 

In Brown v. DNR, the Board upheld $9,500 of an $11,500 civil penalty for logging without a forest practice permit, and for logging in violation of the Riparian Management Zone Rules (�RMZ�). The appellant admitted the violations. The remaining $2,000 of the $11,500 was conditionally suspended based on Mr. Brown�s prior unblemished record with the Department of Natural Resources. The Board concluded that the penalty was reasonable because the violations were serious and intentional.

 

IV. Hydraulics Appeals Board

Dennis v. Department of Fish and Wildlife, HAB 03-002, Summary Judgment (May 26, 2004).

 

This case involved an appeal filed by property owners affected by an irrigation project for the emergency repair of a diversion berm, and the installation of a temporary fish screen in Spring Creek located in Benton County. The appellants were signatories to the Hydraulic Project Approval (�HPA�) issued by the Washington Department of Fish and Wildlife. They protested certain conditions of the HPA and how the work was being done under the permit. This appeal raised the interesting issue of whether the HPA was invalid because Spring Creek is an irrigation ditch, as opposed to a natural waterway, and therefore not subject to the hydraulic law. Appellants cited to a decision of a Benton County District Court judge for support for their theory. The Board concluded that it was not bound by the district court decision. Moreover, there was no indication that the decision applied to the site of this HPA. Finally, the appellants� documents described a waterway which had a natural meander. RCW 77.55.100(8) excludes �irrigation ditches� from the HPA requirement, but the statute does not define �ditch.� The Board looked to Merriam Webster�s dictionary, which defined a �ditch� as a �long narrow excavation dug in the earth (as for drainage).� Based on this definition and the facts before it, the Board determined that Spring Creek did not constitute an irrigation ditch.