BEFORE THE POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

CLARO E. BERGEVIN, ) PCHB Nos. 94-192, 94-194,

DARREN & MERLE GOBLE, ) 94-197, 94-199, 94-200,

TRI-STATE STEELHEADERS, ) 94-201, 94-202, 94-203,

LAWRENCE L. DODD dba ) 94-204, 94-205, 94-206,

OLD LOWDEN DITCH CORP., ) 94-207, 94-211, 94-212

WILLIAMS DITCH COMPANY, )

MARJORIE J. JESSEE, TOM C. )

BERGEVIN, GENE & ANNE )

CURCIO, JOHN C. and )

ELIZABETH B. PATTERSON, )

KEN & JUDY FRAZIER, TROY )

& MARYANNE FRAZIER, C. )

DAVID BURGESS, RANDY & )

ROSEMARY DERUWE, and )

EUGENE HASSLER, )

) FINAL FINDINGS OF FACT,

Appellants, ) CONCLUSIONS OF LAW

) AND ORDER

v. )

)

STATE OF WASHINGTON, )

DEPARTMENT OF ECOLOGY; )

and BYERLEY FARMS PROFIT )

SHARING TRUST, )

)

Respondents. )

______________________________)

The Pollution Control Hearings Board (Board) held a hearing in this action in Touchet, Washington, on September 18 and 19, 1995. The Board was comprised of Richard C. Kelley, Robert V. Jensen and James A. Tupper, Jr. Suzanne Skinner, Administrative Appeals Judge, presided for the Board.

William Bridges of Bridges and Associates was the court reporter.

Appellant Tri-State Steelheaders were represented by Larry Zalaznick, who is a board member of the organization. All other appellants were represented by R. F. Monahan of Roach & Monahan, Walla Walla, Washington. Respondent Department of Ecology (DOE) was represented by Deborah Mull, Assistant Attorney General. Respondent Byerley Farms Profit Sharing Trust (Byerley Farms) was represented by Albert J. Golden of Golden & Knowlton, Walla Walla, Washington.

Based upon the sworn testimony and exhibits admitted at the hearing, the Board enters the following:

FINDINGS OF FACT

I.

Appellants seek review of Findings of Fact and an Order issued by DOE granting Byerley Farms a permit to appropriate 5.0 cubic feet per second (cfs) of surface water from the Walla Walla River from February 20 to April 10 of each year for the supplemental, seasonal irrigation of 680 acres. This new surface water right is conditional: diversion is not permitted when the United States Geological Survey (USGS) water flow gage on the mainstem Walla Walla below the mouth of the Touchet River (hereinafter “mainstem gage”) reads 504 cfs or less. DOE calculates that as long as the mainstem gage reads at least 504 cfs, streamflow at the proposed Byerley Farms’ diversion would be 246 cfs--an amount which DOE deems sufficient to sustain steelhead spawning in the diversion reach and to service senior water rights for winter irrigation.

At issue is whether there is water available for this new, limited surface water right, and whether it will impair existing senior water rights along the Walla Walla River and negatively impact instream flows reserved by state law for a public benefit, specifically the anadromous fish of the Walla Walla River.

II.

Byerley Farms is located four miles east of Lowden, Washington, along the north side of the Walla Walla River. The 680 acres for which this water right is sought is currently covered by two surface water rights as well as four ground water rights that permit pumping from three different wells. The three wells withdraw water from the same basalt acquifer, an acquifer that underlies the entire Walla Walla watershed. Byerley Farms’ three wells range from 1035 to 1300 feet in depth.

III.

Byerley Farms filed its application for a surface water right permit on April 2, 1992, for the supplemental irrigation of 690 acres at 5 cfs from October to May. [1] No new land would be irrigated under the permit, only the source of the water would change.

IV.

Byerley Farms presently irrigates in the winter to grow alfalfa seed. Cultivation of alfalfa seed requires that growers irrigate the crop early in the year until May or June, to saturate the soil, and then cease irrigation until October or November. Byerley Farms would use the water from the supplemental surface water right requested for alfalfa seed irrigation--indisputably, a beneficial use of the water.[2]

Byerley Farms currently uses ground water pumped from its basalt aquifer wells to irrigate its alfalfa seed crop. As the water level in the basalt aquifer declines, the cost of pumping well water for irrigation has increased. Byerley Farm’s sole purpose in seeking this permit is economic--winter irrigation with Walla Walla River water is cheaper than irrigation with aquifer water.

V.

Bill Neve of DOE’s Water Resources Program investigated Byerley Farms’ application, assigning it number S3-29174. Notice of the application was published in a local paper. No protests to the application were received. However, several years earlier, Byerley Farms had applied for a ground water right to install an infiltration system which would use Walla Walla River water. While that application was ultimately abandoned, seventeen individuals had formally protested that prior application. Mr. Neve assumed, quite correctly, that those seventeen individuals would also object to Byerley Farms’ 1992 application. The primary objections were: 1) that winter water in the Walla Walla River is already fully appropriated; 2) that this permit would interfere with existing, senior water rights; and 3) that this permit would impair the native steelhead fishery, especially since DOE has not yet set minimum instream flows for the Walla Walla River. [3]

After investigating these protests, Mr. Neve issued his Report of Examination on the Byerley Farms’ application on August 4, 1994. In that report, Mr. Neve responded to the protests raised but, nevertheless, concluded that : 1) public surface water was available for the Byerley Farms’ appropriation if limited to 5 cfs, 500 acre-feet, for 680 acres, between February 20th and April 10th of each year; 2) that irrigation was a beneficial use; and 3) that neither interference with existing water rights of other farmers nor detriment to the steelhead fishery would occur as long as the mainstem gage downstream read 504 cfs or more. By an order issued the same date, DOE adopted the Report of Examination and granted the permit.

VI.

Appellants timely appealed to this board DOE’s order granting the Byerley Farms’ permit. The appeal reiterates appellants’ three major objections to the permit application.

The Board’s consideration of appellants’ objections is preceded by the following background findings.

VII.

The Watershed. The Walla Walla River originates in the Blue Mountains of Oregon, and runs generally to the northeast. The mainstem is formed by two forks, the North and South Fork. A USGS streamflow gage is located on each fork upstream of their confluence near Milton-Freewater, Oregon. A 1936 United States Supreme Court decision permits Oregon residents to divert the entire Walla Walla River before the state line. Consequently, during the summer, the mainstem at the Washington border, consists of little more than irrigation return flows and ground water seepage.

Just north of the Washington state line, west of the city of Walla Walla, Mill Creek joins the mainstem. Mill Creek has its headwaters in the Blue Mountains and an average annual flow of 91 cfs. A USGS gage presently operates on Mill Creek. As Mill Creek supplies approximately eighty five percent of the city of Walla Walla’s water supply, among other users, Mill Creek’s contribution to the mainstem can, at times, be small.

Downstream of Mill Creek, Pine and Dry Creeks, two other tributaries, meet the mainstem. The headwaters of both creeks are relatively low-lying so their respective flows vary according to the amount of rainfall. A streamflow gage operated on Dry Creek from 1949 through 1967.

The Touchet River originates in the Blue Mountains and flows west through the cities of Dayton and Waitsburg, eventually emptying into the mainstem downstream of Byerley Farms and the diversions of many of the appellants. The average annual flow of the Touchet is 220 cfs, not including diversions. From 1941 through 1955, a USGS gage operated on the Touchet River, near Bolles, Washington.

DOE relied on data from both the Dry Creek and Touchet gages, which are now inoperative, to determine the minimum base flows required at the Byerley Farms’ diversion.

The mainstem gage is located downstream of the mouth of the Touchet River, the largest tributary to the mainstem in Washington. That gage therefore does not directly measure streamflow in the mainstem Walla Walla above the Touchet River confluence. It is the reach of the mainstem between Mill Creek and the Touchet River where the Byerley Farms’ diversion would be located.

VIII.

The Aquifers. There are two important aquifers in this region--a gravel one about 50 feet below the center of the Walla Walla basin and a larger, and much deeper basalt aquifer that underlies the entire watershed. There is a high degree of hydraulic continuity[4] between the gravel acquifer and the Walla Walla River and its tributaries. Indeed, after major irrigation withdrawals stop in the fall, over one month can pass before flowing water reappears in some reaches of the mainstem because the water is wholly absorbed by the gravel acquifer. Between 19 to 23 percent of the rainfall in the basin serves to recharge the gravel acquifer. Ground water levels in the gravel acquifer have therefore remained relatively stable.

The basalt acquifer is found between 500 and 1300 feet below the surface. It is comprised of relatively thin water-bearing zones trapped between adjacent basalt layers. Hydraulic continuity between the basalt acquifer and streams and rivers in the basin is low. DOE reports that the water level in the basalt aquifer has dropped approximately one foot per year since 1972 in the vicinity of Byerley Farms, and has dropped as much as three feet per year in other parts of the Walla Walla basin. This steady decline in the basalt aquifer triggered DOE’s decision to close the acquifer to further appropriation when withdrawals reach 125,000 acre-feet. WAC 173-532-070. Moreover, to avert closure, DOE has adopted a policy of conjunctive use which encourages farmers to irrigate with surface water, where available, to offset further depletions to the basalt aquifer. DOE issued the Byerley Farms’ permit pursuant to its conjunctive use policy.

IX.

The Fishery. Summer steelhead is the sole native, anadromous fish species remaining in the Walla Walla basin. Spring chinook once inhabited the river but were eliminated by low water flows and irrigation diversions. These same factors have also reduced summer steelhead to a fraction of their former abundance. To augment dwindling steelhead runs for recreationists, Washington Department of Fish and Wildlife (WDFW) began releasing hatchery-raised fish into the Walla Walla in 1983. In spite of the deterioration of the habitat, spring chinook may eventually be reintroduced to the river.

Summer steelhead enter the Walla Walla from the Columbia between December and March, with most of the immigration occurring in February and March. Spawning, the most critical lifestage for the fish, occurs in April and May. Juveniles also migrate downstream in February and March--after one or two years of rearing upstream.

DOE has not set base flows for the Walla Walla and its tributaries. Base flows are the minimum instream flows required to preserve fish, as well as aesthetic and environmental values. Because the Walla Walla and its tributaries are totally appropriated during the irrigation season, there is simply no water available to fill any base flows DOE might set. DOE has indefinitely postponed setting base flows for the Walla Walla until water storage projects can be developed to supply the requisite water levels.

X.

Appellants’ first objection to the Byerley Farms’ permit is that the Walla Walla River lacks sufficient water, even in the winter, to satisfy the appropriation.

There are 892 adjudicated surface water rights on the Walla Walla River in Washington. The 1927 adjudication of water rights along the Walla Walla created three seasonal divisions of rights: spring rights from April 1st to July 1st; summer rights from July 1st to October 1st; and winter rights from October 1st through April 1st. The demands on the river due to large withdrawals based upon spring and summer water rights led DOE to close the Walla Walla River to new appropriations from May 1st through November 30th of each year. Although the winter season is not closed to appropriation, DOE does not know whether the outstanding perfected winter water claims effectively account for the entire wintertime flow. Bill Neve acknowledged that if everyone who currently possesses winter water rights along the river actually withdrew the water to which they were entitled, the river would probably run dry from February 20th to April 10th--the period of the Byerley Farms’ permit.

XI.

There is a crucial difference, though, between the water rights claimed and the amount of water actually used. While DOE cannot document the extant winter water rights along the Walla Walla, the high winter flows that generally occur indicate that most those water rights are not being fully used in wintertime.

XII.

To determine what actual winter flows were in the mainstem, Brad Caldwell, DOE’s fisheries biologist, complied ten-day average flow readings for the mainstem gage from 1952-1992, a forty-year period of record, and broke those readings down into three categories to show the flow level that was exceeded 10 percent, 50 percent and 90 percent of the time. DOE was cognizant that flow levels at the mainstem gage, without adjustment, cannot adequately estimate flow levels at the Byerley Farms’ diversion since the mouth of the Touchet River is between the diversion reach and the mainstem gage. The difference in mainstem flows above and below the Touchet River confluence can be considerable.

Mr. Caldwell therefore deducted from mainstem flow levels, annual flow readings for both the Touchet River and Dry Creek, based upon readings from gages that were once in operation on both those rivers. Mr. Caldwell again broke the readings down from both rivers to show for each the flow levels that were exceeded 10 percent, 50 percent and 90 percent of the time. Mr. Caldwell compared the gage readings from the three rivers even though the period of record for each gage was different. The period of record for the Touchet gage was 1941-1955. The period of record for the Dry Creek gage was 1949-1960.

From these calculations, Mr. Caldwell concluded that when the flows at the mainstem gage were at least 504 cfs 90 percent of the time, flows at the Byerley Farms diversion were at least 246 cfs 90 percent of the time. Mr. Neve opined in the Report of Examination, and during the hearing, that when the mainstem gage read 504 cfs or more, winter riverflow was ample to allow the Byerley Farms appropriation without impacting senior appropriators or the fishery. Water was therefore available for the Byerley Farms appropriation as long as the appropriation was limited to when the mainstem gage read at least 504 cfs--which was achieved 90 percent of the time between February 20th and April 10th according to Mr. Caldwell’s calculations. Accordingly, DOE concluded that water was available for the Byerley Farms appropriation if limited to February 20th through April 10th of each year as long as the mainstem gage read 504 cfs or more.

XIII.

Appellants contest DOE’s conclusion that water is available for appropriation. Rick Oestman, appellants’ expert, examined flow data from the mainstem gage from February 20th through April 10th from 1983-1990, yet, his data generally affirmed that winter flows during the permit period were high in the mainstem. There were only 49 days between February 20th and April 10th for the eight years surveyed when winter flows at the mainstem gage fell below 504 cfs. Mr. Oestman conceded that winter flows at the mainstem gage exceeded 504 cfs close to 90 percent of the time during the permit period. Appellants adduced no evidence that water was not available for appropriation when the mainstem gage read 504 cfs or above.

XIV.

Mr. Oestman’s data also reveals that even though mainstem winter flows are generally high, considerable variation in flows can occur year-to-year. For example, 1986 was a relatively wet year: mainstem flows ranged from 9310 cfs to 702 cfs. By contrast 1988, was a relatively dry year: mainstem flows ranged from 577 cfs to 211 cfs.

XV.

The wide fluctuations in winter flows shown in the data year-to-year helps reconcile the conflicting recollections of local farmers as in the Lowden-Touchet as to winter flows in the mainstem.

Don Buckley and Scott Byerley testified that winter flows in the mainstem were generally high and could amply fill the Byerley Farms’ diversion without interfering with existing water uses. Don Buckley, whose farm is divided by the mainstem, recollected that high water levels during April of one year forced him to swim his cattle across the river.

XVI.

However, Tom Bergevin and Edward Chvatal, Jr., who both farm downstream of Byerley Farms, remembered years when winter water levels in the Walla Walla River were low. Mr. Bergevin recalled that due to low winter water levels in the mainstem, the water master had regulated irrigation on his farm two or three times between February 20th and April 10th over the past fifty years. Moreover, Mr. Bergevin stated that since the 1970’s, he had voluntarily released water to farmers holding senior water rights three or four times during the permit period. While the crops he raises do not require winter water, Mr. Bergevin uses his winter water right of 9.5 cfs for 710 acres to fill the soil profile of summer crops as early as February 1st where the preceding Autumn was dry.

XVII.

Mr. Chvatal possesses a winter water right to irrigate 115 acres, and irrigates, in part, from the Burlingame ditch. The Burlingame water right is senior to Mr. Chvatal’s--and very large. Irrigation from the Burlingame ditch can begin as early as March 1st in any given year and, on occasion, can continue to Christmas.

In March of 1994, DOE regulated Mr. Chvatal’s water use to service the senior Burlingame right for two to three weeks because of low water volume in the mainstem. Moreover, even before DOE stepped in, Mr. Chvatal began rationing his water use early in the month to accommodate the Burlingame right. All Spring he was short of water and, as the season progressed, the shortage became worse. Nor was 1994 the only year of insufficient water. Mr. Chvatal also experienced water shortages in 1977.

XVIII.

The fact that, on occasion, DOE has regulated existing water rights between February 20th and April 10th due to insufficient water does not, however, undermine the conclusion that winter water levels in the mainstem are generally available to support the Byerley Farm’s permit. Indeed, the testimony of Mr. Bergevin and Mr. Chvatal demonstrates that winter water levels in the Walla Walla are generally sufficient to satisfy their needs--for DOE has only occasionally regulated their winter water use over the past fifty years. Therefore, DOE correctly concluded that there is, in general, water available for the appropriation sought by Byerley Farms from February 20th to April 10th.

XIX.

Not only is there generally water available for the appropriation, but the Board concludes that the Byerley Farms’ appropriation would not interfere with existing water rights--appellants’ second objection to this water rights permit.

The Byerley Farms’ appropriation would unquestionably be junior to those of Mr. Bergevin, Mr. Chvatal or any other farmer with an existing, perfected right along the Walla Walla. On those occasions when winter flows are low in the mainstem, and farmers, like Mr. Bergevin and Mr. Chvatal, begin irrigating in early February to compensate for a dry Fall, DOE may regulate Byerley Farms’ water use to divert water to farmers holding superior rights. The fact that DOE has regulated this reach of the mainstem before during the winter does not demonstrate that the Byerley Farms diversion will, in general, interfere with existing water rights. Indeed, DOE’s past regulation indicates that, on those rare occasions when there is insufficient water, DOE will regulate the Byerley Farms water right permit to prevent or limit interference with presently existing rights.

XX.

But while the legal priority between junior and senior rights may be clear, farmers are dependent upon DOE to regulate water allocation when junior rights interfere with senior rights in times of insufficient water. Presently, as much as three days can pass between when the interference occurs and when DOE, through Bill Neve, shuts off a junior water right to satisfy a senior water right.[5] Appellants suggest that this delay between when the interference occurs and when DOE regulates the interference will be exacerbated with the addition of the Byerley Farms’ appropriation. However, since there will be ample flows to service the Byerley Farms’ appropriation without interfering with senior rights most of the time, a possible delay in regulation of a few days, when a problem arises, is not tantamount to legal interference with another’s water right sufficient to bar DOE’s issuance of the instant permit to Byerley Farms.

XXI.

Appellants’ third objection to the Byerley Farms’ permit is that the diversion violates the public interest because DOE has not adequately estimated the baseflows required to protect summer steelhead in the diversion reach.

XXII.

Cognizant of the depressed state of the summer steelhead in the mainstem, DOE has conditioned the Byerley Farms’ permit to allow withdrawals only when the mainstem gage below the mouth of the Touchet River reads 504 cfs or more. DOE estimates that when the gage reads 504 cfs or more, streamflow at the Byerley Farms diversion will be 246 cfs. DOE used the “toe-width” method to determine that 246 cfs is adequate streamflow at the diversion to support all lifestages of summer steelhead, including the most critical lifestage---spawning. There is no evidence that this reach of the river is used by summer steelhead for any lifestage other than migration. Mr. Caldwell estimates that 80 cfs at the Byerley Farms’ diversion would provide adequate upstream migration flows for adult steelhead. Water flows are too low and water temperature is too high in summer when the eggs hatch, to support spawning in this reach. Nevertheless, Mr. Caldwell used spawning flows to set minimum baseline flows to compensate for any inherent error in the toe-width method.

XXIII.

Appellants question the accuracy and appropriateness of the toe-width method. The toe-width method measures a single parameter of the riparian habitat: the width of the gravel channel from the toe of one riverbank to the other. Mr. Neve and Mark Grandstaff of Washington Department of Fish and Wildlife, at the direction of Mr. Caldwell, took toe-width measurements at three transects along the Byerley Farms reach within 200 to 300 yards of the diversion point where the river exhibited a uniform depth and width. Mr. Neve furthermore determined that the three transect points were representative of the diversion reach.

XXIV.

The toe-width method unquestionably is a simplified means of determining minimum base flows when compared to Instream Flow Incremental Methodology (IFIM) studies. IFIM studies give a more detailed view of the relationship between riverflow and usable habitat encompassing consideration of factors such as the amount of gravel in the streambed, river configuration and precipitation levels.

DOE is charged under the 1971 Water Resources Act with setting minimum base flows for riverbasins statewide. DOE has set minimum base flows for about 200 to 250 rivers in the state using the toe-width method. DOE has only used IFIM studies for 15 rivers in the state. DOE relies primarily on the toe-width method for setting minimum base flows because IFIM studies are very expensive. As a general rule-of-thumb, DOE only requires water rights applicants to perform an IFIM study where the proposed diversion would amount to 10 percent or more of the total riverflow--which is not the case here.

XXV.

Mr. Caldwell, who is DOE’s instream flow expert, acknowledges that an IFIM study for the Walla Walla River would provide a more detailed and ultimately more precise means of setting base flows. However, he opined that the toe-width method was adequate for setting minimum flows because the width of the gravel streambed, the sole factor measured by the toe-width method, was the only factor that predicted minimum base flows with a high degree of accuracy. Nor did appellants adduce any evidence that any of the other characteristics of the Walla Walla mainstem, if factored into the minimum base flow calculation, would have changed the 246 cfs baseflow which DOE recommended.

Appellants’ also assert that the toe-width method is subjective, and therefore, flawed because it assumes that the toe of the riverbank can be adequately identified. However, appellants did not contest Mr. Neve’s statement that he had determined where the bare river bank met the riverbed in the diversion reach when he did the toe-width measurements.

XXVI.

Therefore, the toe-width measurements done for the diversion reach were adequate to set minimum flows especially since DOE used spawning flows as the target when the reach only supports migration of steelhead.

XXVII.

There is no gage on the mainstem Walla Walla at the proposed Byerley Farms diversion. Nor did DOE explain why Byerley Farms was not required to install such a gage as a condition of its permit.

In the absence of a gage at the Byerley Farms’ diversion, DOE can only ensure that at least 246 cfs remains there for the fishery by regulating waterflow at the mainstem gage below the mouth of the Touchet. Mr. Caldwell therefore had to correlate mainstem flows with actual flows at the diversion reach.

XXVIII.

Mr. Caldwell first compiled ten day flow averages at the mainstem for each year from 1952 through 1992, which were broken down to show the flow levels that were exceeded 10, 50 and 90 percent of the time. From those figures, Mr. Caldwell subtracted the ten day flow averages recorded at the Touchet River gage from January 1st to June 1st from 1944 through 1955. He then deducted the ten day flow averages collected from the Dry Creek gage from January 1st to June 1st every year from 1949 through 1967. From these deductions, Mr. Caldwell was able to estimate the ten day flow averages exceeded 10, 50 and 90 percent of the time in the Byerley Farms’ reach.

Mr. Caldwell acknowledged that the periods of record for the three rivers conflicted, but asserted that each period of record was long enough--at least ten years--to provide the basis for a sound comparison. Moreover, he pointed out that even though the data for the Touchet River was forty years old, no significant new diversions had occurred on the river since then so the data remained reasonably accurate.

IXXX.

From his calculations, Mr. Caldwell determined that to ensure that flows at the Byerley Farms’ diversion exceeded 246 cfs 90 percent of the time, flows at the mainstem gage would have to be at least 504 cfs 90 percent of the time. However, flows at the mainstem gage exceeded 504 cfs 90 percent of the time only between February 11th and April 10th of each year. DOE therefore limited the duration of the Byerley Farms’ permit to February 20th to April 10th.

XXX.

Appellants contend that DOE could have better predicted flows at the Byerley Farms’ diversion by adding together stream flow data for the three upstream gages, located on Mill Creek and the North and South forks of the mainstem. Mr. Oestman, appellants’ expert, compared the combined streamflows from the three upstream gages with readings at the mainstem gage from February 20th through April 10th. The period of record for the three upstream gages and the mainstem gage was identical: 1983 through 1990. In so doing, he found 11 days out of the 402 days he surveyed when streamflow at the Byerley Farms’ diversion was less than 246 cfs while the mainstem gage exceeded 504 cfs.

Rather than undercutting DOE’s methodology, Mr. Oestman’s data ultimately supports it. Mr. Oestman’s data shows that combined flows from the three upstream tributaries fell below 246 cfs while the mainstem gage exceeded 504 cfs less than 3 percent of the time from 1983-1990. That is a lower margin of error than Mr. Caldwell assumed in his calculations.

Hence, using either the method of Mr. Caldwell or Mr. Oestman to estimate streamflow at the diversion reach, it appears when the mainstem gage reads 504 cfs flows in the diversion reach will be at least 246 cfs, the vast majority of the time. Moreover, even on those rare occasions when flows in the diversion reach fall below 246 cfs, yet the Byerley Farms’ diversion is not shut off because the mainstem gage reads at least 504 cfs, DOE has ensured there will be no detriment to the fishery by using spawning flows, rather than migration flows, to set minimum flows for the diversion reach.

XXXI.

Any Conclusion of Law deemed to be a Finding of Fact is hereby adopted as such.

From these Findings of Fact, the Board issues these:

CONCLUSIONS OF LAW

I.

The board has jurisdiction over this matter pursuant to RCW 43.21B.110.

II.

RCW 90.03.240 of the Water Code governs new appropriations of water and charges DOE to investigate water rights applications to determine what water is available for appropriation and, if the beneficial use is irrigation, what lands are capable of irrigation. If DOE’s investigation determines that: 1) water is available for appropriation for a beneficial use, 2) the appropriation will not impair existing water rights, and 3) the appropriation will not be detrimental to the public welfare, the statute provides that DOE “shall issue a permit.” RCW 90.03.240. DOE’s mandatory duty stems from the state’s well-established policy of “obtaining maximum net benefits arising from both diversionary uses of the state’s public waters and the retention of waters within streams in sufficient quantity and quality to protect instream and natural values and rights.” RCW 90.03.005.

III.

Appellants have the burden of proof of showing that DOE erred in granting the Byerley Farms’ permit because DOE incorrectly determined that: 1) water was available for appropriation for a beneficial use; 2) the appropriation will not impair existing rights or 3) the appropriation will not impair the public interest in preserving the summer steelhead of the Walla Walla. Appellants have not met their burden of proof.

IV.

The winter flows of the Walla Walla River are almost, if not completely, accounted for by the adjudicated rights of water users. However, it is equally clear that the mainstem routinely exhibits high flows in the winter, and that water levels sufficient to satisfy the proposed diversion and to maintain 504 cfs at the mainstem gage occur over 90 percent of the time during the permit period. Since there were only 49 days during the permit period from 1983-1990 where the mainstem gage fell below 504 cfs, plainly, many of those possessing winter water rights along the river are not fully exercising those rights.

The concept of beneficial use is the cornerstone of Western water law and encompasses two meanings. Throughout this order, the term has referred to the purpose for which the water is used. But the term has a second meaning: the measure of the water right--the amount of water that the owner has, and can, reasonably put to use. Ecology v. Grimes, 121 Wn.2d 459, 468 (1993). Based upon years and years of relatively high winter flows in the Walla Walla, DOE correctly concluded that notwithstanding outstanding adjudicated rights to nearly all the winter flows of the river, the owners of those rights were not using their full measure. Hence, water is available for the Byerley Farm’s appropriation as long as the Byerley Farms’ right is both junior to other users and to the instream flows required to protect the fishery.

V.

The Byerley Farms’ appropriation will be junior to all other certificate holders in the Walla Walla basin. On occasion during the winter, Mr. Neve has regulated farmers along the Walla Walla River when riverflow fell and junior water rights briefly interfered with senior water rights. Presumably, DOE will likewise regulate the Byerley Farms’ diversion if it interferes with senior water rights during low winter flows. In short, the Byerley Farms’ diversion will not, except in the rare instance, interfere with existing water rights, and even when such interference occurs it will be temporary and quickly remedied by regulation. Temporary interference that is cured by regulation does not rise to the level of legal interference with senior water rights sufficient to warrant denying the Byerley Farms’ permit.

VI.

RCW 90.54.020 of the Water Resources Act states that preserving base flows in rivers and streams is fundamental to managing Washington’s waters and prohibits new consumptive uses of water that would interfere with those base flows. DOE could not issue the Byerley Farms’ water right permit until base flows were set for the Byerley Farms’ reach. Accordingly, DOE calculated a 246 cfs base flow for the reach to meet its statutory obligation. DOE compensated for any inherent error in its toe-width measurement and method for estimating flows at the diversion reach by setting spawning base flows for the Byerley Farms’ reach even though it only supports steelhead migration.

However, the board is cognizant that this water right permit, if perfected, will become appurtenant to the land and continue in perpetuity unless it is abandoned or relinquished. DOE will not be able to modify it in the future if conditions change on the Walla Walla or DOE’s best-estimate of minimum baseflow at the Byerley Farms’ diversion proves inadequate to protect the fishery. Moreover, DOE will require flexibility in setting baseflows in the diversion to meet the requirements of spring chinook salmon if plans to reintroduce that species to the Walla Walla materialize. Consequently, the board will further condition the Byerley Farms’ permit to allow the diversion to be interrupted to provide adequate flows for anadromous fish spawning and passage.

VII.

Finally, DOE’s ability to ensure that the mainstem has adequate flows for fish and senior water rights holders depends on the continued operation of the mainstem gage. To address the possibility that the mainstem gage may someday cease to operate, the board will further condition the permit to provide that DOE may, at anytime, require Byerley Farms to install a gage at its expense and subject to DOE’s specifications.

VIII.

Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such.

From the foregoing, the Board issues this:

ORDER

IT IS HEREBY ORDERED that DOE’s issuance of a surface water permit to Byerley Farms pursuant to Application No. S3-29174 is AFFIRMED, subject to the following, additional conditions:

1. DOE, at its discretion, may require Byerley Farms to install, at its own expense and according to DOE’s specifications, a gage to measure riverflow at the Byerley Farms’ diversion.

2. DOE, at its discretion, may interrupt or reduce the amount or duration of the diversion to Byerley Farms, even where flows at the mainstem gage are at least 504 cfs or flows at the diversion are at least 246 cfs, as DOE deems necessary to protect spawning and migration flows of anadromous fish in the Walla Walla, including species which may be reintroduced to the river in the future.

IT IS FURTHER ORDERED that appellants’ consolidated appeals are DENIED.

DONE, this 27th day of November, 1995.

POLLUTION CONTROL HEARINGS BOARD

RICHARD C. KELLEY, Chairman

ROBERT V. JENSEN, Member

JAMES A. TUPPER, Jr., Member

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[1] During DOE’s investigation of the water rights application, Byerley Farms agreed to reduce the number of acres to be serviced by the supplemental surface water right to 680--to reflect the number of acres actually irrigated during the winter. Byerley Farms also agreed to reduce the permit period from roughly seven months to less than two months, from February 20th through April 10th.

[2] Appellants conceded during the hearing that Byerley Farms intends to put the water sought to beneficial use.

[3] The Department of Wildlife also initially objected to S3-29174 because DOE had not set adequate minimum instream flows for the fishery. The Department withdrew its objection once DOE set a minimum instream flow of 246 cfs for the Byerley Farms’ diversion reach. DOE, moreover, not only adopted the Department’s recommendation that Byerley Farms’ appropriation be limited to between December 1st to April 30th, but made it more stringent and restricted it to between February 20th and April 10th, as a condition of the permit.

[4] Hydraulic continuity, as that term is used here, refers to the interconnection between ground water and surface water--such as aquifers discharging to springs and streams and, conversely, seepage from a riverbed to an alluvial acquifer. Pacific Groundwater Group, Initial Watershed Assessment Water Resources Inventory Area 32 Walla Walla River Watershed, at 28 (May 5, 1995).

[5] Bill Neve has regulated water rights for DOE along the Walla Walla River for the past seven years. Although DOE has assigned him to regulate water rights in four counties, he nonetheless spends 80-90 percent of his time in Walla Walla County. The presiding officer precluded appellants from introducing evidence that DOE, through Mr. Neve, had failed to regulate adequately competing water rights in the Walla Walla basin. That issue is beyond the scope of the narrow legal question posed by this case. To the extent that appellants are aggrieved by DOE’s failure or inability due to lack of resources to regulate between water rights holders, their remedy is a mandamus action in Superior Court or in the legislature.