POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

CENTER FOR ENVIRONMENTAL)

LAW & POLICY,                               )           PCHB NO. 96-165

                                                            )

                                    Appellant,         )

                                                            )

            v.                                             )           ORDER DENYING

                                                            )           SUMMARY JUDGMENT

STATE OF WASHINGTON,            )

DEPARTMENT OF ECOLOGY, and)

DEPARTMENT OF NATURAL         )

RESOURCES,                         )

                                                            )

                                    Respondents.    )

______________________________)

 

I

 

            On September 3, 1996, appellant Center for Environmental Law and Policy (CELP)

filed its Motion for Summary judgment with attachments.

II

            On October 13, 1997, CELP was permitted to file a Supplemental Memorandum in support of its motion, with attachments.

III

            On January 5, 1998, respondent Department of Natural Resources filed its        Memorandum in Response, with attachments.

IV

            On January 5, 1998, respondent Department of Ecology filed its Response.

V

            On February 20, 1998, CELP filed its Reply Memorandum, with attachments.

            Having considered the foregoing, together with the record and file herein, and being fully advised, the following is now entered:

I

            Summary judgment is proper only under the following rule:

            (c)  ...The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law...

 

CR 56 (emphasis added).  See WAC 371-08-300(2).

II

            Appellant, CELP is the moving party.  It bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.  Atherton Condominium Apartment-Owners Ass’n v. Blume Dev. Co., 115 Wn. 2d 506, 516, 799 P.2d 250 (1990).  In determining whether there exists a genuine issue for trial, courts draw all reasonable inferences in the light most favorable to the non-moving party.  Id.

III

            Ecology may deny a groundwater application if necessary to protect minimum instream flows in a surface water with which that groundwater is in hydraulic continuity.  “In The Matter of Appeals From Water Rights Decisions of the Department of Ecology, PCHB No. 96-8 (1996) (Order on Motions for Summary Judgment--State-Wide Issues).  That, however, is not this case.  CELP has not shown that the instream flows (adopted at chapter 173-563 WAC) in the Columbia River (surface water) are threatened by the proposed appropriation of groundwater. 

IV

            The moratorium formerly in effect for the Columbia River has been lifted.  ESHB 1110, Laws of 1997, chapter 439.  No executive order has taken its place. 

V

            In light of these circumstances, there is no basis to grant judgment, as a matter of law, that the waters of the Columbia River are not “available” for appropriation as that term is used in the Water Code at RCW 90.03.290.

VI

            Where waters proposed for withdrawal or appropriation are above the instream flows set by regulation, denial is not automatic.  Neither, however, is approval automatic.  There still remains the issue, under the Water Code at RCW 90.03.290, of the “public interest.”  The public interest determination must be made in view of environmental, navigational and other values protected by the Water Resources Act of 1971.  Stempel v. Dep’t of Water Resources, 82 Wn. 2d 109, 508 P. 2d 166 (1973).[1]

VII

            It is not sufficient to warrant denial that water from the Columbia River may be appropriated.  Were any diminution in streamflow a basis for denial, there might be no water rights.  It is not sufficient to warrant approval that water apparently is available above instream flows.  We have jurisdiction to consider evidence tending to show whether an appropriation is consistent with the public interest under RCW 90.03.290, including whether the waters in question will be allocated based on securing the maximum net benefit, under the Water Resources Act.  RCW 90.54.020(2).

VIII

            There are genuine issues of material fact raised by the declarations and file.  While certain preliminary facts may not be at issue, the parties are in diametrical disagreement over the proposal’s relative effect upon instream and out of stream uses.  Accordingly, this matter should advance to trial.

IX

            CELP contends that a remand may be in order because Ecology did not initially accept the conclusion of hydraulic continuity during the era of the Columbia River moratorium.  We disagree.  The moratorium has now ended so that it alone is not fatal to the DNR application, even assuming hydraulic continuity.  In our de novo proceedings, Ecology may proceed on an altered footing from the one which it began upon, if it believes that the same result can be sustained.  This is analogous to the rule that an appellate court may sustain a trial court on any correct ground, even though that ground was not considered by the trial court.  Moore v. Wayman 85 Wn. App. 710 (1997).  In this proceeding, Ecology should have the opportunity to proceed in whatever way it believes may sustain its result.

X

            There are genuine issues of material fact, and it does not appear that the moving party is entitled to judgment as a matter of law.

            WHEREFORE IT IS ORDERED that the Motion for Summary Judgment is denied.

            DONE at Lacey, Washington, this 12th day of March, 1998.

 

 

POLLUTION CONTROL HEARINGS BOARD

 

JAMES A. TUPPER, JR., Chair

 

ROBERT V. JENSEN, Member

 

ANN DALEY, Member

 

P96-165S



[1]  In Northwest Salmon and Steelhead Council v. Department of Ecology and the City of Tacoma, PCHB No. 81-148 (1983), we distinguished between appropriations which might conflict with instream flows set by regulation, and those which would not.  The former are subject to the “overriding considerations of public interest” standard of RCW 90.54.020(3)(a).  Northwest Steelhead at Conclusion of Law VII.  The latter are subject only to the “maximum net benefits” standard of RCW 90.54.020(2).  Northwest Steelhead, Conclusion of Law VIII.