BEFORE THE POLLUTION CONTROL HEARINGS BOARD
STATE OF WASHINGTON
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CONFEDERATED TRIBES AND BANDS OF THE YAKAMA NATION, NEZ PERCE TRIBE, and CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION, Appellants, v. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY; MERCER RANCHES, INC.; KENNEWICK IRRIGATION DISTRICT; KENNEWICK PUBLIC HOSPITAL DISTRICT; and LOWER STEMILT IRRIGATION DISTRICT; Respondents. |
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PCHB 03-030 through 036 ORDER GRANTING AND DENYING SUMMARY JUDGMENT AND REMAND |
All the appellants, consisting of the Confederated Tribes and Bands of the Yakama Nation (“Yakama Nation”), the Nez Perce Tribe (“Nez Perce”), and the Confederated Tribes of the Umatilla Indian Reservation (“CTUIR”), collectively referred to as the “Tribes,” and the respondent Department of Ecology (“Ecology”) have brought motions for partial summary judgment.
Richard K. Eichstaedt, attorney for the Nez Perce Tribe; Harold Shepherd, attorney for the CTUIR; and Thomas Zeilman, attorney for the Yakama Nation, represent the Tribes. Assistant Attorneys General Alan M. Reichman and Barbara A. Markham, represent Ecology. Attorney Brian J. Iller, represents the Kennewick Irrigation District (“KID”). Attorneys Floyd E. Ivey and Ronald F. St. Hilaire represent the Kennewick Public Hospital District (“KPHD”).
The Pollution Control Hearings Board (“Board”), comprised of Robert V. Jensen, presiding; William H. Lynch, Chair, and Kaleen Cottingham reviewed the pleadings and record pertinent to these motions. These pleadings are:
1. Motion for Summary Judgment;
2. Memorandum in Support of Motion for Summary Judgment;
3. Declaration of Richard K. Eichstaedt in Support of Appellants’ Motion for Summary Judgment, including Exhibits A through S;
4. Declaration of Anthony Johnson, Chairman,Nez Perce Tribal Executive Committee;
5. Declaration of N. Kathryn Brigham, Board of Trustees, Confederated Tribes of the Umatilla;
6. Appendix of Cited Cases;
7. Proposed Order Granting Appellants’ Motion for Summary Judgment;
8. Kennewick Irrigation District’s Memorandum in Opposition to Appellant Tribes’ Motion for Summary Judgment;
9. Declaration of Brian J. Iller in Opposition to Appellant Tribes’ Motion for Summary Judgment, including Exhibits 1-9;
10. Respondent Department of Ecology’s Response to Appellants’ Motion for Summary Judgment;
11. Declaration or Robert F. Barwin in Support of Department of Ecology’s Response to Appellants’ Motion for Summary Judgment, including Exhibits 1 and 2;
12. Declaration of Barbara A. Markham in Support of Department of Ecology’s Response to Appellants’ Motion for Summary Judgment, including Exhibits A and B;
13. Reply in Support of Appellants’ Motion for Summary Judgment;
14. Appendix of Cited Cases;
15. Department of Ecology’s Motion for Partial Summary Judgment;
16. Department of Ecology’s Memorandum in Support of Motion for Partial Summary Judgment;
17. Declaration of Robert F. Barwin in Support of Department of Ecology’s Motion for Partial Summary Judgment, including Exhibits 1-3;
18. Declaration of Jonathan Brenn in Support of Department of Ecology’s Motion for Partial Summary Judgment;
19. Joinder of Respondent Kennewick Irrigation District in Ecology’s Motion for Partial Summary Judgment;
20. Response in Opposition to Department of Ecology’s Motion for Partial Summary Judgment;
21. Declaration of Richard K. Eichstaedt in Support of Appellants’ Opposition to Department of Ecology’s Motion for Partial Summary Judgment, including Exhibits A through D;
22. Appendix of Cited Cases;
23. Kennewick Public Hospital District’s Response to Ecology’s Motion for Partial Summary Judgment;
24. Kennewick Public Hospital District’s Response to Appellants’ Motion for Summary Judgment;
25. Respondent Department of Ecology’s Reply Memorandum on Motion for Partial Summary Judgment; and
26. Declaration of Alan M. Reichman in Support of Ecology’s Reply Memorandum on Motion for Partial Summary Judgment, including Exhibits 1 and 2.
The Tribes contend: 1) Ecology failed to consult with the Nez Perce Tribe and the CTUIR, as required by WAC 173-531A-060 and WAC 173-563-020(4, 2) Ecology failed to comply with applicable laws and regulations by failing to consider whether the Reports of Examination (“ROEs”) conflict with existing water rights, 3) Ecology failed to comply with applicable laws and regulations by failing to consider the cumulative effects of the ROEs, and 4) Ecology failed to consider the public interest and injury to existing water rights in issuing the ROEs to the KPHD.
The issues in the case are:
1. Did Ecology issue water permits Nos.: S4-29956, 31083, 30052, 30465 and 30584 in compliance with the state water laws and regulations?
2. Did Ecology comply with the State Environmental Policy Act (“SEPA”) in issuing water permit No. S4-30584?
3. Did Ecology evaluate the above water permit applications for possible impacts on fish and existing water rights in accordance with relevant law requiring instream flow protection or mitigation conditions based on consultation with appropriate local, state and federal agencies and Indian Tribes consistent with WAC 173-531A-060 and 173-563-020(4)?
4. Do the Tribes have standing to raise the above issues in this appeal?
The first contention is based on issue three above. The second and third contentions are based on issues one and three. However, as phrased, the contentions do not go to the ultimate question raised by that issue, which is: Did Ecology issue water permits Nos.: S4-29956, 31083, 30052, 30465 and 30584 in compliance with the state water laws and regulations? Rather, the issues ask a preliminary question, namely, did Ecology adequately investigate the permits for impairment and cumulative effects.
The fourth contention is also based upon issue one. It appears to ask an ultimate question, namely does the Kennewick ROE violate the public interest? However, it is argued and based upon the premise the KPHD application was for a change of a water right. KPHD originally applied for a diversion of 99.7 cubic feet per second (“cfs”). Following a protest of the Lower Columbia Audubon Society, the KPHD lowered its application request to 49.5 cfs, and replaced the original two points of diversion with one diversion point, located between the original two. The Tribes argue this was done to evade the State Environmental Policy Act (“SEPA”) threshold for categorical exemptions of 50 cfs.
Ecology asks for partial summary judgment on issue two above, and brings a cross motion for summary judgment on whether Ecology consulted with the Nez Perce and Umatilla Tribes.
DISCUSSION
The Board grants to the Tribes, their motion that Ecology did not consult with them, as required by WAC 173-531A and WAC 173-563-020(4), prior to issuing the ROEs in question. Therefore, we remand these permit applications to Ecology to properly consult with the Tribes prior to issuing a final decision granting, granting with conditions, or denying these permit applications.
We grant Ecology’s motion concerning the agency’s compliance with SEPA. We conclude the five water right decisions being challenged before the Board do not constitute one proposal, as envisioned under the SEPA regulations, and therefore do not qualify for the exception to the categorical exemption from SEPA’s threshold decision requirements.
We deny summary judgment to the Tribes’ on their motion contending the KPHD’s application is an improper change of a water right. The record reveals the KPHD never received a water right permit before it reduced its application. Therefore the Tribes’ motion fails, because it is based upon a faulty premise. However the Tribes may still challenge at hearing the consistency of Ecology’s approval of the KPHD water permit with the applicable laws under issues one and three.
Finally, we deny the Tribes’ motions for summary judgment on the issues of impairment and cumulative impacts, because there are genuine issues of material fact, which compel a trial on the merits of whether the water right permits ultimately granted by Ecology would impair existing water rights, or whether the cumulative impacts related to these applications would violate the public interest.
FACTUAL BACKGROUND
I
Washington’s water withdrawals reduce flows in the Columbia River. A 1999 study by the Bureau of Reclamation (“BOR”) revealed Ecology and its predecessor agencies have issued over 200,000 cfs of instantaneous flow in the form of surface and groundwater irrigation water rights and nearly 8 million acre-feet per year (“afy”), during the April to November agricultural season above McNary Dam. McNary Dam lies just below the bend in the Columbia River south of the Quad Cities (Pasco, Kennewick, Richland, and West Richland). On the Snake River, a major tributary to the Columbia, another 110,000 cfs in instantaneous flow and about 4 million afy, have been granted above Lower Granite Dam. Lower Granite Dam is the first Snake River Dam downstream of Clarkston, Washington, near the Washington/Idaho border. These water rights account for nearly 40% of the average natural Columbia River flow at McNary Dam, during low flow periods.
II
In addition, Ecology has issued approximately 150 water withdrawal permits from the groundwater, which are partially inchoate. Inchoate rights are basically water permits, which have not been put to full beneficial use for the amount allocated, but which remain in good standing so long as reasonable diligence towards actual beneficial use of the water is exercised. These rights will further deplete low flows as permittees gradually use their full rights. These rights total about 1,600 cfs, or approximately 330,000 acre-feet of water.
III
Finally, Ecology has received applications for an additional 1,000 cfs of water diversions and withdrawals from the Columbia River, which includes the applications subject to this appeal.
IV
The fisheries of the Columbia River are now estimated at less than 10% of their historic levels. This figure includes both hatchery and native stocks. Thirteen salmonid populations have been listed as threatened or endangered under the Endangered Species Act (“ESA”).
V
Ecology, in 1980, adopted instream flows for the Columbia River. WAC 173-563. These flows were in response to the need of important fisheries. In support of these flows Ecology wrote:
The Columbia River is an international as well as an interstate river with its water subject to laws of seven western states, the Province of British Columbia, and the federal governments of the United States and Canada. The flows and levels of the river are in a state of continuous change through the operation of numerous federally owned or federally licensed dams located within the river. The waters of the Columbia River are operated to support extensive irrigation development, inland navigation, municipal and industrial uses, and hydroelectric power development. Among all these uses, the anadromous fisheries of the Columbia River, which are dependent on clean flowing water, require for their survival the establishment of minimum flows of water and special actions by all agencies sharing in the management of the Columbia River.
. . .
WAC 173-563-010.
VI
In 1993, Ecology, in response to the listings of threatened or endangered salmonid species, adopted WAC173-563-015, which created a moratorium on further appropriations of surface water from the main stem of the Columbia River, or groundwater which is part of or tributary to the main stem. WAC 173-563-015(2). The regulation was aimed at obtaining sufficient information to determine whether sufficient water is available to make sound water allocation decisions in the future. WAC 173-563-015(1). The regulation was to expire June 30, 1994, unless amended earlier. WAC 173-563-015(6). Ecology extended it, effective February 3, 1995, until 1999.
VII
Governor Locke signed ESHB 1110, eliminating the Columbia River moratorium in June 1997. It went into effect August 18 of that year. He directed Ecology to immediately begin amending the Columbia River water allocation rule, announcing no water allocations would be allowed until the agency updated the instream flow and water allocation rules. These instream flows had last been adopted for the Columbia River in 1980.
VIII
Ecology, on March 30, 1998, promulgated a new rule to replace the moratorium regulation. It became effective one month later. This new rule amended the 1980 instream rules. This amendment provided that the instream flows established for instream and out-of-stream uses under the 1980 rules would not apply to any decision by Ecology approving or denying a water right application on the main stem of the Columbia River, after July 27, 1997.
IX
The regulation further provided Ecology’s water right allocation decisions on the Columbia River after that date would be subject to instream flow protection or mitigation on a case-by-case evaluation of possible fish impacts and existing water rights. The evaluation would be conducted with “appropriate local, state, and federal agencies and Indian tribes.” WAC 173-563-020(4); WAC 173-561A-060. The relevant language, regarding the duty of Ecology to consult with the tribes, which is contained in both regulations, directs as follows:
Any water right application considered for approval or denial after that date will be evaluated for possible impacts on fish and existing water rights. The department will consult with appropriate local, state, and federal agencies and Indian tribes to make this evaluation. Any permit which is then approved for the use of such waters will be, if deemed necessary, subjected to instream flow protection or mitigation conditions determined on a case-by-case basis through the evaluation conducted with the agencies and the tribes. (Emphasis added).
X
After conservationists petitioned the state to adopt a new rule in 2000, the Governor’s Office committed to establishing the Columbia River Initiative (“CRI”). CRI, is a stakeholder-based planning group designed to determine the impacts of water diversions on flows and fish in the Columbia, and to develop rules governing the issuance of future water right permits.
XI
In response to the first listing of Snake River sockeye in 1991, the operations of the dams on the Columbia/Snake Rivers, collectively referred to as the Federal Columbia River Power System (“FCRPS”), were modified to improve flows in the lower Columbia River. These operations were modified again in 1995, after the issuance of the 1995 FCRPS Biological Opinion. On December 21, 2000, the National Marine Fisheries Service issued the 2000 Biological Opinion. This opinion was the product of consultations between state, federal, and tribal representatives. The opinion established flow objectives. These flow objectives are also referred to as Target flows. The Target flows are based on the finding higher flows reduce salmonid smolt travel time, consequently increasing subsequent returns of adults from a smolt-year class. A smolt is a young salmon when it first leaves fresh water and enters the sea.
XII
Data reveals that from 1996-2001, the Target flows were not typically met in July or August. 2001 was a drought year.
XIII
Ecology issued approximately 330 water permits on the Columbia River, subsequent to its adoption of the 1980 instream flow regulation. These rights are interruptible during low flow conditions, in order to retain water in the river. During the 2001 drought, Ecology invoked the “overriding public interest” exception to the regulation, allowing private irrigators to continue diverting from the Columbia, even though the 2000 Target flows were not met for several months that summer.
XIV
Both the Nez Perce Tribe and the CTUIR have recognized treaty-reserved fishing rights on the Columbia River and certain tributaries. The ceded lands of the Umatilla Tribe encompass the area of the Columbia River, from which the water permit applications propose to divert water. Ecology never directly contacted the Nez Perce or the CTUIR in relation to the water right applications under appeal. Neither the Nez Perce, nor the CTUIR are mentioned in Ecology’s listing of the agencies it consulted concerning the five water permit applications under challenge here. However, the Yakama Nation and the Colville Tribes are included on that list.
XV
On October 30, 1998, Keith E. Phillips, the Manager of Ecology’s water resource program wrote a letter to Ted Strong, listed as the Director of the Columbia River Inter-Tribal Fish Commission (“CRITF”). The Nez Perce Tribe, the CTUIR, the Yakama Nation, and the Warm Springs Reservation of Oregon created that organization in 1977. The organization was created, in part, “to formulate a broad, general fisheries program designed to promote the conservation practices of its members.”
XVI
Mr. Phillips apprised the organization that Ecology had recently amended its regulations to address the elimination by the Legislature of the agency’s moratorium on granting water rights from the Columbia River. Mr. Phillips wrote “[t]he most significant change to the rules is that all applications are now subject to a “consultation” regarding potential impacts of requested diversions on flows for fish and existing rights.” The letter asked the CRITF to identify an individual to participate in the initial consultation. Mr. Phillips asked that representative to complete the review within approximately 60 days, which would have been December 31 of 1998.
XVII
Mr. Phillips explained Ecology would contact Mr. Strong’s office within two weeks, to ascertain whom CRITF had assigned the task of consultation, so Ecology could provide that person any necessary clarification. Mr. Phillips then wrote:
Once we have received comments from all reviewers we may need to have at least one meeting to discuss differing recommendations and potential mitigation activities, if appropriate. Following this, Ecology will make the final decision regarding approval or denial of the applications. If a new diversion is approved, any conditions on the use of the water will be based, at least partially, on the information obtained through the consultation.
XVIII
There was no further contact between Ecology and CRITF, until Don Sampson, the Executive Director of CRITF, wrote a letter nearly three years later, dated September 28, 2001 to the Director of Ecology. The letter lacks any reference to Ecology’s 1998 letter. It begins by stating: “We recently became aware that the Washington Department of Ecology (“WDOE”) is considering approving several water withdrawal permits that would affect the Columbia River mainstream. The Columbia River Inter Tribal Fish Commission (“CRITF”) on behalf of its member tribes, respectfully requests you reconsider this course of action.”
XIX
Mr. Sampson referred to another set of applications for Columbia River diversions from the Quad Cities. He cited a Report of Examination in that situation which stated the National Marine Fisheries Service (“NMFS”), the Bureau of Reclamation (“BOR”), the Yakama Nation and the Washington State Department of Fish and Wildlife (“WDF&W”) all agreed that flows are vital to salmonids. Mr. Sampson then wrote: “The agencies also seem to agree that any withdrawals should be carefully tailored so that flow objectives are met, summer withdrawals are prohibited, and the result of withdrawals is “zero net impact” to flow levels.”
XX
Mr. Sampson closed by attaching various studies supporting the need for flows to protect salmonids. He encouraged Ecology to examine these studies before making its allocation decisions on the pending applications. Finally, he wrote the organization concurred with and incorporated by reference letters of the Yakama Nation commenting on the applications, dated July 28, 1999 and September 28, 2001(the same date as the CRITF letter).
XXI
Ecology’s ROEs in the five applications being considered contain a section entitled “Consultation Process.” This section identifies the County in which the water permit diversion is located, the Bonneville Power Administration (“BPA”), the BOR, the NMFS, the Yakama Nation, (except for the Mercer Ranches application) and in regard to the Lower Stemilt Irrigation District, the Colville Confederated Tribes. None of the ROEs reference consultation with the CRITF, the Nez Perce Tribe, or the CTUIR.[1]
XXII
Ecology simultaneously issued ROEs approving these applications for surface water right diversions from the Columbia River. Two applications were from the Lower Stemilt Irrigation District, for irrigation. The total diversions of these two applications would be for 7.11 cfs instantaneous flow, 1,854 afy for irrigation of 590 acres from April 1 through October 31 each year, plus 35.1 afy for frost protection. The point of diversion would be on the Columbia River, in Chelan County, near the mouth of Stemilt Creek. Stemilt Creek enters the Columbia River above the Rock Island Dam. The KID application is for 82 cfs instantaneous diversion, 22,610 afy for irrigation of 46, 737 acres from March 15 through October 15 each year. The point of diversion for this application is on the Columbia River, in Benton County, near the confluence with the Yakima River. Mercer Ranches proposes to divert .016 cfs instantaneous, 8.7 afy for industrial food processing from April 1 through December 31 each year. The point of diversion is from the Columbia River in Klickitat County. The KPHD application is for 49 cfs instantaneous diversion, 13, 559 afy to irrigate 2,780 acres from March 1 through October 31 each year, plus 392 afy for frost protection. The point of diversion would be the Columbia River, downstream from Kennewick.
XXIII
The total water requested under these five applications is for approximately 138 cfs and for 38, 417 afy to irrigate 51,371 acres, and to provide water for a carrot processing and packing plant.
XXIV
Ecology determined four of the water right applications were categorically exempt from a SEPA threshold determination, on the ground they requested diversions of less than 50 cfs instantaneous flow. An affirmative SEPA threshold determination is made if the agency believes the action involved is a major action significantly affecting the quality of the environment. Ecology issued a negative SEPA determination, or a determination of nonsignificance (“DNS”) in 1992, for the fifth water application, which was from the KID for 82 cfs.
XXV
Ecology originally intended to issue the five applications, conditioned on compliance with the NMFS Target flows contained in its 2000 Biological Opinion. Ecology issued draft ROEs, based on the Target flows in September 2001. Ecology, however, was thwarted in this attempt by an injunction action brought against it in December 2001, by the Columbia-Snake River Irrigators Association (“CSRIA”) and the KHPD. The Benton County Superior Court concluded Ecology could not condition any water withdrawals on such flows, absent incorporating them in a regulation. At this point, Ecology apparently decided to settle and issue the ROEs without any explicit requirement the diversions meet the Target flows.
XXVI
The September 28, 2001 comments in the record from the CRITF were made at a time when apparently Ecology, the federal agencies, the WDF&W, as well as the tribes, essentially agreed the water permits should not be issued unless the Target flows were met. After Ecology changed its position, the record is silent to any effort by that agency to consult, or attempt to consult, with CRITF, the Nez Perce Tribe, or the CTUIR. According to the ROEs, all the consulted agencies with the exception of the local County, either deferred to NMFS, or they requested Ecology to deny or condition the applications to meet the Target flows. NMFS stated its policy was for “zero net impact” on low flows in the river. The agency allowed this could be met by replacement water to offset new water depletions, as long as the replacement waters were put to beneficial use.
XXVII
Ecology issued these five ROEs giving the applicants two options. The first was paying $10.00 per afy by March 1 of each year for the previous calendar year, for the full amount of water used under the permit as determined through annual metering records. The second option was to be subject to new rules developed through the CRI process. All of the applicants chose the first option. The applicants are not subject to either the Target flows, or the 1980 instream flows for the Columbia River.
XXVIII
The funds collected under option one are intended for two purposes: first, to fund acquisition of water or habitat to benefit listed salmonid species, which would be affected by the main stem diversions from the river; and second, to fund replacement water when the post 1980 water rights are subject to interruption to protect instream flows. This is when the summer runoff at The Dalles is 60 million acre-feet (“MAF”), or less. Ecology predicts this fund would need to be tapped for replacement water an average of once every 26 years, based on the probability that drought conditions would occur that often.
XXIX
Ecology supported its decisions by concluding each application would constitute a small percentage of the total average spring/summer flow of the mid-Columbia system, which the agency estimates at 150,000 cfs.
XXX
Ecology discussed the public interest and basically concluded the policies of the Water Resources Act of 1971 require a balancing of the “states natural resources and values with the state’s economic well-being.” The agency did not specifically identify a cumulative analysis of the impact of granting these water rights in its ROEs. However, Ecology maintains Robert Barwin, the agency person who signed the ROEs, actually performed a cumulative analysis before issuing these permits. It is unclear, however, from the record before us whether such analysis was done, or revisited in conjunction with the permits after Ecology decided to issue them without being subject to the Target flows.
ANALYSIS
XXXI
Summary judgment is appropriate when there are no genuine issues of material fact and judgment may be issued as a matter of law. CR 56; WAC 371-08-300(1). The burden is on the moving party to establish there is no genuine issue as to material fact, and as a matter of law, summary judgment is proper. Jacobson v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1997).
XXXII
Duty
to Consult with the Indian Tribes
We conclude consultation does not require negotiations. On the other hand, it requires more than a letter of notice of the possibility of consultation. We also conclude Ecology lawfully could have, based on the evidence before us, consulted with the CRITF, as a representative of the Nez Perce Tribe and the CTUIR. We also conclude Ecology may have consulted with the Tribes prior to the issuance of the draft permits in September 2001.
XXXIII
However, Ecology’s regulations require the agency to not only consult, but to evaluate instream flow protection or mitigation conditions with the agencies and the tribes before approving water diversions on the Columbia River. The comments in the record from the CRITF were made at a time when apparently Ecology, the federal agencies, the WDF&W, as well as the tribes essentially agreed the water permits should not be issued unless the Target flows were met. After Ecology changed its position, the record is silent to any attempt by that agency to consult with CRITF, the Nez Perce Tribe, or the CTUIR. Indeed, all the ROEs submitted to the Board reflect the consulted agencies, with the exception of the local County, requested Ecology to either deny the applications or condition them upon meeting the Target flows.
XXXIV
Therefore before Ecology decided to not impose the Target flows in the ROEs, can it reasonably be said Ecology consulted with those agencies or tribes to explore all the reasonable options to the issuance of the ROEs under appeal? The evidence before us leads us to conclude Ecology did not. We construe WAC 173-531A-060 and WAC 173-563-030(4) as requiring Ecology to engage in a meaningful, continuing consultation with the listed agencies, including the appropriate Indian tribes.
XXV
We believe Ecology’s argument, and those of the KID and the KPHD, interpret Ecology’s duty too narrowly here. If Ecology demonstrated it had persisted in its attempts to contact the Tribes or the CRITF on behalf of those tribes, and the Tribes deliberately resisted Ecology’s attempt to engage them in consultation and evaluation, the result would clearly be different. But that is not what the record reflects happened.
XXXVI
The most critical factor here is a basic change in condition. Originally, Ecology intended to issue an ROE, which the Tribe probably would not have objected to. It is, therefore, not surprising to see the absence of an attempt by the Tribes to be heavily involved in evaluating and meeting with Ecology to discuss these applications. However, Ecology changed its position and decided to issue the permits, absent a requirement they meet the Target flows. The fact they lost an argument in superior court did not absolve the agency from consulting with and seeking the advice and evaluation of the Tribes regarding alternatives designed to protect endangered salmonid runs before they issued these water right decisions.
XXXVII
The Administrative Procedure Act, which is designed to protect the right of the public to be involved in agency decision-making contains a procedure, which we find analogous to this situation. When an agency proposes a rule under that Act, it must give public notice and provide for a public hearing. If the agency proposes to adopt a rule, which is substantially different from the rule proposed, it must do one of the following: issue a supplemental notice and reopen the proceedings for public notice, withdraw the rule and commence a new rule-making procedure, or adopt the rule, so long as the rule pertains to the same general subject matter. In the event the agency adopts a regulation, which is substantially different from the regulation it originally proposed, any interested person may petition the agency to amend the rule within 60 days of publication of the rule in the State Register. If the petition meets the procedural requirements of the filing of such a petition, the agency is required to re-initiate rule-making proceedings on the amendments. RCW 34.05.340. The concept behind this process is sometimes referred to as the “logical outgrowth doctrine.”[2] It sets up substantial procedural protections when an agency basically changes its position in the rule-making process. We believe the right of the Tribes here to have the opportunity to advocate on behalf of protection of the native salmon resource; a resource threatened with extinction, and a resource which to them has great historical, cultural and economic value; is no less valuable than the right of the public to have a meaningful right to be heard in the rule-making process. Accordingly, we grant summary judgment to the Tribes on this issue. We vacate Ecology’s decision on these five applications and remand these applications to Ecology, so the agency may engage in meaningful consultation and evaluation of the applications with the Tribes, prior to rendering a final decision on them.
XXXVIII
Having so ruled, we nevertheless address the remaining issues in order to help the parties focus on the remaining issues should this case return to the Board.
XXXIX
SEPA
Exemption
RCW 43.21C.035, since 1974, has contained a statutory categorical exemption from the SEPA threshold requirement, which is designed to determine whether an environmental impact statement will be required. The statutory exemption applies to applications for irrigation project water appropriations, which would be 50 cfs or less. The Tribes argue the KPHD project required a threshold determination. Ecology and the KPHD argue to the contrary.
XL
Ecology and the KPHD have the better argument. First, the Tribes contend Ecology erred in issuing a change to the KPHD’s water permit. The KPHD originally applied for a diversion of 99.7 cfs. They changed this to 49.5 cfs, after a protest. The Tribes are incorrect on this count. Ecology never issued a water permit to the KPHD for the original application of 99.7 cfs. Rather the agency only issued a permit to the KPHD for 49.5 cfs. Thus, Ecology never made a change decision on this application.
XLI
Secondly, the Tribes argue the KPHD must be considered as physically or functionally related to the other four applications upon appeal here. They base this argument on WAC 197-11-305, which allows an exception to the categorical exemptions set forth in Part Nine of the SEPA rules.
XLII
This section, in relevant part provides for such an exception when:
(b) The proposal is part of a segment of a proposal that includes
(i) A series of actions, physically or functionally related to each other, some of which are categorically exempt and some of which are not; or
(ii) A series of exempt actions that are physically or functionally related to each other, and that together may have a probable significant adverse environmental impact in the judgment of an agency with jurisdiction. (Emphasis added).
WAC 197-11-305(1).
XLIII
This section, by its terms, only applies to categorical exemptions established in Ecology’s SEPA regulations. It does not apply to statutory categorical exemptions. The issue is clouded by the fact Ecology’s regulations repeat the statutory categorical exemption for agricultural irrigation in WAC 197-11-800(4)(a). Ecology, in its reply brief, submits documentation that it recently eliminated the agriculture exemption from the administrative categorical exemptions contained in its SEPA rules. This amendment became effective September 1, 2003. However, this regulation is not merely remedial, but involves substantive rights; therefore, it would not apply it retroactively.[3] See, Polygon Corporation v. Seattle, 90 Wn.2d 59, 64, 578 P.2d 1309 (1978) (holding SEPA established substantive authority, under its policies, for a city to deny a building permit to a 13-story, view-obscuring office building in downtown Seattle).
XLIV
This may mean the agricultural exemption was both a statutory and an administrative categorical exemption at the time Ecology issued the KPHD permit. As such, we undertake to analyze it as both.
XLV
As a statutory categorical exemption, it would be immune from the SEPA threshold requirements, regardless of their environmental impact. RICHARD R. SETTLE, THE WASHINGTON STATE ENVIRONMENTAL POLICY ACT: A LEGAL AND POLICY ANALYSIS § 12.01(1), at 12-5 (2002).
XLVI
As an administrative exemption, it would need to first meet the definition of a “proposal.” The water right applications under appeal here do not constitute a proposal, but rather are a series of proposals. They are separate proposals, and except for two, by separate entities. Only the two applications for the Lower Stemilt Irrigation project arguably may be considered one proposal. However, those applications are for 2.45 and 4.66 cfs, which together is less than the 50 cfs threshold. The Kennewick Irrigation District (“KID”) proposal for 82 cfs, was above that threshold. However, Ecology issued a SEPA determination of nonsignificance (“DNS”) for that application.
XLVII
Because the several applications are not “a proposal” under SEPA, the KPHD proposal and all the other proposals, except for the KID application are categorically exempt from the threshold requirement of SEPA. Under this analysis, it is unnecessary to consider whether the applications are physically or functionally related. Therefore, we grant summary judgment to Ecology on issue two.
XLVIII
The Tribes contend Ecology failed to adequately consider whether the issuance of these permits would conflict with existing rights. They argue, because these rights are not interruptible, if they do not meet the 1980 instream flow levels, they in effect are senior to approximately 330 existing water rights on the Columbia. This would render these rights not subject to those flows and not interruptible when the River flows go below the regulatory levels. They argue this is contrary to the water laws by making the 330 senior rights junior to the new users.
XLIX
The underlying issue is one of first impression. Ecology responds with three arguments. First, Ecology contends the Tribes do not have standing to raise the issue. Secondly, they contend the new users are required to mitigate for their withdrawals, therefore the agency has considered the impaired rights. Finally, they contend some of the senior users mitigated their withdrawals, therefore, their water diversions were not interrupted. The KID joins Ecology’s argument on the first and third points. Additionally they argue there is no conflict with senior users because they have always been subject to interruption.
L
Ecology
cites Center for Environmental Law &
Policy v. Ecology, PCHB 02-216 (2003) in support of its argument. There the Board concluded Center for
Environmental Law & Policy (“CELP”) had standing on all issues, except
one. We concluded CELP lacked standing
to assert the respondent Quad Cities’ application was processed out-of-line. Id. at
15. The Board relied on two factors:
first, CELP did not have a competing water right application; and second, CELP
was not asserting any established instream rights, which were prior to the Quad
Cities’ application. Id.
LI
The Tribes are not asserting they have a competing water right application. The right-in-line of a water application is not at issue here. The issue to which Ecology and the other parties object to the Tribes’ standing is whether Ecology’s issuance of the water right permits under appeal will impair existing water rights. The Tribes have standing to assert the 1980 minimum flows contained in WAC 173-563, which are established instream flow rights, in support of their contention Ecology’s issuance of the five water permits will impair existing water rights.
LII
There is no contention the Tribes, which have valuable treaty rights to fish on the Columbia-Snake River system, lack standing as parties aggrieved by Ecology’s decisions. They have clearly demonstrated a prima facie case of injury from those decisions. They are clearly within the zone of protection of the water laws of this state, including the Water Resources Act of 1971. Finally, the Board has jurisdiction to determine a remedy to the injury asserted. If there is impairment with existing rights, the Board may reverse Ecology’s decision, or establish conditions to ensure there is no impairment. Therefore, we conclude the Tribes do have standing to raise the impairment issue. We grant summary judgment to the Tribes on this issue.
LIII
Ecology’s next argument begs the underlying issue before the Board. The real issue here is whether the mitigation proposed by Ecology in its ROEs is sufficient mitigation for impairment and to protect the public interest. These are fact-specific issues, about which there is no agreement. Therefore summary judgment is inappropriate.
LIV
Ecology’s next argument also is not dispositive of this issue. The fact some of the senior users choose to mitigate their diversions, so as to avoid interruption, does not compel a conclusion there is no impairment. If there is impairment, the senior users should not have to elect to mitigate to avoid it; rather the new users permits should be conditioned to avoid the impairment. If Ecology can prove at trial the mitigation required of the new users is sufficient to avoid impairment of existing rights, then the Board would logically rule in its favor on that issue.
LV
Finally, KID’s argument about non-impairment, because the senior users have always been subject to interruption of their rights if the minimum flows are not met, does not answer the issue posed.
LVI
The Board is reluctant to limit standing under this state’s rigorous environmental statutes. We conclude the Tribes do have standing to raise the issue of impairment to existing rights. However, because there are genuine issues of material fact regarding the substance of impairment, we deny summary judgment to the Tribes on this issue, and reserve ruling on it pending a hearing on the merits.
LVII
Consideration of
Cumulative Impacts
The Tribes contend Ecology did not consider the cumulative effects of issuing the ROEs. In particular, the Tribes argue Ecology issued the five ROEs without incorporating “a cumulative effects analysis of the permits together with any present or further water withdrawals, inchoate water right, future development, climate change, or any other event or condition that is reasonably foreseeable.”
LVIII
Measuring cumulative effects is one means of measuring whether permit applications are consistent with the public interest. In the Matter of Appeals From Water Right Decisions of the Department of Ecology, Order on Motions for Summary Judgment at 29, PCHB 96-8, et seq., (1996), the Board concluded water rights are considered cumulatively, when tested to see if they will impair existing rights, including instream flows, and in considered water availability (in terms of existing rights). In these situations, the agency is essentially looking backwards at cumulative effects. In regard to the future, Ecology may look to the cumulative effect of similar future applications to determine the extent of harm to the environmental value at stake. “The fact that the application will cause an insignificant harm to fish habitat, for example is not decisive: rather the issue is whether the cumulative effects of the application and other similar future proposals will cause significant harm to fish habitat.” Id. at 29-30.
LIX
In Okanogan Highlands Alliance v. Ecology, PCHB 97-146, 97-182, 97-183, 97-186 & 99-019, at 19 (2000), the Board extended the breadth of cumulative impact to a consideration of future growth requiring additional municipal or domestic use.
LX
If a native fish stock is threatened or endangered, and there is a nexus between that condition and the flows of a river, then Ecology should arguably consider the cumulative impacts of any future withdrawals on the threatened or endangered status of that species.
LXI
Ecology contends it considered the cumulative impacts. It is unclear from the record whether Ecology revisited that consideration after it decided to grant the five water right applications, without directly conditioning them to the Target flows. Moreover, there is a basic factual dispute whether that consideration adequately addressed the important questions regarding native salmonid survival on the Columbia River. This issue, as well as the question whether Ecology’s proposed mitigation requirements contained in these permits are adequate, is sharply contested. Because there are genuine issues of material fact, the Board denies summary judgment to the Tribes on this issue and reserves these questions for trial.
LXII
We paraphrase this issue to conform to the Tribes’ argument in its briefs. The Tribes argue the KPHD had a water permit, which could not be changed, because it was an inchoate surface right, and because its approval would be detrimental to the public interest and existing rights. However, the premise of this argument is incorrect. The evidence does not indicate the KPHD had a water permit; rather it had an application, which was amended. Therefore, we never reach the issue of a water right change. Therefore, we deny summary judgment to the Tribes on this issue. This ruling, however, does not foreclose the Tribes from arguing under issues one and three, in the event of a trial, the KPHD’s and the other applications are inconsistent with the water laws and applicable regulations.
Based on the foregoing analysis, the Board issues the following:
ORDER
1. The Tribes’ motion for summary judgment on Ecology’s duty to consult with the Tribes is granted. Ecology’s decision on these five applications is vacated and the applications are remanded to Ecology, so the agency may engage in meaningful consultation and evaluation of them with the Tribes and other governmental entities, prior to rendering a final decision on them.
2. Ecology’s motion for summary judgment on issue two is granted.
3. Ecology’s motion for summary judgment that the Tribes do not have standing to contest the issue of the five water right applications on the ground of impairment with existing rights, is denied as a matter of law.
4. The Tribes’ motion for summary judgment on the ground the applications conflict with existing rights is denied because there are genuine issues of material fact as to the substance of impairment and the adequacy of mitigation, which are reserved for trial.
5. The Tribes’ motion for summary judgment on the ground Ecology did not consider cumulative impacts is denied because there are genuine issues of material fact relating to this issue.
6. The Tribes’ motion for summary judgment on whether Ecology failed to consider the public interest and injury to existing rights in granting the KPHD’s water right application, is denied because there are genuine issues of material fact relating to these issues.
DONE this 31st day of October 2003.
POLLUTION CONTROL HEARINGS BOARD
ROBERT V. JENSEN, presiding
WILLIAM H. LYNCH, Chair
KALEEN COTTINGHAM, Member
[1] Ecology asserts it considered the comments of the CRITF; however, there is no documentary evidence of such consideration in the record before the Board.
[2] This doctrine is discussed in Phillip M. Kannan, The Logical Outgrowth Doctrine in Rulemaking, 48 Admin. L. Rev. 213 (1996).
[3] SEPA declares, for example: “The legislature recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. RCW 43.21C.020(3). This policy statement, which is stronger than a similar statement in the federal counterpart of SEPA, the National Environmental Policy Act (“NEPA”), “indicates in the strongest possible terms the basic importance of environmental concerns to the people of the state.” Leschi v. Highway Comm’n, 84 Wn.2d 271, 279-80, 525 P.2d 774 (1974).