POLLUTION CONTROL HEARINGS BOARD
STATE OF WASHINGTON
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SNOQUALMIE INDIAN TRIBE, Appellant, v. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY; and PUGET SOUND ENERGY, Respondents. |
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PCHB NO. 03-156 ORDER GRANTING AND DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT |
On October 31, 2003, the Snoqualmie Indian Tribe (Snoqualmie Tribe) filed an appeal with the Pollution Control Hearings Board (Board), challenging the Department of Ecology’s (Ecology) issuance of Order No. DE 03 WQNR-5410, and accompanying 401 Water Quality Certification for the Re-licensing of the Snoqualmie Falls Hydroelectric Project (FERC No. 2493). Ecology issued the 401 Certification on September 24, 2003.
Puget Sound Energy (PSE) filed a Motion for Partial Summary Judgment (PSJ) seeking dismissal of Legal Issues Nos. 2, 5, 6, and 7 on March 15, 2004. Ecology and the Snoqualmie Tribe filed responses to this motion. PSE did not file a reply. Because of the need to issue an accelerated decision in this case, the presiding officer established a dispositive motion deadline a few days prior to the hearing date, and notified the parties the Board would rule upon any dispositive motions filed in this case subsequent to the hearing on the merits. As a result, the parties also put on evidence at the hearing related to the issues subject to the partial summary judgment motion.
The following legal issues from the Pre-Hearing Order are the subjects of Puget Sound Energy’s motion:
2. Does the Clean Water Act require the instream flow regime in a 401 certification to protect the Snoqualmie Tribe’s historic, spiritual, cultural, recreational, and aesthetic interest in Snoqualmie Falls, and if so, does the certification provide adequate protection?
5. Does the State of Washington, Department of Ecology’s antidegradation policy apply to the continuation of an existing beneficial use of water, when no enlargement of such beneficial use is proposed, and if so, do the conditions in the certification violate the state antidegradation policy?
6. Is Ecology required to consider cumulative effects of other development projects in the area, and if so, was the water quality certification conditioned to provide reasonable assurance that the affected portion of the Snoqualmie River will not violate state, federal, and other applicable water quality standards?
7. Does the Board have jurisdiction to enjoin Puget Sound Energy from participating in any other project, including flood mitigation that has the potential to materially impact the water quality of the Snoqualmie River in and around the Snoqualmie Falls Hydroelectric Project?
Pamela W. Krueger represented PSE. Joan Marchioro, Assistant Attorney General, represented Ecology. Andrea K. Rodgers, Western Environmental Law Center, and Ian Kanair represented the Snoqualmie Indian Tribe.
The members of the Pollution Control Hearings Board, William H. Lynch, presiding, Robert V. Jensen, and Bill Clarke received and reviewed the following pleadings in regard to the motions:
1. Puget Sound Energy's Motion for Partial Summary Judgment;
2. Declaration of Robert S. Barnes, including Exhibits A-N;
3. Appellant Snoqualmie Indian Tribe's Response to Puget Sound Energy's Motion for Partial Summary Judgment, including Exhibits A-K; and
4. Department of Ecology's Response to Puget Sound Energy's Motion for Partial Summary Judgment.
The Snoqualmie Falls Hydroelectric Project (project) is a run-of-river project located 3.5 miles downstream of the confluence of the North, Middle, and South Forks of the Snoqualmie River, at river mile 40.4. The project is located within the city limits of Snoqualmie, Washington. Construction of the hydroelectric project began in 1898. The project has a demonstrated peaking capacity at 44,000 kilowatts (kw).
The project has two different generating plants. Plant 1 consists of the original four 1,500 kw generators installed in 1898, as well as a 5,000 kw generator installed in 1908. The intakes for Plant 1 are located about 300 feet upstream of the Falls on the south bank of the river. Plant 2 is located approximately one-quarter mile downstream from the Falls. Plant 2 was constructed in 1910. A second unit was added to plant 2 in 1957. The initial project output form Plant 2 was 9,000 kw. The second unit at Plant 2 provided an additional generation capability of 20,250 kw. The intakes for Plant 2 are located about 200 feet upstream of the Falls on the north bank of the river.
The project includes Snoqualmie Falls Park, which is a two-acre parcel on
the north bank of the river just downstream of the Falls. The park has an observation deck, restrooms, and picnic facilities. An integrated recreational trail system is also part of the project. The lands within the project boundary total 259 acres. Puget Sound Energy holds fee title to 97 acres of this land, and lesser rights over 162 acres.
Prior to
license expiration in 1991, PSE filed an application with the Federal Energy
Regulatory Commission (FERC) to re-license the two powerhouse facilities at
Snoqualmie Falls. The license for the
project expired in 1993, and it has operated under an annual license by FERC
since that time. Ecology issued the 401
Certification on September 24, 2003.
Snoqualmie Falls and the area surrounding the Falls is a sacred site to the Snoqualmie Indian Tribe. They do not consider the Falls to be separate from themselves, but part of who they are. Each tribal member considers himself or herself to be a spiritual steward of the Falls and the surrounding area. The Snoqualmie Tribe was federally recognized in 1999. The Snoqualmie Tribe asserts the project operations do not adequately protect fisheries, and will result in levels of temperature, fecal coliform bacteria, and dissolved oxygen that will violate state water quality standards. The Snoqualmie Tribe also contends the 401 Certification violates the State's antidegradation policy because it fails to protect the Tribe's spiritual, cultural, and aesthetic interest in the Falls.
[1]
Summary judgment is a procedure available to avoid unnecessary trials on formal issues that cannot be factually supported and could not lead to, or result in, a favorable outcome to the opposing party. Jacobsen v. State, 89 Wn. 2d 104, 569 P. 2d 1152 (1977). The summary judgment procedure is designed to eliminate trial if only questions of law remain for resolution. Summary judgment is appropriate when the only controversy involves the meaning of statutes, and neither party contests the facts relevant to a legal determination. Rainier Nat’l Bank v. Security State Bank, 59 Wn. App. 161, 164 P. 2d 443 (1990) review denied, 117 Wn. 2d 1004 (1991).
[2]
The party moving for summary judgment must show there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Magula v. Benton Franklin Title Co., Inc., 131 Wn. 2d 171, 182, 930 P. 2d 307 (1997). A material fact in a summary judgment proceeding is one that will affect the outcome under the governing law. Eriks v. Denver, 118 Wn. 2d 451, 456, 824 P. 2d 1207 (1992). The trier of fact must construe the evidence and consider the material facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Weatherbee v. Gustafson, 64 Wash. App. 128 (1992), 822 P. 2d 1257. There must also be sufficient undisputed facts in the record to support a legal conclusion in favor of a party.
[3]
If the moving party has met its burden of producing factual evidence showing it is entitled to judgment as a matter of law, the burden shifts “to the nonmoving party to set forth facts showing there is a genuine issue of material fact.” Hash v. Children’s Orthopedic Hosp., 110 Wn.2d 912, 915, 757 P.2d 507 (1988). Summary judgment can also be granted to a non-moving party when the facts are not in dispute. Impecoven v. Dept. of Revenue, 120 Wn. 2d 357 (1992).
[4]
Issue #2 pertains to whether the instream flow regime of a 401 Certification must protect the Snoqualmie Tribe's historic, spiritual, cultural, recreational, and aesthetic interests in the Falls. It further asks whether this 401 Certification adequately protects these interests. PSE moved for Summary Judgment on this issue on the basis the 401 Certification adequately protects the interests of the Snoqualmie Tribe that are reflected in the federal Clean Water Act and in the state water quality standards. PSE believes it made good faith efforts to consider the Snoqualmie Tribe's interests, and consulted with the Tribe as if it were a federally recognized Tribe prior to 1999 throughout the FERC licensing process. PSE consulted with its members, provided information, and assessed its cultural interests when developing the Cultural Resources Mitigation and Management Plan. PSE Motion for PSJ, Attachment M.
[5]
More importantly, PSE states Ecology's determination in a 401 Certification is limited to whether the new activity will meet state water quality standards in conformity with the federal Clean Water Act, 33 U.S.C. Sec. 1251 et seq. Because federal and state water quality standards do not expressly recognize a separate Tribal historic, spiritual, cultural, recreational, and aesthetic interest, PSE contends the state's antidegradation policy is inapplicable to these separate interests. They assert the extent of protection for Tribal interests is the same as for all other persons and governments. As part of PSE’s argument, they contend there is no possible impairment to any existing beneficial use, except hydropower, and PSE has accepted Ecology’s balance between hydropower, fish and wildlife, and aesthetic flows in the 401 Certification.
[6]
Ecology agrees with PSE's Motion for PSJ that the 401 Certification properly balances fish and wildlife and aesthetic flows with project operations, but disagrees with PSE's assertions concerning hydropower is a beneficial use that must be protected under state water quality laws. Ecology notes hydroelectric power is a beneficial use for purposes of obtaining a water right. RCW 90.54.020(1). The water quality standards address both beneficial and “characteristic uses.” WAC Chapter 173-201A. Ecology recognizes water put to a beneficial use may need to be of a specific quality to be eligible for that usage, but the beneficial uses of water protected by the water quality laws relate to the quality of the water the various users of water require.
[7]
The Snoqualmie Tribe believes a separate beneficial use for Tribal historic, cultural, spiritual, and aesthetic interests should be recognized under state water quality laws. They also contend these Tribal interests in the Falls were not fully ascertained. The Tribe's cultural, spiritual, and aesthetic interests largely relate to increased flows of water over the Falls, and the mists created by the plunging Falls. They also state the Tribe's interest in the Falls is a question of material fact, which is not appropriate for summary judgment.
[8]
The Board notes the Snoqualmie Tribe's assertion regarding the existence of a separately recognized beneficial use for Tribal historic, spiritual, cultural, recreational, and aesthetic interests is a case of first impression for this Board. The Board has denied summary judgment on occasion in order to hear more discussion on a new issue of importance. In a recent shorelines case, the Shorelines Hearings Board stated:
This case poses substantial public policy issues, which deserve holding any decision in abeyance until the Board has the opportunity to hear all of the facts, and legal argument related to those facts. This has not been accomplished in this summary judgment motion.
Stafford v. Bainbridge Island, SHB 03-010, Order on Summary Judgment (August 13, 2003), p. 5.
The Board therefore agrees with the Snoqualmie Tribe that Issue #2 is not appropriate for summary judgment. Summary judgment on Issue #2 is denied. This issue is discussed in the Board's Final Findings of Fact, Conclusions of Law and Order.
[9]
PSE has requested summary judgment on Issue #5. This issue asks whether the state's antidegradation policy can apply to the continuation of an existing beneficial use that is not enlarged, and if so, whether the conditions in the 401 Certification violate the state antidegradation policy. The state's antidegradation policy provides "existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses shall be allowed." WAC 173-201A-070(1). The Snoqualmie Tribe contends the proposed project has the effect of degrading the water in the Snoqualmie River, which negatively impacts other beneficial uses in the river.
[10]
The Board does not agree with PSE's suggestion the state's antidegradation policy would only apply to an existing beneficial use if that use is enlarged. The 401 Certification itself recognizes the temperature TMDL and associated implementation plan for the Snoqualmie River being developed by Ecology will supersede the conditions of the Order, where it is more protective. Exhibit RE-12, p. 1. Furthermore, the listing of fish species under the federal Endangered Species Act may require adjustments to the operation of a previously licensed project. Finally, it is also possible the beneficial uses may change in an area since a project was last licensed. It is clear the state's antidegradation policy applies to this project. It is a question of material fact, however, whether the conditions in the 401 Certification violate the state's antidegradation policy. Summary judgment is granted for the Snoqualmie Tribe on the portion of Issue #5 as to whether the state's antidegradation policy applies to an existing beneficial use, which is not enlarged. The portion of Issue #5 relating to whether the conditions in the 401 Certification violate the state's antidegradation policy is a question of material fact and is discussed in the Board's Final Findings of Fact, Conclusions of Law and Order.
[11]
PSE asks for summary judgment on Issue
#6. This issue pertains to whether
Ecology is required to consider the cumulative effects of other development in
the area, and if so, whether the 401 Certification provides reasonable
assurances water quality standards in the affected portion of the Snoqualmie
River will not be violated.
[12]
PSE also maintains any
"cumulative impacts" of the project were reviewed as part of the
National Environmental Policy Act (NEPA) and State Environmental Policy Act
(SEPA) environmental review process.
Exhibit RP-2, Section 4.2.14, FERC Final Environmental Impact Statement
(FEIS). PSE also asserts because the
Tribe did not allege any violations of SEPA in this appeal, any such argument
is waived under WAC 371-08-435(2). PSE
Motion for PSJ, p, 20. PSE is correct
that the Tribe did not raise any SEPA issue.
Therefore, the Board grants summary judgment to Puget Sound Energy on
the SEPA issue included within issue #6.
[13]
As to remaining cumulative effects claims, based on the record before the Board on summary judgment, the Board finds material facts in dispute regarding the specific “cumulative effects” and “other development” related to the project. Therefore, summary judgment on the remainder of this issue is denied, and the Board will rule on the cumulative effects issue as part of its decision on the merits.
[14]
The final issue raised by PSE in its Motion for PSJ is Issue #7. This issue pertains to whether the Board has jurisdiction to enjoin PSE from participating in any other project, including flood mitigation, which has the potential to materially impact the water quality of the Snoqualmie River in and around the Falls project. PSE notes the Snoqualmie Tribe previously withdrew its appeal before the Board of a flood damage reduction project in the area. PCHB No. 02-160.
[15]
The Snoqualmie Tribe assumes the flood mitigation project is a component of the Snoqualmie Falls 401 Certification because it is mentioned in the FEIS relevant to the Falls
re-licensure project. See Exhibit RP-2, Section 3.2.3. Testimony at the hearing did indicate the flood control project involves some bank modification to the south bank above the Falls. Robert Wright Testimony. These are insufficient, however, to bring that separate project before the Board. The only project currently before the Board is the 401 Certification of the Snoqualmie Falls hydroelectric project. The flood mitigation project underwent its own separate review, and it is inappropriate to revisit that project here. The Board rejects the Tribe's invitation to issue a stay of any work on the separate flood mitigation project.
[16]
Based on the foregoing analysis, the Board grants and denies summary judgment as follows:
1. The Board GRANTS Summary Judgment to Puget Sound Energy on Issue #7. The Board also GRANTS Summary Judgment to Puget Sound Energy on Issue #6 with respect to the SEPA issue included within this issue. The portion of Issue #6 pertaining to the remaining cumulative effects claim is discussed in the Final Findings of Fact, Conclusions of Law and Order.
2. The Board GRANTS Summary Judgment to the Snoqualmie Tribe on the portion of Issue #5, relating to whether the state's antidegradation policy applies to existing projects which do not enlarge the beneficial use. The portion of Issue #5 relating to whether the state antidegradation policy is violated by the 401 Certification is discussed in the Final Findings of Fact, Conclusions of Law and Order.
3. The Board DENIES Summary Judgment on Issue #2 and discusses this issue in the Final Findings of Fact, Conclusions of Law and Order.
DONE this 7th day of April 2004.
POLLUTION CONTROL HEARINGS BOARD
WILLIAM H. LYNCH, Presiding