Ctr. for Envtl. Law & Policy v. State

• Decision Date: 06 August 2020
• Docket Number: No. 97684-8,97684-8
• Citation: 196 Wash.2d 17,468 P.3d 1064
• Court: Washington Supreme Court
• Parties: CENTER FOR ENVIRONMENTAL LAW AND POLICY ; American Whitewater; and Sierra Club, Respondents, v. State of Washington, DEPARTMENT OF ECOLOGY, and Jay Inslee, Petitioners.

196 Wash.2d 17

468 P.3d 1064

CENTER FOR ENVIRONMENTAL LAW AND POLICY ; American Whitewater; and Sierra Club, Respondents,

v.State of Washington, DEPARTMENT OF ECOLOGY, and Jay Inslee, Petitioners.

No. 97684-8

Supreme Court of Washington.

Argued May 14, 2020

Filed August 6, 2020

Clifford Hiroshi Kato, Office of the Attorney General, Stephen H. North, Attorney General of Washington, Ecology Division A.G. Office, Attorney at Law, Olympia, WA, for Petitioners.

Daniel James Von Seggern, Center For Environmental Law and Policy, Andrew McAleer Hawley, Attorney at Law, Seattle, WA, Theodore Vanderkemp Howard, Attorney at Law, Oak Harbor, WA, for Respondents.

Allen T. Miller, Lukins & Annis, Spokane, WA, for Amicus Curiae on behalf of Washington Kayak Club and Paddle Trails Canoe Club.

MADSEN, J.

¶1 This case concerns the authority of the Department of Ecology to set minimum instream flows for the rivers and streams in this state and the parameters of that authority under RCW 90.22.010 and RCW 90.54.020(3)(a) (discussed below). At issue is whether Ecology properly adopted a rule, WAC 173-557-050, setting a summertime minimum instream flow rate for the Spokane River at 850 cfs (cubic feet per second) from June 16 to September 30. We uphold that rule, determining that the challengers¹ of the agency rule fail to carry their burden to show the rule's invalidity. We reverse the Court of Appeals’ decision, which reversed the trial court's dismissal of the challengers’ suit.

I. FACTS

A. The Spokane River's water challenges

¶2 The Spokane River originates at the outlet of Coeur d'Alene Lake in Idaho and flows west for approximately 111 miles to the Columbia River in eastern Washington. The Spokane River and the Spokane Valley-Rathdrum Prairie Aquifer are located in eastern Washington and encompass portions of the cities of Spokane, Spokane Valley, Liberty Lake, and Millwood. The river and the aquifer are shared resources between Idaho and Washington.

¶3 Flows in the river are declining due to increased groundwater use from the aquifer. Ecology thus ceased issuing new groundwater rights from the aquifer in the 1990s. The river is central to both the area's local economy and its community.

B. Hydroelectric dams shape river flows

¶4 Avista Corporation operates five hydroelectric projects located on the Spokane River in northern Idaho and eastern Washington. The uppermost project on the river, the Post Falls development, consists of three dams on three channels with natural islands connecting the structures. The development impounds nine miles of the Spokane River to the outlet of Coeur d'Alene Lake.

¶5 Avista uses its Post Falls facility to regulate flows in the Spokane River for six months a year starting in summer, after spring runoff flows have peaked and subsided. Avista regulates river flows in accordance with minimum flow requirements in its federal license, which incorporates other considerations of lake level; downstream flow considerations; energy demands; flood control; and upstream recreational, residential, and commercial interests. Throughout the summer recreation season, Coeur d'Alene Lake is maintained at a higher level, but after Labor Day, Avista begins to release stored water at Post Falls, resulting in a gradual drawdown in lake levels. The timing of the drawdown varies annually based on flow conditions, weather forecasts, and energy demands.

¶6 Avista, as a condition of its federal license to operate its projects, is required to implement measures to protect and enhance fish, wildlife, water quality, recreation, cultural, and aesthetic resources at the project. The license requires Avista to operate the Monroe Street and Upper Falls dams to provide minimum flows of 850 cfs from June 16 to September 30 each year. The flows are intended to enhance aquatic habitat for rainbow trout and mountain whitefish in the Spokane River. Avista's federal license also requires Avista to release flows from Post Falls dam ranging from 3,300 cfs to 5,500 cfs for whitewater boating. Flows that serve the recreational community occur every year on the Spokane River, but the timing and duration of those recreational flows varies.

¶7 To change the actual flow in the river to better suit a particular recreational use would require seeking changes in Avista's license because it has control over water storage and releases as provided in its federal license. Ecology's rule WAC 173-557-050 does not require control or release of water from storage. An instream flow rule does establish regulatory flows with a priority date as to other water rights, meaning new uses are subject to the prior established instream flow rules.² WAC 173-557-050 does not put water in the river or affect existing water rights. Ecology personnel gave a presentation at the public hearing for the proposed instream minimum flow rule in Spokane in October 2014, explaining that Avista's federal license controls minimum releases to the river and that Ecology's instream flow rule addresses only new junior water uses and when they are interruptible to protect the instream flow. The presentation also noted that Ecology's minimum instream flow rule does not change the hydrograph.³

C. Ecology sets minimum river flows via rule making

¶8 Ecology began working with watershed planning groups in 1998 to develop instream flow protection for the Spokane River. The planning unit failed to reach consensus on instream flow levels during its planning process. Because no consensus could be reached, Ecology chose to use science-based fish studies as a baseline to develop the instream flow rule.⁴

¶9 Ecology formally commenced rule making in January 2014. Using a deliberative process, Ecology ultimately set summer minimum flows at 850 cfs by relying on science-based fish studies that protected fish as a baseline and that also served to protect other instream values, including recreation, navigation, and aesthetics.

¶10 In 2012, Washington Department of Fish and Wildlife instream flow biologist Dr. Hal Beecher wrote his flow recommendations for the Spokane River, which Ecology ultimately adopted. In his summary, Dr. Beecher wrote that the recommended minimum instream flow for the Spokane River is 850 cfs from June 16 to September 30. Dr. Beecher notes that "[i]nstream flows should address what the river needs to preserve its values and resources and ecological functions."

Admin. Record (AR) at 3831. He notes how flows were developed in cooperation with Ecology with an emphasis on fish and based on the results of four scientific studies:

In developing instream flow recommendations for the lower Spokane River, the Washington Department of Fish and Wildlife ..., in cooperation with Department of Ecology (Ecology), has emphasized rainbow trout and mountain whitefish. ...

Results of several studies (EES Consulting 2007, NHC and HD 2004, Parametrix 2003a,b, Addley and Peterson 2011) provide information on trout and whitefish habitat at different flows and different seasons in the lower Spokane River.

AR at 3832.⁵ Based on these studies, Dr. Beecher ultimately concluded that "a flow of 850 cfs should be protected." AR at 3834; see also AR at 7753 (Beecher recommendation of 850 cfs flow rate at Spokane gage for June 16 to September 30 period); see also AR at 3831 (Beecher summary stating the same recommendation).

¶11 During the rule adoption period, Ecology received many comments regarding its decision to set summer flows at 850 cfs. Ecology responded:

Ecology does not agree that the instream flow levels adopted in this rule are too low to protect instream resources in the Spokane River. Ecology believes the instream flows in this rule, based as they are on four independent fish studies, are science-based. The flows have been vetted by top scientists, staff, and management of all concerned state agencies. The instream flows have been reviewed and analyzed by all local Water Resource Inventory Area Watershed planning groups. Since these flows were first proposed to the planning unit, no entity has emerged with scientific information to indicate these flows are not appropriate . It is our opinion these flows are the best flows available to protect the instream resources of the Spokane River. They are flows necessary for stream health, ecological function, and preservation of other instream resources including scenic, aesthetic, and navigational values .

AR at 3031 (emphasis added).

¶12 Ecology also responded to concerns about recreation, aesthetics, and navigational values, noting that it considered these issues at multiple stages throughout the rule making process and that the subjects were addressed in detail during Avista's Federal Energy Regulatory Commission (FERC) relicensing process for their hydroelectric facilities.

¶13 The subject of recreational, aesthetic, and navigational flows was also addressed during the watershed planning process and during the comment period on preliminary drafts of the minimum instream flow rate rule. Ecology noted that it had reviewed the whitewater paddling study conducted during Avista's relicensing process; listened to many river users; and reviewed anecdotal observations, opinions, and photos submitted by whitewater enthusiasts and others. Ecology then explained in detail why it chose not to set flows based on recreational needs and why not setting flows based on those needs is not the same as not considering them:

They [ (recreational flows) ] were considered by the department and rejected as the primary basis for establishing instream flows. Ecology chose to use science-based fish studies to develop the instream flow values for the rule when the Watershed Planning unit failed to reach consensus about instream flow values .... While [the flows] are based on fish habitat studies, the instream flow levels established in [the] rule will preserve wildlife, scenic, aesthetic, and other environmental values in the Spokane River, in accordance with RCW 90.54.020.

AR at 2985.

¶14...