Postema v. Pollution Control Hearings Bd.

• Decision Date: 19 October 2000
• Docket Number: No. 67549-0.,67549-0.
• Citation: 11 P.3d 726,142 Wash.2d 68
• Parties: John POSTEMA, and Wallace L. Jorgensen, Appellants, v. POLLUTION CONTROL HEARINGS BOARD; James A. Tupper, Jr., Robert V. Jensen, and Richard C. Kelley, each in their official capacities as members of the Pollution Control Hearings Board; Department of Ecology; Tom Fitzsimmons, in his official Capacity as director of the Department of Ecology; and Tulalip Tribes of Washington, Respondents.
• Court: Washington Supreme Court

11 P.3d 726

142 Wash.2d 68

John POSTEMA, and Wallace L. Jorgensen, Appellants, v. POLLUTION CONTROL HEARINGS BOARD; James A. Tupper, Jr., Robert V. Jensen, and Richard C. Kelley, each in their official capacities as members of the Pollution Control Hearings Board; Department of Ecology; Tom Fitzsimmons, in his official Capacity as director of the Department of Ecology; and Tulalip Tribes of Washington, Respondents.

No. 67549-0.

Supreme Court of Washington, En Banc.

Argued March 1, 2000.

Decided October 19, 2000.

Jonson & Jonson, Richard Jonson, Seattle, Charles Lean, Olympia, Kameron Cayce, Renton, Richard Stephens, Charles Klinge, Bellevue, for Appellants.

Christine Gregoire, Atty. Gen., Jean Wilkinson, Deborah Mull, Asst. Atty. Gens., Olympia, John Arum, Mason Morisset, Robert Caldwell, Russell Busch, Gregory Hicks, Seattle, Karen Allston, Auburn, for Respondents.

MADSEN, J.

These two consolidated cases, one of which involves four consolidated cases, present numerous issues arising from the Department of Ecology's denial of applications for groundwater appropriation permits on the basis that the groundwater sources are in hydraulic continuity with surface water sources and further appropriations are foreclosed under the criteria of RCW 90.03.290. In the five individual cases before this court, the Pollution Control Hearings Board upheld Ecology's denial of the groundwater applications.

We conclude that hydraulic continuity between groundwater and a surface water source with unmet minimum flows or which is closed to further appropriation is not, in and of itself, a basis on which to deny an application to withdraw groundwater. However, despite the Board's erroneous legal determination that hydraulic continuity equates to impairment as a matter of law, the Board's findings in two of the cases before us nevertheless support the Board's ultimate decision that denial was proper.

These cases have proceeded, in both the administrative appeals and superior court review, in two parts. First, the Board addressed statewide threshold issues common to these and other appeals. Then, individual hearings were held in each case. The superior courts similarly addressed the threshold issues and the individual issues raised in each case. We affirm the decisions of the King County Superior Court and the Snohomish County Superior Court on the threshold issues, and affirm the courts' orders in Jorgensen v. Washington State Dep't. of Ecology, No. 97-2-17943-2 (King County Super. Ct. Sept. 14, 1998); Black River Quarry, Inc. v. Washington State Dep't of Ecology, No. 96-2-20613-0 (King County Super. Ct. Sept. 14, 1998); and Postema v. Washington State Dep't of Ecology, No. 97-2-00979-9 (Snohomish County Super. Ct. August 18, 1998). Our affirmance in Postema results in remand of that case to the Board. We reverse the orders in Covington Water Dist. v. Washington State Dep't of Ecology, No. 97-2-17946-7 (King County Super. Ct. Sept. 14, 1998) and Herzl Mem'l Park v. Washington State Dep't of Ecology, No. 97-2-17932-7 (King County Super. Ct. Sept. 14, 1998) and remand these cases to the Board.

We first address the threshold issues common to these cases, and then turn to each of the individual cases.

THRESHOLD ISSUES

Facts

In late 1995 and early 1996, the Department of Ecology (Ecology) issued approximately 600 water right decisions on applications to appropriate water in 12 watersheds, using batch processing. A little over half of these decisions were denials. Over 130 of the decisions were appealed to the Pollution Control Hearings Board (Board), which consolidated most of the appeals by Watershed Resource Inventory Area (WRIA). Many of these appeals involved denials of applications for groundwater appropriation permits on the basis that the groundwater is in hydraulic continuity with surface water sources which has minimum flows which are not met a substantial part of the time. In addition, Ecology denied applications for appropriation from groundwater in hydraulic continuity with surface water sources which are closed to further appropriation. Importantly, in the five cases here on appeal, Ecology gave several reasons for denial of applications, but its decision in each case was ultimately premised on hydraulic continuity.

A number of the applicants who appealed to the Board, the Coordinated Appellate Group (CAG), moved for and were granted a special hearing on threshold issues of statewide importance. In addition to CAG, Ecology, and intervenors Center for Environmental Law and Policy, the Muckleshoot Indian Tribe, and the Tulalip Tribes of Washington participated in the briefing and argument. The tribes' treaty rights are not directly at issue in these cases, but their treaty rights form the basis for their interest in these cases. The Board conducted the hearing, addressing 11 threshold issues of law, and on July 16, 1996, issued an order on motions for summary judgment and partial summary judgment. Thereafter, the Board held evidentiary hearings in the individual cases and issued orders in each case. A number of the applicants appealed the Board's decisions, and a number of the appeals were assigned to King County Superior Court Judge Alsdorf. Included in this group of appellants are all of the appellants in one of the two consolidated cases before the court, Jorgensen v. Pollution Control Hr'gs Bd., No. 67786-7 (which itself involves four cases consolidated by the Court of Appeals before transfer to this court). Appellant John Postema, the appellant in the second of the consolidated cases, Postema v. Pollution Control Hr'gs Bd., No. 67549-0, appealed to Snohomish County Superior Court. The superior courts affirmed the Board in most respects on the threshold issues. In the individual orders, the denials of groundwater appropriation permits in the four Jorgensen consolidated cases were upheld, while Postema prevailed on appeal and his case was remanded to the Board for a new hearing.

No attempt is made here to fully explain hydrogeological cycles and the science relating to impact of groundwater withdrawals. In general, water can move from groundwater to surface water, as well as from surface water to groundwater. How groundwater moves and where it moves to depend on several factors, including gravity, saturation of the ground materials, the hydraulic gradient, the level of the groundwater, and the type of material through which it moves. An aquifer is a geologic formation having materials with a higher rate of conductivity. An aquitard is composed of materials with lower conductivity. While at one time it was thought that aquitards could be impermeable, it is now known that an aquitard is never truly impermeable. Pumping well water can affect groundwater movement by lowering pressure and heads, by reducing groundwater storage, and by changing rates of groundwater recharge and discharge. The interrelationship can be quite complex and effects are sometimes difficult or impossible to measure in the field. Also, pumping groundwater may not have a discernable effect on surface water until considerable time has passed, depending upon the conditions.

Ecology's understanding of hydraulic continuity has altered over time, as has its use of methods to determine hydraulic continuity and the effect of groundwater withdrawals on surface waters. In 1996, the United States Geologic Services published a report by Morgan and Jones regarding three-dimensional computer modeling for the complex geologic and hydrogeologic basins of Puget Sound. The report concluded that the effects of pumping always reaches some of the surface water boundaries, and can do so over many square miles. Prior to issuance of this report, there was no such model. Ecology maintains that in a complex hydrologic system, use of a three-dimensional computer model is the best method for determining the effects groundwater withdrawals will have on surface water flow and senior surface water right holders. Ecology concluded that the Morgan and Jones model could be used in decisions on the Jorgensen appellants' applications because the climate, topography, and geology in the Green-Duwamish, Snohomish, and Cedar-Sammamish watersheds were similar.

Although there has been a factual dispute regarding the extent of the impact of groundwater withdrawals on surface waters in western Washington in general, especially given the rates of recharge resulting from precipitation, the arguments on the statewide threshold orders concern issues of law.

Analysis

The Board and the superior courts decided the statewide threshold issues as matters of law on summary judgment. Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

The Administrative Procedure Act, RCW 34.05, governs proceedings before the Pollution Control Hearings Board. Department of Ecology v. Theodoratus, 135 Wash.2d 582, 589, 957 P.2d 1241 (1998). This court sits in the same position as the superior court and reviews the Board's decision by applying the standards of review in RCW 34.05.570 directly to the agency record. Id. Agency action may be reversed where the agency has erroneously interpreted or applied the law, the agency's order is not supported by substantial evidence, or the agency's decision is arbitrary and capricious. RCW 34.05.570(3); Okanogan Wilderness League, Inc. v. Town of Twisp, 133 Wash.2d 769, 776, 947 P.2d 732 (1997).

Where construction of statutes is concerned, the error of law standard applies. Id.; RCW 34.05.570(3)(d). Under this standard, this court may substitute its interpretation of the law for the agency's. R.D. Merrill v. Pollution Control Hr'gs Bd., 137 Wash.2d 118, 142-43, 969 P.2d 458 (1999). Where a statute is within the agency's special expertise, the agency's interpretation is accorded great weight, provided that the statute is ambiguous. Theodoratus, 135 Wash.2d at 589, 957...