PUBLIC UTILITY DIST. v. STATE, DEPT. OF ECOLOGY
| Decision Date | 18 July 2002 |
| Docket Number | No. 70372-8.,70372-8. |
| Citation | 51 P.3d 744,146 Wash.2d 778 |
| Parties | PUBLIC UTILITY DISTRICT NO. 1, OF PEND OREILLE COUNTY, Respondent, v. STATE of Washington, DEPARTMENT OF ECOLOGY, Petitioner, and Center for Environmental Law and Policy, Intervenor/Respondent. |
| Court | Washington Supreme Court |
Christine Gregoire, Attorney General, Alan Reichman, Asst., Olympia, Deborah Mull, Asst., Lacey, John Arum, Seattle, for Petitioner.
Jerry Boyd, Spokane, for Respondent.
Sarah Mack, Seattle, Amicus Curiae on Behalf of Washington Public Utility Districts.
Adam Gravley, Catherine Drews, Seattle, Amicus Curiae on Behalf of Washington Water Utility Council.
Joseph Mentor, William Clarke, Seattle, Amicus Curiae on Behalf of Washington Association of Realtors, Washington Building Industry, and Washington State Hydropower Issue Group.
Rachael Paschal Osborn, Spokane, Amicus Curiae on Behalf of Lands Council, Pend Oreille Enviro. Team, River Defenders and Spokane Canoe & Kayak Club.
Bradford Axel, Katherine Ransel, Seattle, Donald Ayer, Robin Juni, Matthew Duchesne, Washington DC, Amicus Curiae on Behalf of American Rivers.
This case raises the question whether the Department of Ecology has authority to condition a water quality certification under the Clean Water Act (33 U.S.C. §§ 1251-1387) on maintenance of minimum instream flows, where such conditions affect existing water rights. The case also involves issues concerning RCW 90.03.380, the surface water statute governing changes in and transfers of water rights, and issues of abandonment and statutory forfeiture of water rights. We conclude that the Department of Ecology has authority to impose bypass flow conditions in a water quality certification regardless of whether the applicant has existing water rights that may be affected. We also conclude that when acting on change applications under RCW 90.03.380, Ecology may not deny an application based upon public interest considerations, and that the change statute does not apply to inchoate water rights. In addition, we conclude that the water rights at issue were neither abandoned nor forfeited under chapter 90.14 RCW.
In November 1994, Public Utility District No. 1 of Pend Oreille County (the District) applied to the Federal Energy Regulatory Commission to amend its hydroelectric license, issued under the Federal Power Act (16 U.S.C. §§ 791-839), in order to develop the Sullivan Creek Hydroelectric Project. The District plans to release water from Sullivan Lake to Mill Pond Reservoir. Water from Mill Pond will then be diverted for approximately three miles by pipeline following an existing flume right of way to a powerhouse located near Metaline Falls. The water will then be discharged back into Sullivan Creek at the powerhouse. The bypass reach of Sullivan Creek from Mill Pond to the powerhouse is about three and a quarter miles.
The District holds water rights in dispute in this case of 550 cubic feet per second (cfs) on Sullivan Creek, Harvey Creek, and Sullivan Lake, which include the right to store, divert, and use water to generate hydroelectric power. A right of 110 cfs has a priority date of June 26, 1907, and includes diversion and storage rights. The remaining 440 cfs is a permitted, unperfected right that has a priority date of June 3, 1980. It is subject to a minimum instream flow of 10 cfs in Sullivan Creek. The 1980 right is supplementary to the 1907 right.
Before 1956, the Portland Cement Company and Lehigh Portland Cement Company owned the Sullivan Lake Hydroelectric Project, which included the Sullivan Lake Dam and reservoir. The reservoir was used to store water for later release to generate power. The project included the Mill Pond dam and diversion works, which diverted water into a wooden flume and canal system to a forebay, from which the water was transported to the Sullivan Creek powerhouse. The project was used to generate power from 1907 to 1956.
In 1956, a portion of the flume collapsed. Also in 1956, the District agreed to purchase the project together with the 1907 water right, provided a license was obtained under the Federal Power Act. In 1958, the Federal Power Commission granted a 50-year nongenerating license that allowed the District to use its storage right for the storage and release of water for power generation by others. The nongenerating license included language that indicated the Sullivan Creek project had been abandoned, but contemplated that generation of hydroelectric power utilizing the Sullivan Creek Project would be reestablished when feasible. In 1959, the District requested and obtained an amendment to the license, in order to clarify that it intended to preserve its water right for use in power production.
Following its purchase, the District took no action to maintain the flume or intake structure that had been used to divert water for power generation. The District decommissioned the project, removing the turbines and filling the turbine pits with rock and gravel.
The District engaged in feasibility studies beginning in 1961, which led to possible new projects involving construction of a new dam. In 1965, the District applied for a new federal license for a hydroelectric project. Maps accompanying the application indicated that the wooden flume had collapsed. In 1964, the District applied for and obtained additional water rights and a change in point of diversion to support the power project under this application. Thus, a change in point of diversion of the 1907 right was approved, with the new diversion point located just south of the confluence of Sullivan Creek and Outlook Creek, at an anticipated new reservoir site. In 1966, Ecology approved a reservoir permit for the proposed project. By 1969, the District concluded that the 1965 development plan was not economically feasible, and abandoned that project. In 1978, the District had a short-term contract to sell power from a proposed new Sullivan Creek project, including an expanded reservoir. After the other contracting party withdrew, this project was put on hold. No other decision to proceed with a hydroelectric project was made until the District filed its 1994 application to amend its license in order to generate power. The District did, however, engage in a number of engineering studies in the meantime, and, as indicated, in 1980 it applied for a supplementary water right for future development of the Sullivan Creek project. The application was granted in 1986.
The District paid all annual state hydroelectric licensing fees in connection with its 1907 water right. It also paid fees in connection with the 1980 water right, although for a period of years it failed to pay the fees for most of the 440 cfs right, due to a clerical error. In 1998, it informed Ecology about the missing fees, and paid the late fees.
In 1992, the District proposed to reestablish power generation. The new Sullivan Creek Project would use the same configuration for the project as the original project, but would be bigger than the original. As noted, in 1994 the District filed the application with the Federal Energy Regulatory Commission to amend its federal license to allow power generation. Because the project requires a federal license, on October 30, 1996, the District filed an application for a state water quality certification with the Department of Ecology (Ecology), as required under the Clean Water Act. On October 28, 1997, Ecology issued an order certifying that the District's project complies with the act and state law, but conditioned the certification on maintenance of additional specified instream flows in Sullivan Creek.1 Ecology imposed these conditions to meet state and federal clean water standards prohibiting degradation of state waters that would interfere with or injure existing beneficial uses. Sullivan Creek provides habitat for several fish species, including rainbow, brown, and cutthroat trout, as well as serving as a significant recreational and aesthetic resource.
In order to carry out its new proposed project, on June 7, 1993, the District filed two applications to change the points of diversion of the 1907 and 1980 rights to the original diversion point of the 1907 water right, about 7,500 feet downstream. On March 17, 1998, Ecology issued orders denying the applications. As to the 1907 right, Ecology denied the change application on the bases that the District had abandoned the right based upon nonuse of the water since 1956, and that approval of the change would be detrimental to the public interest. As to the 1980 right, Ecology denied the change application on the bases that a change may not be granted where inchoate water rights are concerned, that the right had been relinquished due to failure to pay annual hydroelectric licensing fees, and that approval would be contrary to the public interest.
The District appealed from all three orders to the Pollution Control Hearings Board (Board). The Center for Environmental law and Policy intervened in the appeal of the water quality certification. The Board consolidated the appeals. The District and Ecology then filed cross motions for summary judgment. On October 15, 1998, the Board issued an amended summary judgment order. The Board granted summary judgment in favor of Ecology, ruling, in relevant part, that (1) Ecology has authority to condition a water quality certification under § 401 on maintenance of specified instream flows where the applicant has existing water rights; (2) RCW 90.03.380, the statute relating to changes and transfers of surface water rights, does not apply to inchoate rights, and thus Ecology's denial of a change in point of diversion of water under the 1980 right was correct; (3) Ecology has authority to consider the public interest when acting on an application for a change in point of diversion under RCW 90.03.380; (4) and Ecology and the Board have authority to...
To continue reading
Request your trial
-
Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd.
...is not supported by substantial evidence, or the order is arbitrary or capricious. RCW 34.05. 570(3); Pub. Util. Dist. No. 1 v. Dep't of Ecology, 146 Wash.2d 778, 790, 51 P.3d 744 (2002). The Board's legal conclusions are reviewed de novo, giving deference to the agency's interpretation of ......
-
Port of Seattle v. PCHB
...This court reviews PCHB orders under the Washington Administrative Procedure Act (WAPA). Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of Ecology, 146 Wash.2d 778, 789-90, 51 P.3d 744 (2002); see also RCW 34.05.514(3), . 518(1), (3)(a). Our review of the facts is confined to the re......
-
Bostain v. Food Exp., Inc.
...Port of Seattle v. Pollution Control Hr'g's Bd., 151 Wash.2d 568, 587, 90 P.3d 659 (2004); Pub. Util. Dist. No. 1 of Pend Oreille County v. Dep't of Ecology, 146 Wash.2d 778, 790, 51 P.3d 744 (2002); Seattle Bldg. & Constr. Trades Council v. Apprenticeship & Training Council, 129 Wash.2d 78......
-
Cornelius v. Wash. Dep't of Ecology
...special expertise, the agency's interpretation of the statute is given great weight. Pub. Utility Dist. No. 1 of Pend Oreille County v. Dep't. of Ecology, 146 Wash.2d 778, 790, 51 P.3d 744 (2002) ; Postema, 142 Wash.2d at 77, 11 P.3d 726 ; Theodoratus, 135 Wash.2d at 589, 957 P.2d 1241. At ......
-
Table of Cases
...P.3d 65 (2014), review denied, 183 Wn.2d 1015 (2015): 19.5(3) PUD No. 1 of Pend Oreille Cnty. v. State Dep't of Ecology, 146 Wn.2d 778, 51 P.3d 744 (2002): 11.5(2)(a), 11.5(2)(b) Pugel v. Monheimer, 83 Wn. App. 688, 922 P.2d 1377 (1996), review denied, 131 Wn.2d 1024 (1997): 19.5(4) Puget M......
-
Table of Cases
...Klickitat Cnty. v. Int'l Ins. Co., 124 Wn.2d 789, 881 P.2d 1020 (1994): 17.6(4) Pub. Util. Dist. No. 1 v. Dep't of Ecology, 146 Wn.2d 778, 51 P.3d 744 (2002): 21.11(1)(b) Pub. Util. Dist. No. 1 v. Pub. Emp't Rel. Comm'n, 110 Wn.2d 114, 750 P.2d 1240 (1988): 21.8(3) Pudmaroff v. Allen, 138 W......
-
§ 21.11 Standards of Judicial Review
...interpretation of a nonambiguous statute the agency administers. Pub. Utility Dist. No. 1 v. Dep't of Ecology, 146 Wn.2d 778, 790, 51 P.3d 744 (2002); King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). Courts do not defer to an agency's inter......
-
Chapter 2 THE PURPOSEFUL TENSION WITHIN THE DOCTRINE OF BENEFICIAL USE
...Inc. v. Town of Twisp, 947 P.2d 732, 738-39 (Wash. 1997). But see Pub. Util. Dist. No. 1 of Pend Oreille Cty. v. State, Dep't of Ecology, 51 P.3d 744 (Wash. 2002) (no intent to abandon even after decades of nonuse where the District continued to engage in studies on how to use water for hyd......