Stempel v. Department of Water Resources
| Decision Date | 29 March 1973 |
| Docket Number | No. 42448,42448 |
| Citation | 82 Wn.2d 109,508 P.2d 166 |
| Parties | , 3 Envtl. L. Rep. 20,685 Fritz STEMPEL and Howard H. Luiten, Respondents, v. DEPARTMENT OF WATER RESOURCES, State of Washington, Appellant, Loon Lake Park Company, Respondent. |
| Court | Washington Supreme Court |
Slade Gorton, Atty. Gen., Charles B. Roe, Jr., Charles W. Lean, Asst. Attys. Gen., Olympia, for appellant.
McNally & Stewart, Fred L. Stewart, Colville, Walter L. Peterson, Jr., Spokane, for respondents.
The Department of Water Resources of the State of Washington appeals from a superior court decree which remands for further investigation a department decision approving an application for water appropriation. This department is now replaced by the Department of Ecology as of July 1, 1970. RCW 43.21A.
The two basic issues raised by this appeal are: (1) did the superior court exceed the scope of review permitted by the Administrative Procedure Act (RCW 34.04.130(6)), and (2) what is the department currently obligated to consider when acting upon a water appropriation application?
We find that certain portions of the superior court remand order exceed the permissible scope of review under the Administrative Procedure Act and these are reversed. In those portions of the remand order we find to be valid, we conclude the department action was not finalized prior to the effective dates of the State Environmental Policy Act of 1971, RCW 43.21C, and the Water Resources Act of 1971, RCW 90.54, and that the department is obligated to incorporate certain provisions of these acts into its determinations in this case.
On April 10, 1967, an appropriation application, pursuant to RCW 90.03.250, was filed by Loon Lake Park Company, the intervenor-respondent. The application was for 0.7 cubic feet per second of water to be taken from Loon Lake which would be provided to 143 lots located in the vicinity of Loon Lake for domestic water use. Loon Lake is 28 miles north of Spokane, is 2.6 miles long, covers 1,118 acres, and has a maximum depth of 104 feet. About 20 of the lots owned by the company abut the lake. All the lots are presently able to secure water from three nearby wells, which Loon Lake Park Company alleges provide unsatisfactory water because of its high iron content.
When notice of the application was published, pursuant to RCW 90.03.280, objections were received by the department from 36 persons, including the respondents Stempel and Luiten. The protesters were concerned with numerous pollution and health problems they foresaw as imminent if further water was withdrawn from the lake. On February 15, 1968, a public meeting was held on the application. On April 30, 1968, an order, based on the meeting and the department's investigations (conducted pursuant to RCW 90.03.290), was entered approving the application. Soon thereafter, the respondent protesters appealed the order and requested a hearing on the matter. The water right permit to the Loon Lake Park Company was stayed and a hearing officer was appointed to hear the contested case. RCW 34.04. Hearings were held on July 30 and 31, 1968, and resulted in an affirmance of the department's actions. Respondents Stempel and Luiten then sought, on May 27, 1969, judicial review of the department's otherwise final order entered on May 2, 1969. RCW 34.04.130.
Review by the Superior Court for Stevens County was based on the record, as required under RCW 34.04.130(5), the legal briefs, and the oral argument of counsel. A remand decree was entered on November 4, 1970, from which the department appeals.
The court entered several findings of fact which varied from those entered by the department. It found that the lake should be preserved at its highest level; that water was available from existing wells and there was no showing the high iron content well water could not be treated; that the department had the duty to guard against any act contributing to pollution of the state's waters; and seemingly found that a previous superior court decree had established a fixed maximum and minimum level for the lake.
The court, in a remand order, also required the department to obtain further evidence on the following seven items:
1. The frequency of use and number of people using Loon Lake for recreational purposes, including the amount of business done by resorts located on this Lake serving the public in a recreational capacity.
2. The amount of water presently being used from the Lake by persons having developed littoral properties.
3. The amount of front feet of presently undeveloped littoral lands, together with a computation of the demands necessary to be considered for future use by the littoral property.
4. The feasibility of Respondent's rendering the water from its own wells usable.
5. The amount of average outflow from the Lake computed without reference to any extractions for the usage presently being made from the water of the Lake, whether for human consumption, irrigation, or other usages.
6. Evaporation records properly applicable to this Lake.
7. The feasibility and cost of a suitable sewage system and treatment plant for the properties intended to be served by Respondent, and the feasibility and cost of a suitable sewage and treatment plan for all of the improved properties surrounding Loon Lake.
The department urges the superior court exceeded its scope of review in remanding the matter to them for further investigation, and also, that the department is not required to investigate the breadth of factors ordered in the remand decree when considering an appropriation application.
Standards for judicial review of administrative decisions in contested cases are presented in the Administrative Procedure Act, codified in RCW 34.04. The particular statutory provision relevant here permits affirmance of agency decisions or remanding of them for further proceedings. RCW 34.04.130(6). 1 A remand for additional evidence is proper, if needed, even where the administrative decision is not in error. State ex rel. Gunstone v. State Highway Comm'n, 72 Wash.2d 673, 434 P.2d 734 (1967). However, if a determination by the agency is to be reversed, it must be found to be either 'clearly erroneous' or 'arbitrary or capricious', RCW 34.04.130(6)(e) and (f).
A finding can be held to be 'clearly erroneous' if, despite supporting evidence, the reviewing court on the record can firmly conclude 'a mistake has been committed.' Ancheta v. Daly, 77 Wash.2d 255, 260, 461 P.2d 531 (1969). A finding can be held to be 'arbitrary or capricious' if there is no support for it in the record and it is therefore a 'wilful and unreasoning action, in disregard of facts and circumstances.' Northern Pac. Transport Co. v. State Util. & Transp. Comm'n, 69 Wash.2d 472, 479, 418 P.2d 735, 739 (1966).
The department alleges the reviewing court's findings of fact Nos. 8 and 9 contradict without justification the department's fifth finding. 2 We agree only as to the court's finding of fact No. 8. We conclude that finding of fact No. 9, relating to a general 'public interest' concern, does not contradict the agency's finding of fact No. 5, which covers a different concern--the impact of lake water withdrawal on the quality of the lake water.
Department finding of fact No. 5 is supported by the testimony of health department experts from Spokane and Stevens Counties, and their testimony that the proposed withdrawal of the lake's water would have no effect on the lake's water quality was unimpeached. The court's review was made solely on the record, with no new testimony received, and there is no basis on which the trial court could conclude that the agency's finding was 'arbitrary or capricious.' The trial court's substitution of its judgment for that of the agency's, where there is no support in the record, is invalid. Ancheta v. Daly, Supra 77 Wash.2d at 260, 461 P.2d 531.
There is, as well, no basis by which a court would be left with 'the definite and firm conviction that a mistake has been committed.' Ancheta v. Daly, Supra at 259--260, 461 P.2d at 534. The uncontradicted testimony from the entire record is that the proposed withdrawal would not lower the lake more than one-half inch. Agency finding of fact No. 5 cannot be said to be 'clearly erroneous.'
A pretrial order, entered pursuant to CR 16(b), 3 listed four contentions by the respondents. The order, when entered, controls the subsequent course of the action unless modified at trial to prevent manifest injustice. No such showing was made, and there was no modification of the order. The question of the right of littoral owners, existing or prospective, was not one of the contentions. Paragraphs 2 and 3 of the remand decree, seeking further department investigation on the present and future consumptive use of those persons with water rights on the lake, is improper as it is beyond the scope of the pretrial order.
At the time of the initiation of the application in 1967, the requirements governing the department's rulings upon such applications were contained in RCW 90.03.290, which is part of the original 1917 water code, unamended since 1947. The statute requires the department to make essentially four determinations prior to the issuance of a water use permit: (1) what water, if any, is available; (2) to what beneficial uses the water is to be applied; (3) will the appropriation impair existing rights; and (4) will the appropriation detrimentally affect the public welfare.
If the department determines there is no unappropriated water, or that if some exists it will not be applied to a beneficial use, or that the appropriation would impair existing rights or alternately or in addition be to the detriment of the public welfare 'it shall be the duty of the supervisor to reject such application and to refuse to issue the permit asked for.' RCW 90.03.290. These determinations are necessary, under the water code, even though deemed to be '...
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