The Pollution Control Hearings Board has ruled that the Washington State Department of Ecology has “implied authority” to allow out-of-kind mitigation for impacts to instream flows. The Board’s carefully crafted ruling regarding its own jurisdiction also acknowledges Ecology’s authority to amend numeric instream flow rules and subsequently approve new appropriations without minimum flow conditions.
The Board’s summary judgment ruling in OWL v. KGH rejected arguments by two environmental groups that would have extended last year’s Supreme Court ruling in Swinomish Indian Tribal Community v. Ecology to water rights permitting decisions. Underlying the Board’s decision is its finding that minimum instream flows set by rule are “regulatory” and can be amended, whereas “base flows” are statutory and must be protected from impairment by new water right permits even if regulatory instream flows are made “inapplicable” to a class of water uses.
While concluding that out-of-kind mitigation is not “per se unlawful,” the decision complicates what is expected to become one of Ecology’s principal fixes to water allocation regulatory problems in the post-Swinomish era. What precisely are “base flows” that must be protected from impairment and how do they differ from “minimum flows” set by regulation? How can one establish non-impairment of these base flows on a case-by-case basis, especially if future rule amendments bypass established minimum instream flows that the Supreme Court has described as water rights with priority dates that must be protected from impairment?
Click here for a complete copy of my article on the OWL v. KGH decision.
 Okanogan Wilderness League (OWL) and Center for Environmental Law and Policy (CELP) v. State of Washington Department of Ecology and Kennewick General Hospital (KGH), PCHB No, 13-146, Order on Motions for Summary Judgment (July 31, 2014).
 Swinomish Indian Tribal Community v. Ecology, 178 Wn.2d 571, 311 P.3d 6 (2013).
On January 21, 2014, the Olympic Resource Protection Council (ORPC) filed a petition to amend the Dungeness River Basin instream flow rule, in response to the Supreme Court opinion in Swinomish v. Department of Ecology. The petition asserts that Chapter 173-518 WAC is invalid because of an “overriding consideration of public interest” (OCPI) finding similar to one rejected by the Supreme Court in Swinomish. Unlike the Skagit basin rule that was invalidated in Swinomish, the reservations in the Dungeness instream flow rule were adopted simultaneously with the adoption of minimum flows. ORPC’s petition contends the Dungeness rule is invalid because of the OCPI finding, which acts like a poison pill to eliminate the reservations. The reservations were an essential part of the bargain made by local property owners during the planning process to accept higher instream flows in exchange for Ecology reserving water for some rural development. If the reservations are invalid, the petition argues, the entire rule is invalid.
The petition also makes some novel legal arguments, including: (1) that Ecology must conduct a maximum net benefits analysis to set instream flows in excess of base flows; and (2) that the instream flows are ultra vires because Ecology failed to make findings under the 4-part test of RCW 90.03.290. These arguments have some merit, but have not yet been considered by the Supreme Court in a case challenging a minimum flow rule.
The ORPC petition is available on Ecology’s website at: http://www.ecy.wa.gov/programs/wr/instream-flows/dungeness.html Ecology must respond to the petition within 60 days, or by March 23, 2014. Ecology can either deny the petition in writing, which is appealable under the Administrative Procedure Act, or initiate rule-making proceedings.
What do you think about the arguments in the ORPC petition? Ecology has statutory authority to adopt reservations without an OCPI finding either before or simultaneously with the adoption of minimum flows. Was the OCPI finding in the Dungeness rule an unnecessary “poison pill” that jeopardized the reservations? Must minimum flows, like reservations, meet the 4-part test? See RCW 90.03.345 before answering. Which other instream flow rules are subject to similar challenges? What is the best course for the Department of Ecology to respond to these issues?