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Swinomish Indian Tribal Community v. Washington State Dept. of Ecology

Supreme Court of Washington, En Banc

October 3, 2013

SWINOMISH INDIAN TRIBAL COMMUNITY, a federally recognized Indian tribe, Appellant,

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Joshua Osborne-Klein, Ziontz Chestnut Varnell Berley & Slonim, Marc Slonim, Attorney at Law, Seattle, WA, Emily Rae

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Hutchinson Haley, Attorney at Law, La Conner, WA, for Appellant.

Alan Myles Reichman, Ofc of the Aty General/ Ecology Division, Robin Grace McPherson, Attorney at Law, Olympia, WA, for Respondent.

Janette K. Brimmer, Amanda Wilcox Goodin, Earthjustice, Seattle, WA, Amicus Curiae on behalf of Center for Enviromental Law & Policy.

Lauren Patricia Rasmussen, Law Offices of Lauren P. Rasmussen PLLC, Seattle, WA, Amicus Curiae on behalf of the Port Gamble S'klallam Tribe.

Sharon Ilene Haensly, Squaxin Island Tribe, Shelton, WA, Amicus Curiae on behalf of the Squaxin Island Tribe.

Lauren Patricia Rasmussen, Law Offices of Lauren P. Rasmussen PLLC, Seattle, WA, Amicus Curiae on behalf of the Jamestown S'kallam Tribe.

Diana Rae Bob, Lummi Nation, Harry Laurence Johnsen III, Attorney at Law, Bellingham, WA, Amicus Curiae on behalf of the Lummi Nation.

Stephen Hayes Suagee, Lower Elwha Klallam Tribe, Trent Stewart-Willia Crable, Attorney at Law, Port Angeles, WA, Amicus Curiae on behalf of the Lower Elwha Klallam Tribe.

Kimberly Louise Ordon, Law Offices of Kimberly Ordon, PS, Duvall, WA, Michael Edward TaylorTulalip Tribes Tulalip, WA, Mason D. Morisset, Morisset, Schlosser, Jozwiak & Somervill, Seattle, WA, Amicus Curiae on behalf of the Tulalip Tribes.

Lisa A. Brautigam, Samuel Judge Stiltner, Puyallup Indian Tribe, Tacoma, WA, Amicus Curiae on behalf of the Puyallup Tribe of Indians.

Adam Waldon Gravley, Van Ness Feldman LLP, Seattle, WA, Amicus Curiae on behalf of Washington Water Utilities Council.

P. Stephen Dijulio, Joseph Anthony Brogan FosterPepper PLLC, Seattle, WA, for Other Parties.


[178 Wn.2d 576] ¶ 1 This case involves the validity of an amended rule from the Department of Ecology (Ecology) that reserves water from the Skagit River system for future year-round out-of-stream uses, despite the fact that in times of low stream flows these uses will impair established minimum instream flows necessary for fish, wildlife, recreation, navigation, scenic and aesthetic values. Ecology relies on RCW 90.54.020(3)(a) for authority to make the reservations of water despite the existing minimum flows. This statutory provision allows impairment of stream base flows when overriding considerations of public interest are served. The Swinomish Indian Tribal Community (Tribe) petitioned for review in superior court, challenging the validity of Ecology's amended rule reserving the water. The trial court upheld the amended rule and dismissed the Tribe's petition.

¶ 2 We conclude that Ecology has erroneously interpreted the statutory exception as broad authority to reallocate water for new beneficial uses when the requirements for appropriating water for these uses otherwise cannot be met. The exception is very narrow, however, and requires extraordinary circumstances before the minimum flow water right can be impaired. Because the amended rule exceeds Ecology's authority under the statute, the amended [178 Wn.2d 577] rule reserving the water is invalid under the Administrative Procedure Act (APA), chapter 34.05 RCW. We reverse the trial court order dismissing the Tribe's petition.


¶ 3 The Skagit River system is the third largest system in the western United States, with more than 3,000 rivers and streams that flow into the Skagit River system. The river system is the only one in the 48 contiguous states in which all six species of Pacific salmon are found.[1] The river system provides

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water for a very large number of water right holders.

¶ 4 Under the state water code, Ecology has authority to set minimum stream flows to protect fish, game, birds or other wildlife resources, recreational and aesthetic values. On March 15, 2001, Ecology promulgated the " Skagit River Basin Instream Flow Rule" (Instream Flow Rule), chapter 173-503 WAC, which established regulations for the Skagit River basin, including minimum instream flow requirements. The rule did not allocate noninterruptible water for new uses; rather, water for new uses is subject to being shut off when stream flows fall to or below the minimums established by rule, in accord with general water law. Skagit County (County) and others opposed the rule, arguing that it would effectively prevent new development that requires noninterruptible water the entire year, including homes, businesses, agriculture, and industry.

¶ 5 In April 2003, the County brought suit against Ecology, challenging the Instream Flow Rule under the APA. Over the following three years, attempts were made to reach a consensus on an amended rule permitting some new uses of water without interruption during times of low stream flows. These efforts were unsuccessful. Ecology then [178 Wn.2d 578] drafted a proposed rule amendment, which it thereafter revised in response to comments from interested parties.

¶ 6 During this rule-making process, the County offered to settle its pending suit against Ecology. The County proposed that in exchange for the County's dismissal of the suit and its cooperation in implementing the Instream Flow Rule, Ecology would revise its rule amendment to include a number of provisions. Ecology had already revised the amended rule to include some of the revisions that the County suggested and agreed to further revise the amended rule. On May 15, 2006, the County and Ecology entered into a settlement agreement and the suit was dismissed.

¶ 7 On the same day as the settlement agreement, May 15, 2006, Ecology issued the amended instream flow rule (Amended Rule),[2] which establishes reservations of water for specified uses. The Amended Rule establishes 27 reservations for domestic, municipal, commercial/industrial, agricultural irrigation, and stock watering out-of-stream uses. WAC 173-503-073, -075. The water for the new uses would not be subject to shut off during periods when the minimum flows set in the 2001 Instream Flow Rule are not met, usually in late summer and early fall. Ecology says that the amount of water reserved is a very low percentage of the total flow during low flow periods and biologists from Ecology and the Department of Fish and Wildlife found that the amount of water reserved is less than an amount that would have significant impacts on fish populations in the river system.

¶ 8 Under the state water code, minimum flows and levels established by administrative rules, including the 2001 Instream Flow Rule, are appropriations of water with priority dates of the rules' adoption, and therefore water necessary to meet established minimum flows and levels is unavailable for appropriation to other uses. Further, withdrawal [178 Wn.2d 579] of water necessary to maintain minimum flows impairs an existing water right, contrary to law.

¶ 9 The water code also directs that base flows be retained in rivers and streams sufficient for preservation of fish, wildlife, scenic, aesthetic and other environmental values, and navigation. However, withdrawal of water that conflicts with base flows may occur under an exception that applies " where it is clear that overriding considerations of the public interest will be served." RCW 90.54.020(3)(a). Ecology relied on this exception for its authority to promulgate the Amended Rule.

¶ 10 Ecology found that important public interests would be significantly advanced by the reservations because without them new withdrawals for domestic, municipal, industrial, agricultural, and stock watering uses would be interrupted when stream flows fall

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to the minimums established under the 2001 Instream Flow Rule; new sources of water were otherwise unavailable through most of the basin as a practical matter; and economic productivity would be gained.[3] Ecology then found that the impact on aquatic resources and recreational uses would be small, without significant harm to fish and wildlife, and would result in what Ecology calls a small monetary loss to fisheries.[4] Ecology concluded that the former benefits clearly override the latter potential harms.

¶ 11 In June 2008, the Tribe filed this action challenging the validity of the 2006 amended rule under the APA. On December 3, 2010, the superior court entered an order denying the Tribe's petition for review. The Tribe appealed.


¶ 12 The Tribe contends that the Amended Rule is invalid because it exceeds statutory authority, arguing that [178 Wn.2d 580] the rule conflicts with several provisions in the water code that prohibit withdrawal of water when the withdrawal would impair minimum flows set by rule, RCW 90.03.247, RCW 90.03.345, and RCW 90.22.030. The Tribe contends that Ecology's reliance on the overriding-considerations exception is based on an incorrect interpretation of RCW 90.54.020(3)(a). The Tribe also contends that Ecology improperly aggregated the reservations to meet the overriding-considerations exception for all of the reservations, when many of the reservations would not satisfy even the test that Ecology uses to determine whether the exception applies. As the party challenging the rule, the Tribe has the burden of establishing that the Amended Rule is invalid. RCW 34.05.570(1)(a).

¶ 13 At the outset, we note that the exception at issue is found in a provision calling for retention of " base flows," and the issue here is whether this exception applies to " minimum flows" established for streams in the Skagit River basin. Although the term " minimum flow" does not appear in RCW 90.54.020(3)(a), we have already determined that the overriding-considerations exception is applicable to minimum flows. Postema v. Pollution Control Hr'gs Bd., 142 Wash.2d 68, 81, 11 P.3d 726 (2000).

Standards of Review

¶ 14 The Tribe's challenge to the validity of the Amended Rule is reviewed under the APA. A court must declare an administrative rule invalid if it finds that " the rule exceeds the statutory authority of the agency." RCW 34.05.570(2)(c). Administrative " [r]ules must be written within the framework and policy of the applicable statutes," Dep't of Labor & Indus. v. Gongyin, 154 Wash.2d 38, 50, 109 P.3d 816 (2005), and so long as the rule is " reasonably consistent with the controlling statute[s]," an agency does not exceed its statutory authority. Wash. Pub. Ports Ass'n v. Dep't of Revenue, 148 Wash.2d 637, 646, 62 P.3d 462 (2003). However, " ‘ [a]dministrative rules or regulations cannot [178 Wn.2d 581] amend or change legislative enactments.’ " Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 19, 43 P.3d 4 (2002) (quoting Dep't of Ecology v. Theodoratus, 135 Wash.2d 582, 600, 957 P.2d 1241 (1998)). Rules that are not consistent with the statutes that they implement are invalid. Bostain v. Food Express, Inc., 159 Wash.2d 700, 715, 153 P.3d 846 (2007).

¶ 15 Whether the Amended Rule is valid depends, ultimately, on whether Ecology has correctly interpreted and implemented the exception in RCW 90.54.020(3)(a). This provision states:

(3) The quality of the natural environment shall be protected and, where possible, enhanced as follows:
(a) Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental values, and navigational values. Lakes and ponds shall be retained substantially in their natural condition. Withdrawals of water which would conflict

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therewith shall be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.

RCW 90.54.020(3) (emphasis added).

¶ 16 When construing a statute, our goal is to determine and effectuate legislative intent. TracFone Wireless, Inc. v. Wash. Dep't of Revenue, 170 Wash.2d 273, 281, 242 P.3d 810 (2010); Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4. Where possible, we give effect to the plain meaning of the language used as the embodiment of legislative intent. TracFone, 170 Wash.2d at 281, 242 P.3d 810; Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4. We determine plain meaning " ‘ " from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question." ’ " TracFone, 170 Wash.2d at 281, 242 P.3d 810 (quoting State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003) (quoting Campbell & Gwinn, 146 Wash.2d at 11, 43 P.3d 4)). In general, words are given their ordinary meaning, but when technical terms and terms of art are used, we give these terms their technical meaning. [178 Wn.2d 582] Tingey v. Haisch, 159 Wash.2d 652, 658, 152 P.3d 1020 (2007); City of Spokane ex rel. Wastewater Mgmt. Dep't v. Wash. State Dep't of Revenue, 145 Wash.2d 445, 452, 454, 38 P.3d 1010 (2002).

¶ 17 We consider the statutory context, related statutes, and the entire statutory scheme when ascertaining the exception's plain meaning. See TracFone, 170 Wash.2d at 281, 242 P.3d 810; Unruh v. Cacchiotti, 172 Wash.2d 98, 113, 257 P.3d 631 (2011). These considerations are especially important here. First, resolving the meaning of a statutory provision concerning water rights almost always requires consideration of numerous related statutes in the water code. See, e.g., Campbell & Gwinn, 146 Wash.2d at 12-17, 43 P.3d 4; Postema, 142 Wash.2d at 77-83, 11 P.3d 726. Second, to understand the overriding-considerations exception, we must understand the general principles to which the exception applies. We also bear in mind that " generally exceptions to statutory provisions are narrowly construed in order to give effect to legislative intent underlying the general provisions." R.D. Merrill Co. v. Pollution Control Hr'gs Bd., 137 Wash.2d 118, 140, 969 P.2d 458 (1999).[5]

¶ 18 In the Amended Rule, Ecology made 27 reservations of water from the Skagit River and its tributaries. RCW 90.54.050 authorizes Ecology to reserve and set aside, through administrative rules, water for future beneficial use in conjunction with programs provided for in RCW 90.54.040(1). RCW 90.54.040(1) directs that through the adoption of appropriate rules Ecology is to develop and implement a comprehensive water resources program that will provide a process for future decisions on water resource allocation and use.

[178 Wn.2d 583] ¶ 19 Water reservations are one way for Ecology to allocate water for specific future beneficial uses. Then, those seeking to use water that has been reserved under this process can submit " an application for a permit to make beneficial use of the public waters embodied in a reservation" and if the application is approved and a permit to beneficially use the water is issued, the priority date for the permit is the effective date of Ecology's reservation of the water. RCW 90.03.345.

Ecology's Interpretation of the Exception

¶ 20 There is no question that the 27 reservations in the Amended Rule impair the existing minimum flow rights because the uses for which the water is reserved are noninterruptible year-round uses and water will be withdrawn that will further reduce stream flows already at or below minimum flows. To justify ...

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