Argued May 23, 2013
[Copyrighted Material Omitted]
Appeal from Whitman County Superior Court. Docket No: 08-2-00181-2. Judgment or order under review, Date filed: 11/03/2011. Judge signing: Honorable David Frazier.
Rachael P. Osborn, for appellants.
Robert W. Ferguson, Attorney General, Alan M. Reichman and Diane L. McDaniel, Managing Assistants, and Frank M. Hruban, Assistant ; and Sarah E. Mack and Lynne M. Cohee (of Tupper Mack Wells PLLC ), for respondents.
David L. Monthie on behalf of Aqua Permanente, Center for Environmental Law and Policy, Five Corners Family Farmers, Friends of the San Juans, Methow Valley Citizens Council, Okanogan Highlands Alliance, Okanogan Wilderness League, Protect Our Peninsula's Future, Protect Our Whidbey Water, RIDGE, and Sequalitchew Creek Watershed Council, amici curiae.
Kimberly L. Ordon, Lauren P. Rasmussen, and Melody L. Allen on behalf of Jamestown S'Klallam Tribe, Suquamish Tribe, Tulalip Tribes, and Port Gamble S'Klallam Tribe, amici curiae.
Adam W. Gravley and Tadas A. Kisielius on behalf of Washington Water Utilities Council, amicus curiae.
AUTHOR: Justice Susan Owens. WE CONCUR: Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Steven C. González, James M. Johnson, Justice Pro Tem. AUTHOR: Chief Justice Barbara A. Madsen. WE CONCUR: Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud.
[182 Wn.2d 582] ¶ 1 In 2003, our legislature made substantial amendments to this State's water law. In 2010, we found those amendments facially constitutional. Today, Scott Cornelius, Palouse Water Conservation Network, and Sierra Club Palouse Group (collectively Cornelius) bring an as-applied constitutional claim (among other claims) against Washington State University (WSU), the Department of
Ecology, and the Pollution Control Hearings Board (PCHB). We find the amendments were applied constitutionally and find the other claims unavailing. We affirm.
¶ 2 Cornelius and WSU both draw water from the Grande Ronde Aquifer underlying the Palouse Basin. The aquifer is declining from overpumping. WSU has seven groundwater rights that serve its Pullman campus with priority dates ranging from 1934 to 1987. These rights are documented by claims, permits, or certificates depending on when the rights were perfected. Two certificates are primarily at issue in this case: 5070-A and 5072-A. Although the documents for some of WSU's rights state that their purpose was " municipal," the documents for Certificate Nos. 5070-A and [182 Wn.2d 583] 5072-A state their purpose as " domestic." 4 Admin. Record (AR) Doc. 85, at 5 (Order on Summ. J.). The holders of " municipal" water rights are now entitled to added protections under the law. See RCW 90.14.140(2)(d). There was no added protection for " municipal" water rights when Ecology issued Certificate Nos. 5070-A and 5072-A.
¶ 3 Ecology issued Certificate No. 5070-A in 1962 and Certificate No. 5072-A in 1963. When Ecology granted those certificates, it did so on the basis of system capacity rather than beneficial use. Those two certificates, as well as the document representing WSU's other water rights, assigned the water rights to particular wells. However, over the years, WSU has integrated and consolidated its water system, shifting almost all of its groundwater pumping from older wells to two newer wells drawing from the same aquifer. WSU admits Ecology did not previously authorize that integration, and no court has previously adjudicated WSU's water rights. However, after the legislature enacted the municipal water law (MWL) in 2003, Laws of 2003, 1st Spec. Sess., ch. 5, WSU applied to Ecology to amend its water right permits and certificates to conform to its actual usage. WSU wanted to legitimize its integrated system, and it sought to amend its certificates to explicitly authorize it to withdraw the aggregate quantity of water represented by all its relevant water rights from the two wells it uses today. Notice of WSU's application appeared in the Moscow-Pullman Daily News as required by statute, and Cornelius timely protested. RCW 90.03.280.
¶ 4 Processing WSU's applications required Ecology to apply a number of common law principles and statutes such as the common law of abandonment, the water code, and the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Ecology also applied the MWL. Ultimately, Ecology approved all but one of WSU's applications.  Cornelius appealed Ecology's decision approving the other applications [182 Wn.2d 584] to the PCHB, an independent agency authorized to hear certain environmental appeals under RCW 43.21B.110, on various grounds. The PCHB ruled in favor of WSU and Ecology on all issues, some on summary judgment and some after a hearing. Cornelius appealed to the Whitman County Superior Court, which affirmed the PCHB, and to the Court of Appeals, which certified the case to us. We accepted certification.
¶ 5 1. Is the MWL unconstitutional as applied to Cornelius?
¶ 6 2. Did the PCHB err by allowing Ecology to use a streamlined process for evaluating WSU's application?
¶ 7 3. Does RCW 90.44.100 authorize WSU to amend its certificates and add well locations?
¶ 8 4. Did the PCHB correctly apply SEPA?
¶ 9 5. Did the PCHB's summary judgment order improperly preclude Cornelius from presenting evidence about impairment and the public welfare?
¶ 10 6. Did RCW 90.44.130 require Ecology to determine if WSU's proposal would maintain a " safe sustaining yield" of groundwater?
¶ 11 7. Did WSU exercise reasonable diligence in putting its water rights to beneficial use?
¶ 12 8. Did WSU abandon Claim No. 98523?
¶ 13 9. Did the PCHB err in granting WSU's summary judgment motion regarding beneficial use and reasonable efficiency?
¶ 14 10. Did the water quantities authorized under Permit No. G3-28278P need to be reduced?
¶ 15 11. Is Cornelius entitled to attorney fees?
STANDARD OF REVIEW
¶ 16 The Washington Administrative Procedure Act (APA), chapter 34.05 RCW, governs our review of PCHB [182 Wn.2d 585] orders. See RCW 34.05.570(1). We sit in the same position as the superior court and apply the APA to the administrative record. Postema v. Pollution Control Hr'gs Bd., 142 Wn.2d 68, 77, 11 P.3d 726 (2000). We will grant relief from an order if we determine that it is based on an unconstitutional statute, an erroneous interpretation or application of the law, or insufficient evidence, among other things. RCW 34.05.570(3)(a), (d), (e). " The burden of demonstrating the invalidity of agency action is on the party asserting invalidity" --Cornelius in this case. RCW 34.05.570(1)(a). We review questions of law and an agency's application of the law to the facts de novo, but we give the agency's interpretation of the law great weight where the statute is within the agency's special expertise. Port of Seattle v. Pollution Control Hr'gs Bd., 151 Wn.2d 568, 593, 90 P.3d 659 (2004). We will overturn an agency's factual findings only if they are clearly erroneous. Id. at 594. Finally, many of the PCHB's rulings were made on summary judgment, which we review de novo, making the same inquiry as the PCHB. See Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005).
1. Constitutional Claims
¶ 17 Cornelius argues that the MWL cannot be applied in this case without violating his due process rights and the separation of powers doctrine. He argues both of these doctrines were violated when Ecology applied the MWL to WSU and approved WSU's groundwater amendment application. Cornelius claims those constitutional doctrines were violated when Ecology and the PCHB " reviv[ed]" WSU's allegedly relinquished groundwater rights. Appellants' Opening Br. at 20.
¶ 18 Before we address Cornelius's as-applied constitutional claims, it is helpful to review Washington's water laws and our recent decision in Lummi Indian Nation v. [182 Wn.2d 586] State, 170 Wn.2d 247, 241 P.3d 1220 (2010), which dealt with the facial constitutional challenge to the MWL underlying the conflict here.
A. Washington Water Law and Lummi Indian Nation
¶ 19 Washington, like other western territories in the late 1800s, followed a water law system called " prior appropriation." Ellis v. Pomeroy Improvement Co., 1 Wash. 572, 578, 21 P. 27 (1889). Prior appropriation is a system of " first in time ... first in right," and our legislature formally recognized that system in 1917. Laws of 1917, ch. 117, § 1 (currently codified as RCW 90.03.010). Prior appropriation focuses on the beneficial use of water and generally provides that a person's right to the beneficial use of water is superior to others if he or she first appropriated the water for beneficial use. Id.
¶ 20 Washington still follows the general prior appropriation system but has a regulatory permit scheme to balance and prioritize competing beneficial uses of the state's waters. Put simply and very generally, would-be users submit applications to Ecology and Ecology determines what water is available and to what beneficial use it can be applied before issuing permits. Lummi Indian Nation, 170 Wn.2d at 252-53; RCW 90.03.290(1). Permits represent inchoate water rights, which are not choate (i.e., vested) until perfected. Lummi ...