MAGDALENA T. BASSETT; DENMAN J. BASSETT; and OLYMPIC RESOURCE PROTECTION COUNCIL, Appellants,
STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Respondent, CENTER FOR ENVIRONMENTAL LAW & POLICY, Intervenor.
Dungeness River in the Olympic Peninsula flows 32 miles from
the Olympic Mountains north into the Strait of Juan de Fuca.
The river and its watershed are home to numerous species of
salmon and trout, including endangered Chinook and summer
chum salmon, steelhead, and bull trout. Water from the
Dungeness watershed has been scarce for decades and
critically low stream flows in the summer and fall have
proven detrimental to recovery of endangered fish
2005, the Elwha-Dungeness Planning Unit enacted a watershed
plan, seeking to address the situation and make water
management recommendations to the Department of Ecology (DOE)
for regulation of the Dungeness Basin.
November 2012, DOE promulgated an administrative rule
(Dungeness Rule) that regulated the use and appropriation of
all surface and groundwater in the watershed. The Dungeness
Rule established minimum instream flows (MIFs) for the
Dungeness River and its tributaries, required mitigation and
metering for all new water appropriations, including permit
exempt wells (PE wells), and closed the basin to new surface
water withdrawals for part of the year.
County property owners Magdalena Bassett and Denman Bassett,
and the Olympic Resource Protection Council (ORPC),
non-profit corporation who seeks to balance environmental
protection with private property rights, (collectively
"plaintiffs") challenged the Dungeness Rule in
superior court, claiming that it failed to meet procedural
and substantive Administrative Procedures Act (APA)
requirements. The court upheld the rule and the plaintiffs
neither exceeded its statutory authority nor violated any
required rulemaking procedures. In addition, the Dungeness
Rule is not arbitrary and capricious. We affirm.
November 2012, DOE filed the Dungeness Rule with an effective
date of January 2, 2013. WAC 173-518-010. To protect low
stream flows and existing water rights, DOE found that water
was not reliably available for new consumptive uses in the
Dungeness watershed. WAC 173-518-050. DOE wanted to satisfy
present and future human needs, retain natural surface water
bodies in the watershed, protect instream values and
resources, and implement its obligations under the local
watershed plan. WAC 173-518-020.
Dungeness Rule established MIFs for the Dungeness River and its
tributaries. It also heavily regulated access to surface
water and groundwater in the basin. We begin by detailing the
primary effects of the rule.
Instream Flows and Reserves
Dungeness Rule established MIFs for the Dungeness River and
eight smaller creeks in the basin. WAC 173-518-040 &
Table II. These MIFs became appropriations of water under the
prior appropriation doctrine so that future appropriations
could not disturb them. See WAC 173-518-040(3); RCW
90.03.345. DOE based the MIFs on recommendations of the 2005
Elwha-Dungeness Watershed Plan, discussed further below. WAC
173-518-040(1), (2). DOE's objective in establishing MIFs
was the protection and preservation of wildlife, fish,
scenic, aesthetic, and other environmental and navigational
also established reserves of groundwater, not subject to the
MIFs, specifically for domestic use. WAC 173-518-080. DOE found
that the public interest in access to domestic water overrode
potential impacts to instream resources. WAC 173-518-080.
Domestic water users who complied with a list of DOE
conditions could use water from the reserves for their
domestic needs, despite potential impacts to MIFs. WAC
173-518-080(2). The rule forbade any consumptive
usefrom impacting MIFs unless it came from the
groundwater reserve or was subject to mitigation, as
discussed below. WAC 173-518-040(5).
Closures and Mitigation
of water scarcity, DOE determined that surface water was not
reliably available for new consumptive uses in the basin. The
rule closed year-round eight specific tributaries as well as
all unnamed tributaries to the Dungeness River. WAC
173-518-050. It also closed the Dungeness River mainstem
between July 15 and November 15 every year. WAC 173-518-050.
water and groundwater sources within the Dungeness watershed
are hydraulically connected. WAC 173-518-070(1). Accordingly,
the Dungeness Rule closed the watershed to new groundwater
appropriations, including new permit-exempt wells,
subject to three specific exceptions. WAC 173-518-070. A new
prospective groundwater user would be required to either (1)
use the water for a nonconsumptive use; (2) demonstrate
scientifically to DOE's satisfaction that the use would
not adversely affect any closed surface waters; or (3) obtain
mitigation. WAC 173-518-070(3).
obtain mitigation, the rule established a Dungeness water
exchange, through which new users could purchase credits to
offset any new consumptive water use. WAC
173-518-070(3)(a)(i). Alternatively, new consumptive users
could propose their own mitigation plan. WAC
173-518-070(3)(a)(ii), -075. Mitigation plan requirements
included that new consumptive water uses not impair any
existing water rights. WAC 173-518-075(2)(a).
the rule required metering of all future new surface water
and groundwater appropriations in the basin. WAC 173-518-060.
Passage of Rule
Dungeness watershed included parts of Clallam and Jefferson
counties around the Dungeness River, near Sequim. The
Dungeness mainstem averaged a flow of 701 cubic feet per
second during June and 171 cubic feet per second in
September, the months with the highest and lowest
streamflows, between 1924 and 2011. Historically, irrigators
diverted up to 80 percent of the Dungeness's natural
flow. In 1998, companies and irrigation districts began to
voluntarily limit their diversions to no more than 50 percent
of the river.
January 2012, groundwater levels were declining due to
variations in rainfall, changes in irrigation practices,
irrigation ditch piping, and increased well withdrawals
associated with population growth. Approximately 14, 000
wells and well hookups withdrew about 5.98 million gallons
per day (gpd), 2.71 million gpd of which was consumptive.
This amount did not include uses for irrigation, golf course,
dairy, or industrial water.
Elwha-Dungeness Watershed Plan
2005, the Elwha-Dungeness Planning Unit, consisting of
Clallam County, the City of Port Angeles, the Elwha Klallam
Tribe, the Jamestown S'Klallam Tribe, the Agnew
Irrigation District, and DOE adopted the Elwha-Dungeness
Watershed Plan (Plan). The Plan assessed the status of water
resources in Water Resource Inventory Area (WRIA) 18, the
area ultimately affected by the Dungeness Rule, and addressed
competing demands for water within the WRIA.
Plan was the result "of a lengthy, collaborative, and
consensus-based process involving all key stakeholders in the
watershed." Administrative Record (AR) at ECY069806. It
addressed water quantity, water quality, habitat, instream
flows, stormwater, land use and management, education and
outreach, and watershed management.
Plan suggested strategies for water management in the
Dungeness Basin, including protection of instream flows and
limitation of PE wells. It recommended that continued
groundwater withdrawals be conditioned on mitigation to
surface water impacts and increased regulation of PE wells.
It suggested the creation of a groundwater reserve to
facilitate land use planning, manage growth, and protect
"central purpose" of the Plan was "to
recommend instream flows for streams and rivers within the
WRIA, for use by [DOE] as rule-making discussions
beg[a]n." AR at ECY070473. The planning unit found that
river flows were critical to fish at all lifestages and that
optimal volume and timing of flows provide numerous
ecological benefits to fish. The Plan's recommended
instream flows intended to condition new water rights in the
basin on maintenance of the regulatory instream flow level in
Plan recognized the over-appropriation of water in the basin.
It observed that some streams had water rights exceeding
natural flows in low flow seasons and instructed DOE,
"through its rule-making procedure, [to] adopt instream
flow levels and then use them in its management of subsequent
water rights applications for WRIA 18 streams." AR at
ECY070473. It proposed specific instream flow numbers for
numerous streams in the basin, including the Dungeness
mainstem. These recommended numbers are identical to those
DOE ultimately adopted in the Dungeness Rule. WAC 173-518-040,
2006, DOE began working with the local community in eastern
Clallam County to draft the Dungeness Rule's language. It
put development of the rule on hold in late 2010 while local
water resource managers focused on issues outside the scope
of the rule. In February 2011, DOE agreed with Clallam County
and the Sequim-Dungeness Water Users Association (WUA) that
it would have a rule in place by August 2012.
filed a proposed version of the Dungeness Rule on May 9,
2012, held a public hearing on the rule on June 28, and left
the public comment period open until July 9. In November
2012, DOE filed a concise explanatory statement, describing
the rule's effects and responding to each of the hundreds
of public comments. DOE published the final rule on November
16. It went into effect on January 2, 2013.
Cost-Benefit and Least Burdensome Alternative Analyses
the final rule, DOE published a final cost-benefit analysis
(CBA) which determined that, over a 20 year period, the
Dungeness Rule would cost between $9.4 million and $26.1
million and provide between $32.1 million and $79.7 million
in benefits. DOE maintained that the CBA was optional because
the Dungeness Rule was not a significant legislative rule.
also published a least-burdensome alternatives (LBA)
analysis, in which it determined that the Dungeness Rule as
written was the least burdensome out of seven alternatives.
not perform a separate analysis to determine whether the rule
produced the maximum net benefits.
the Dungeness Rule, the Bassetts could not obtain a water
right for their Clallam County property which reduced its
January 2014, ORPC formally requested that DOE amend the
Dungeness Rule, claiming that the rule was inconsistent with
state law and established precedent. Specifically, it
attacked DOE's use of the overriding considerations of
public interest (OCPI) exception to create reserves of water
and DOE's establishment of MIFs in the Dungeness
watershed without applying either a maximum net benefits test
or the four-part test for new water appropriations. DOE
denied the petition on March 18.
December 2014, the Bassetts and ORPC filed a petition for a
declaratory judgment that the Dungeness Rule was invalid. The
Center for Environmental Law and Policy (CELP) intervened as
a defendant. In December 2016, the superior court concluded
that the plaintiffs had not met their burden to show the
Dungeness Rule was invalid and dismissed the petition with
petitioned for direct review at the Supreme Court. After
briefing was complete, the Supreme Court transferred the case
to this court.
Administrative Rule Challenge
party challenging a rule has the burden of establishing that
it is invalid. Swinomish Indian Tribal Cmty. v. Dep't
of Ecology, 178 Wn.2d 571, 580, 311 P.3d 6 (2013). Under
the APA, we must declare an administrative rule invalid if
"[t]he rule violates constitutional provisions; the rule
exceeds the statutory authority of the agency; the rule was
adopted without compliance with statutory rule-making
procedures; or the rule is arbitrary and capricious."
RCW 34.05.570(2)(c). In reviewing administrative action,
"we sit in the same position as the trial court and
apply the [APA] standards directly to the agency's
administrative record." Granton v. Wash. State
Lottery Comm'n, 143 Wn.App. 225, 231, 177 P.3d 745
(2008) (footnote omitted).
that are "'reasonably consistent with the
controlling statute[s]'" do not exceed statutory
authority, but rules inconsistent with their implementing
statutes are invalid. Swinomish, 178 Wn.2d at 580-81
(quoting Wash. Pub. Ports. Ass'n v. Dep't of
Revenue, 148 Wn.2d 637, 646, 62 P.3d 462 (2003)). An
agency's action is arbitrary and capricious if it
"is the result of willful and unreasoning disregard of
the facts and circumstances." Providence Hosp. of
Everett v. Dep't of Soc. & Health Servs., 112
Wn.2d 353, 356, 770 P.2d 1040 (1989). The majority of
plaintiffs' challenges are allegations that DOE exceeded
statutory authority or violated statutory rulemaking
review questions of statutory interpretation de novo.
Jametsky v. Olsen, 179 Wn.2d 756, 761, 317 P.3d 1003
(2014). In interpreting statutes, "we give effect to the
plain meaning of the language used as the embodiment of
legislative intent." Swinomish, 178 Wn.2d at
581. We give effect to the plain meaning of the statute as
"derived from the context of the entire act as well as
any 'related statutes which disclose legislative intent
about the provision in question.'"
Jametsky, 179 Wn.2d at 762 (quoting Dep't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,
43 P.3d 4 (2002)).
statute's meaning is plain on its face, we give effect to
that meaning as an expression of legislative intent.
Blomstrom v. Tripp, 189 Wn.2d 379, 390, 402 P.3d 831
(2017). However, if, "after this inquiry, the statute
remains ambiguous or unclear, it is appropriate to resort to
canons of construction and legislative history."
Blomstrom, 189 Wn.2d at 390. Although we generally
accord substantial deference to agency decisions, "we do
not defer to an agency the power to determine the scope of
its own authority." In re Elec. Lightwave,
Inc., 123 Wn.2d 530, 540, 869 P.2d 1045 (1994).
Washington Water Law
of statutory provisions concerning water rights "almost
always requires consideration of numerous related statutes in
the water code." Swinomish, 178 Wn.2d at 582.
In this case, we are asked to interpret provisions of the
water code, the Water Resources Act of 1971 (WRA), the
Minimum Water Flows and Levels Act (MWFLA), the Watershed
Planning Act (WPA), and the Regulation of Public
Groundwaters. We begin by reviewing the fundamentals of
Washington water law.
Prior Appropriation Doctrine
follows the prior appropriation doctrine of water rights,
summarized: "'as between appropriations, the
first in time shall be the first in right.'"
Fox v. Skagit County, 193 Wn.App. ...