CENTER FOR ENVIRONMENTAL LAW & POLICY, AMERICAN WHITEWATER, and SIERRA CLUB, Appellants,
STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Respondent.
2015, the Department of Ecology (Ecology) promulgated an
administrative rule that establishes minimum instream flows
of 850 cubic feet per second (cfs) for the lower reach of the
Spokane River during summer months (Rule). Ecology's
primary basis for establishing a minimum instream flow was to
protect and preserve fish habitat within the river.
Center for Environmental Law & Policy (Center),
Sierra Club,  and American Whitewater (collectively
CELP) challenge the validity of this Rule, arguing that it
exceeds Ecology's statutory authority and is arbitrary
and capricious. Specifically, CELP relies on a provision of
the Water Resources Act of 1971 (WRA) to argue that Ecology
was required to establish a minimum instream flow that
protects multiple enumerated instream values, not just fish.
CELP also argues that the Rule violates the public trust
doctrine and challenges Ecology's exclusion of certain
documents containing instream flow recommendations from its
that the Rule is not reasonably consistent with the WRA, and
therefore, it exceeds Ecology's rule-making authority. We
also hold that the Rule was adopted without regard to the
attending facts and circumstances, and is therefore arbitrary
and capricious. However, we reject CELP's challenges
based on the public trust doctrine and adequacy of
Ecology's rule-making file. Accordingly, we hold that the
Rule is invalid.
Spokane River is a shared resource between Washington and
Idaho. It begins in northwestern Idaho, flows west through
the City of Spokane, and eventually connects to the Columbia
River in eastern Washington.
Spokane River is an important economic, recreational, and
cultural attraction in the Spokane area. Spokane residents
regularly use the river for boating, tubing, swimming, and
fishing. The river also draws regional visitors when its
flows are sufficient to support boating opportunities. A
number of small businesses depend on the river to provide
recreation-based activities, including river rafting,
kayaking, tubing, and guided fishing trips. The river is a
central feature of the region's identity, and Spokane
residents view the river as an integral part of their
Avista Corporation's Dams
on the Spokane River is controlled by a series of dams owned
and operated by Avista Corporation. Avista operates its dams
under a license issued by the Federal Energy Regulatory
Commission (FERC) in 2009. The license requires Avista to
maintain specific minimum stream flows in the Spokane River
throughout the year. Between June 16 and September 30, Avista
must operate its Upper Falls and Monroe Street dams to
provide minimum stream flows of 850cfs.
of the relicensing process, Avista conducted several studies
to evaluate the potential influence of its operations on the
natural resources in its hydroelectric project area. Some of
these studies examined the general habitat characteristics
and spawning activity of trout and mountain whitefish in the
Spokane River. Two studies evaluated the relationship between
effective fish spawning and stream flows in various reaches
of the river. Avista also conducted a Whitewater paddling
instream flow assessment study, which assessed Whitewater
boating opportunities on the Spokane River at different
stream flows. Nearly all Whitewater survey participants
preferred flows higher than 1, 353 cfs to support boating on
the lower reach of the river (downstream of the Upper Falls
and Monroe Street dams).
Spokane Valley-Rathdrum Prairie Aquifer and Municipal Water
Spokane Valley-Rathdrum Prairie Aquifer underlies the Spokane
River. It is the sole source of municipal water supply for
the area. The aquifer and the river are highly interactive.
Any withdrawal of water from the aquifer has a direct and
immediate impact on river flows. Increased groundwater use
from the aquifer has led to a decrease in river flows. In the
early 1990s, Ecology determined that the river's low
flows in late summer were continuing to decline. This
prompted Ecology to stop issuing new groundwater rights
allowing withdrawals from in the aquifer.
Instream Flow Rulemaking
state Water Code, chapter 90.03 RCW, authorizes Ecology to
set minimum stream flows for a river or stream through a
collaborative process with watershed planning
groups. RCW 90.03.247(2); RCW 90.82.080(1)(a)(ii).
Ecology began working with watershed planning groups in 1998
to develop instream flow protection for the Spokane River.
The watershed planning groups were unable to achieve
consensus regarding the minimum instream flows that should be
adopted for the Spokane River. Because the members of the
watershed planning unit were unable to reach consensus,
Ecology initiated rulemaking under the Washington
Administrative Procedures Act (APA) to establish minimum
instream flows. RCW 90.82.080(1)(a)(ii), (c).
commenced formal rulemaking in January 2014. Ecology's
draft Rule proposed a minimum instream flow of 850 cfs for
the downriver reach of the Spokane River between June 16 and
September 30, as measured at the Spokane gage,  which is located
downstream of the Monroe Street dam. Ecology based this
instream flow on the recommendation of the Washington
Department of Fish and Wildlife's (WDFW) instream flow
biologist Hal Beecher. Beecher initially recommended a
minimum instream flow between 900 and 1, 050 cfs from July 1
to September 30, as measured at the Spokane gage. Several
years later, in May 2012, Beecher recommended minimum
instream flow of 850 cfs between June 16 and September 30, as
measured at the Spokane gage. Beecher's 2012 instream
flow recommendation was based on the above discussed trout
and whitefish spawning studies, which were conducted as part
of Avista's dam relicensing process in 2009. Beecher
later qualified this recommendation and emphasized that the
proposed summer flows were "not perceived by [him] as
enhancement, rather as a floor." Administrative Record
(AR) at 14233.
the rulemaking comment period, Ecology received hundreds of
public comments critical of the 850 cfs minimum instream flow
in its proposed Rule. Many of these comments asked Ecology to
conduct additional studies on how the proposed 850 cfs
minimum instream flow at the lower reach of the river would
impact recreation, aesthetics, navigation, water quality,
temperature, and broader ecosystem values. Other commenters
asked Ecology to assess climate change and interstate
implications of the proposed Rule. Small recreational
business owners commented that they would be unable to
provide recreational river activities, such as float and
canoe trips, at the proposed 850 cfs summer flows.
Center and the Sierra Club sent Ecology a combined comment
letter criticizing the proposed Rule, along with 43
electronic documents covering a range of topics, including
the return of anadromous fish to the Columbia River, scenic
and aesthetic flows in the Spokane River, climate change,
fish studies, interstate water issues, and recreational use
of the river. The Center and the Sierra Club also provided
Ecology with a photographic inventory of 37 key observational
points located on the downriver reach of the Spokane River,
obtained at five different summer flows. One of these photos
showed researchers floating the river in a hard shell kayak
in July 2015 at about 770 cfs. Another photo showed people
floating down the river in tubes at 770 cfs. And another
photo showed a boat navigating the river at 770 cfs. However,
the Center and the Sierra Club cautioned that this 770 cfs
flow would be unsuitable for larger commercial rafts.
American Whitewater, a nonprofit river conservation
organization, also sent Ecology a letter in which it claimed,
based on surveys it conducted, that acceptable flows for
kayaking, canoeing, and rafting the Spokane River were
between 1, 500 cfs and 15, 000 cfs, with 5, 000 cfs as an
claimed that it considered all of these comments and
materials it received during the rulemaking process.
Specifically, Ecology stated that it "considered the
recreational, aesthetic, and navigational values at multiple
stages throughout the process of establishing these instream
flows for the river." AR at 3283. However, Ecology
rejected the recreational flow criteria of the river in
establishing instream flows. Ecology "chose not to
establish instream flow values based on those recreational
needs expressed during the FERC process or any other process
including this comment period." AR at 2985.
Ecology "chose to rely on studies offish habitat to
establish instream flow levels." AR at 3283. Ecology
made clear throughout rulemaking that its proposed minimum
instream flows were "based upon fish habitat
studies," and were "needed for fish survival,
including both whitefish and redband trout." AR at 79,
66. Ecology summarily concluded that instream flows that
protect fish habitat would also protect the recreational and
aesthetic values of the river.
adopted the Rule in January 2015, and it became effective in
February 2015. The Rule establishes minimum instream flows of
850 cfs on the lower reach of the Spokane River, as measured
at the Spokane gage downstream of the Monroe Street
minimum instream flow established by administrative rule,
including Ecology's 2015 Rule, is an appropriation of
water with a priority date of the rule's effective date.
RCW 90.03.345. Water appropriated prior to adoption of the
Rule are senior water rights and are not affected by the
Rule. However, appropriations after the Rule is established
are junior water rights and are interruptible if flow on the
Spokane River decreases below the minimum instream flows
specified in the Rule. Ecology plans to use the minimum
instream flows established by the Rule to manage future water
withdrawals from the Spokane River and the aquifer that
underlies it. The Rule also establishes Washington's
legal interests in the water of the river and aquifer in the
event of interstate conflict.
Petition to Amend the Rule
February 2016, CELP submitted a joint petition asking Ecology
to amend the Rule and increase the 850 cfs summer minimum
instream flows as measured at the Spokane gage. Ecology denied
the petition in April.
CELP brought suit against Ecology, challenging the validity
of the instream flow Rule under the APACELP claimed that the
portion of the Rule setting minimum summer instream flows at
850 cfs exceeded Ecology's statutory authority and was
arbitrary and capricious. CELP also argued that Ecology had
failed to fulfill its responsibilities under the Public Trust
Doctrine in adopting the Rule.
also filed a motion to supplement the record before the
superior court with three documents related to the Avista dam
relicensing process and watershed resource planning processes
for the region. The specific documents CELP requested be
added to the rule-making file were: (1) Ecology's
comments to FERC during Avista's dam relicensing, (2) an
April 23, 2007, memo in which Beecher noted that habitat
rearing at the Spokane gage peaks at 1040 cfs, and (3) a June
30, 2004, document in which Beecher recommended a minimum
discharge of 700 cfs at the Post Falls dam. Ecology opposed
the motion and submitted declarations in opposition. Three of
the agency's rule writers submitted declarations, stating
that the documents were not in their custody during the
rulemaking process and that they did not consider them when
making decisions to set summer minimum instream flows at 850
superior court denied CELP's motion to supplement the
record with these three documents. The superior court later
denied CELP's petition challenging the validity of the
petitioned for direct review at the Washington Supreme Court.
After briefing was complete, the Supreme Court transferred
the case to this court.
Validity of the Rule
argues that the 850 cfs summer minimum instream flow
established in Ecology's Rule is invalid because it
exceeds Ecology's statutory authority and is arbitrary
and capricious. We agree.
challenge to the validity of an administrative rule is
reviewed under the APA. Swinomish Indian Tribal Cmty. v.
Dep't of Ecology, 178 Wn.2d 571, 580, 311 P.3d6
(2013). Under the APA, an agency rule may only be invalidated
if it: (1) is unconstitutional, (2) exceeds the agency's
statutory authority, (3) was adopted without complying with
statutory rule making procedures, or (4) is arbitrary or
capricious. RCW 34.05.570(2)(c). The validity of an agency
rule is a question of law, which we review de novo. Wash.
Rest. Ass'n v. State Liquor Control Bd., 200 Wn.App.
119, 126, 401 P.3d 428 (2017).
agencies only possess those powers expressly granted to them
by statute or those impliedly authorized by their enabling
statutes. Lenander v. Dep't of Ret. Sys., 186
Wn.2d 393, 404, 377 P.3d 199 (2016). When an agency acts
within its rule making authority, the agency's rule is
presumed valid, and the burden of demonstrating invalidity
rests with the challenger. Wash. Fed'n of State
Employee, v. Dep't of Gen. Admin, 152 Wn.App. 368,
378, 216 P.3d 1061 (2009); RCW 34.05.570(1)(a). The party
attacking the validity of a rule must show compelling reasons
why the rule conflicts with the legislation's intent and
purpose. Wash. Fed'n of State Employees, 152
Wn.App. at 386.
[r]ules must be written within the framework and policy of
the applicable statutes.'" Wash. State Hosp.
Ass'n v. Dep't of Health, 183 Wn.2d 590, 595,
353 P.3d 1285 (2015) (internal quotation marks omitted)
(quoting Swinomish, 178 Wn.2d at 580). An agency
exceeds its statutory authority if it adopts a rule that is
not reasonably consistent with the controlling statutes.
Ecology Exceeded its ...