Filed Washington State Court of Appeals Division Two

June 26, 2019

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

CENTER FOR ENVIRONMENTAL LAW & No. 51439-7-II POLICY, AMERICAN WHITEWATER, and SIERRA CLUB,

Appellants,

v.

STATE OF WASHINGTON DEPARTMENT PUBLISHED OPINION OF ECOLOGY,

Respondent.

LEE, A.C.J. — In 2015, the Department of Ecology (Ecology) promulgated an

administrative rule that establishes minimum instream flows of 850 cubic feet per second (cfs)1

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.

1 The legally recognized unit of measurement for flowing water is one cubic foot of water per second of time. RCW 90.03.020. No. 51439-7-II

The Center for Environmental Law & Policy (Center),2 the Sierra Club,3 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 rule-making

file.

We hold 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.

FACTS

A. THE SPOKANE RIVER

The 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.

2 The Center is a nonprofit organization whose mission is to protect and promote stewardship of Washington’s freshwater resources through public education, advocacy, policy reform, and public interest litigation. 3 The Sierra Club is a national nonprofit organization whose mission is to protect, explore, and enjoy the planet.

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The 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

community.

B. AVISTA CORPORATION’S DAMS

Stream flow4 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 850 cfs.

As part 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

4 Stream flow is the volume of water that flows down a river or stream and is measured in cubic feet per second. Instream flows are the regulatory stream flow thresholds used by Ecology to determine whether there is water to withdraw for new uses while still protecting fish and other instream resources.

3 No. 51439-7-II

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).

C. ECOLOGY RULEMAKING

1. The Spokane Valley-Rathdrum Prairie Aquifer and Municipal Water Supply

The 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.

2. Instream Flow Rulemaking

The 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.5 RCW

90.03.247(2);6 RCW 90.82.080(1)(a)(ii). Ecology began working with watershed planning groups

5 A watershed is an area of land where all of the water that falls into it drains into a common outlet. UNITED STATES DEPARTMENT OF THE INTERIOR, THE USGS WATER SCIENCE SCHOOL, https://water.usgs.gov/edu/watershed.html (last visited June 17, 2019). A watershed planning group is comprised of local governments, who convene and collaborate on their desired management practices for the watershed.

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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).

Ecology 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,7 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

6 RCW 90.03.247 has been amended since the events of this case transpired. However, the amendments do not materially affect the statutory language relied on by this court. Accordingly, we refrain from including the word “former” before RCW 90.03.247. 7 The U.S. Geological Survey (USGS) (the sole science agency for the Department of the Interior) measures streamflow of rivers through stream gages placed at certain locations in the river. USGS, HOW STREAMFLOW IS MEASURED, https://www.usgs.gov/special-topic/water-science- school/science/how-streamflow-measured?qt-science_center_objects=0#qt- science_center_objects (last visited June 17, 2019).

5 No. 51439-7-II

proposed summer flows were “not perceived by [him] as enhancement, rather as a floor.”

Administrative Record (AR) at 14233.

During 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.

The 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

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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 optimal flow.

Ecology 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.

Instead, Ecology “chose to rely on studies of fish 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.

Ecology 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 dam.8 WAC 173-557-050.

8 The Rule also establishes minimum instream flows for other months of the year. WAC 173- 557-050. And it establishes minimum instream flows for the upper reach of the Spokane River, as measured at the Greenacres gage. WAC 173-557-050. However, the only instream flow at issue in this appeal is the instream flow established for the lower reach of the river between June 16 and September 30, as measured at the Spokane gage, which is located downstream of the Monroe Street dam.

7 No. 51439-7-II

A 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.

D. PETITION TO AMEND THE RULE

In 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.9 Ecology

denied the petition in April.

In May, 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.

CELP 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

9 CELP also asked Ecology to amend the minimum summer instream flow established for the Greenacres gage, but that request is not a subject of this appeal.

8 No. 51439-7-II

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 cfs.

The 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 Rule.

CELP petitioned for direct review at the Washington Supreme Court. After briefing was

complete, the Supreme Court transferred the case to this court.

ANALYSIS

A. VALIDITY OF THE RULE

CELP 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.

1. Legal Principles

A challenge to the validity of an administrative rule is reviewed under the APA. Swinomish

Indian Tribal Cmty. v. Dep’t of Ecology,

,

(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

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(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.,

, 126,

(2017).

Administrative 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.,

,

(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,

,

(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,

.

“‘Administrative [r]ules must be written within the framework and policy of the applicable

statutes.’” Wash. State Hosp. Ass’n v. Dep’t of Health,

,

(2015)

(internal quotation marks omitted) (quoting Swinomish,

). An agency exceeds

its statutory authority if it adopts a rule that is not reasonably consistent with the controlling

statutes. Id.

2. Ecology Exceeded its Rule Making Authority

Central to this case are issues of statutory interpretation. The parties dispute whether the

legislature imposed a mandatory duty upon Ecology, in the exercise of its rule making authority,

to establish minimum instream flows that protect multiple instream values, rather than a single

value chosen by Ecology. Resolving this dispute informs whether Ecology acted within its rule

making authority when it enacted the Rule.

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The goal of statutory interpretation “is to ascertain and carry out the legislature’s intent.”

Jametsky v. Olsen,

,

(2014). When possible, we must give

effect to the plain meaning of the statute as an expression of legislative intent.

In ascertaining

the statute’s plain meaning, we consider the statutory context, related statutes, and the entire

statutory scheme as a whole. Swinomish,

.

a. Ecology’s authority to establish minimum instream flows

This case implicates several related statutes within the general water code. Ecology’s

authority to establish minimum instream flows derives from the state Water Code,10 the Minimum

Water Flows and Levels Act,11 and the Water Resources Act of 1971.12

i. Water Code

The Water Code vests Ecology with the exclusive authority to establish minimum instream

flows for the state’s streams and lakes. RCW 90.03.247(2). In exercising its authority under the

Water Code, Ecology must consult with and consider the minimum flow proposals of the WDFW

at all stages of rule development. RCW 90.03.247.

ii. Minimum Water Flows and Levels Act

Enacted in 1969, the Minimum Water Flows and Levels Act (MWFLA) authorizes Ecology

to establish, by administrative rule, minimum flows or levels for public waters for the purposes of

10 Chapter 90.03 RCW. 11 Chapter 90.22 RCW. 12 Chapter 90.54 RCW.

11 No. 51439-7-II

protecting fish and other wildlife, recreation and aesthetics, or water quality. Swinomish,

; RCW 90.22.010. The MWFLA provides, in relevant part:

[Ecology] may establish minimum water flows or levels for streams, lakes or other public waters for the purposes of protecting fish, game, birds or other wildlife resources, or recreational or aesthetic values of said public waters whenever it appears to be in the public interest to establish the same. In addition, [Ecology] shall, when requested by the [WDFW] to protect fish, game or other wildlife resources under the jurisdiction of the requesting state agency, or if [Ecology] finds it necessary to preserve water quality, establish such minimum flows or levels as are required to protect the resource or preserve the water quality described in the request or determination.

RCW 90.22.010.

Minimum instream flows established by rule “shall in no way affect existing water and

storage rights.” RCW 90.22.030. And Ecology may not grant the right to divert or store public

waters “which shall conflict” with the minimum instream flows it establishes. RCW 90.22.030.

Stated another way, the minimum instream flows Ecology establishes by rule are appropriative

water rights, subject to the longstanding rule that “‘as between appropriations, the first in time

shall be the first in right.’” Fox v. Skagit County,

,

(2016)

(quoting RCW 90.03.010) (emphasis omitted)).

In 1993, the legislature amended chapter 90.22 RCW to require Ecology, in cooperation

with Indian Tribes and the WDFW, to establish a statewide list of priorities in evaluating instream

flows. RCW 90.22.060. In establishing such list, Ecology “shall consider the achievement of wild

salmonid production as its primary goal.” RCW 90.22.060. Thus, the legislature plainly

“continued to place a high value on maintaining instream flows to support fish.” Swinomish,

.

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iii. Water Resources Act

Enacted in 1971, the Water Resources Act (WRA) sets forth “‘fundamentals of water

resource policy for the state to insure that waters of the state are protected and fully utilized for the

greatest benefit to the people of the state of Washington.’” Swinomish,

(quoting

LAWS OF 1971, 1st Ex. Sess., ch. 225 § 1). It also provides “ ‘direction to [Ecology] and other

state agencies and officials, in carrying out water and related resource programs.’ ” Id. (quoting

LAWS OF 1971, 1st Ex. Sess., ch. 225 § 1).

The WRA recognizes that water is a critical resource and proper utilization of water is

necessary to promote public health, economic well being, natural resources, and the aesthetic

values of the state. RCW 90.54.010(1)(a). It contemporaneously acknowledges that the supply

and availability of water has become increasingly limited. RCW 90.54.010(1)(a). The legislature

enacted the WRA to “ensure that available water supplies are managed to best meet both instream

and offstream needs” through a comprehensive planning process. RCW 90.54.010(1)(b). To this

end, the WRA authorizes Ecology to establish administrative rules that reserve and set aside waters

for beneficial use “whenever it appears necessary to the director in carrying out the [WRA’s]

policy.” RCW 90.54.050.

In 2002, the legislature enacted a new section of the WRA in which it “recognize[d] the

critical importance of providing and securing sufficient water to meet the needs of people, farms,

and fish.” RCW 90.54.005. The WRA enumerates three water resource objectives that should

guide water resource strategies at the local watershed level: (1) providing sufficient water to meet

residential, commercial, and industrial needs; (2) providing sufficient water to support productive

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fish populations; and (3) providing sufficient water to support productive agriculture. RCW

90.54.005(1)-(3).

The WRA also provides that the utilization and management of Washington waters “shall

be guided” by a number of general fundamentals. RCW 90.54.020. One fundamental declares

beneficial uses of water to include domestic, stock watering, industrial, commercial, agricultural,

irrigation, hydroelectric power production, mining, fish and wildlife maintenance and

enhancement, recreational, thermal power production, and preservation of environmental and

aesthetic values. RCW 90.54.020(1). The WRA does not prioritize between these competing

beneficial uses of water. RCW 90.54.020.

The WRA lists a number of other competing declarations of fundamentals, including

allocating water among potential uses in a way that secures “the maximum net benefits for the

people of the state,” developing multipurpose water storage facilities, preserving adequate supplies

of water in potable condition, developing regional water supply systems, and encouraging water

conservation practices. RCW 90.54.020(2). It also provides that the “quality of the natural

environment shall be protected and, where possible, enhanced as follows: … 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.” RCW

90.54.020(3)(a).

b. The WRA requires Ecology to consider all instream values

Relying on the language “shall” in RCW 90.54.020(3)(a), CELP argues that Ecology is

obligated to establish minimum instream flows that preserve wildlife, fish, scenic, aesthetic, and

environmental and navigational values. Ecology counters that its “primary rulemaking authority”

14 No. 51439-7-II

here stems from MWFLA, and that the legislature’s use of the word “or” in the MWFLA (RCW

90.22.020) provides Ecology discretion “to determine the best purposes” for which it sets

minimum instream flows. Br. of Resp’t at 18. We are not persuaded by either party’s

interpretation.

At the outset, we note that “[t]he meaning of ‘shall’ is not gleaned from that word alone

because our purpose is to ascertain legislative intent of the statute as a whole.” State v. Krall,

,

(1994). The word “shall” in a statute imposes a mandatory

requirement “unless a contrary legislative intent is apparent.” Erection Co. v. Dep’t of Labor &

Indus.,

,

(1993). When possible, we derive legislative intent

from the plain language of the statute. Lenander,

.

Here, in considering the statutory context, related statutes, and the entire statutory scheme

of the WRA, we hold that CELP’s argument that the rule must preserve all instream values is not

persuasive. The language CELP relies upon is one of several enumerated general fundamentals

meant to guide water resource use and management. RCW 90.54.020. The WRA’s stated purpose

is to develop a comprehensive planning process that ensures better water management practices

and alleviates conflict among competing water users. RCW 90.54.010(1)(b). It is intended to

“ensure that available water supplies are managed to best meet both instream and offstream needs.”

RCW 90.54.010(1)(b). Consistent with the WRA’s overall goals of safeguarding public health

and economic well-being, and preserving the state’s natural resources and aesthetic values, the

WRA authorizes Ecology to develop a “comprehensive state water resources program” that

“provide[s] a process for making decisions on future water resource allocation and use.” RCW

90.54.040(1). The WRA’s “[g]eneral declaration of fundamentals” are meant to guide Ecology in

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the exercise of its water management duties. RCW 90.54.020. They do not impose a list of

mandatory requirements for every agency rule that Ecology adopts in the exercise of those duties.

The use of the word “shall” directs Ecology what values it must consider. See Bassett v. Dep’t of

Ecology, ___ Wn. App.2d ___,

(2019) (holding that the legislature’s use of the word

“shall” in RCW 90.54.020 did not impose a formal test on Ecology to secure maximum net benefits

before it allocated water).

However, Ecology’s argument is equally unpersuasive. Ecology argues that the WRA’s

general declaration of fundamentals has no application when Ecology exercises its rulemaking

authority under the MWFLA. But the MWFLA does not operate in a vacuum. As discussed above,

Ecology’s exclusive authority to establish minimum instream flows stems from several statutory

provisions within the Water Code. In enacting the WRA, the legislature recognized that the proper

utilization of the state’s water resources was “necessary to the promotion of public health and the

economic well-being of the state and the preservation of its natural resources and aesthetic values.”

RCW 90.54.010(1)(a). The WRA prioritizes comprehensive water resource planning as a way to

resolve conflict among competing water users and interests. RCW 90.54.010(1)(b). It balances

the water needs of the state’s growing population with the objective of preserving instream

resources so that future generations can continue to enjoy them. RCW 90.54.010(1)(b).

Under the WRA, Ecology may set aside water for beneficial use “whenever it appears

necessary to the director in carrying out the [WRA’s] policy.” RCW 90.54.050. One way for

Ecology to do so is by establishing minimum instream flows and levels, which are treated as any

other appropriative water right. In the exercise of that authority, Ecology must meaningfully

consider the instream values enumerated in RCW 90.54.020(3)(a), and attempt to preserve them

16 No. 51439-7-II

to the fullest extent possible. This gives effect to the legislative intent of the WRA to ensure that

water within the state is protected and “fully utilized for the greatest benefit to the people of the

state of Washington.” RCW 90.54.010(2).

Ecology’s interpretation of its rulemaking authority under the MWFLA is inconsistent with

the emphasis the legislature has placed on fully utilizing water for its maximum benefit and

ensuring that water supplies are managed to best meet both instream and offstream needs. When

read together with the WRA, the MWFLA does not grant Ecology the authority to establish a

minimum instream flow for the purpose of narrowly protecting only one instream value that

Ecology deems “best.” Br. of Resp’t at 18. Instead, it directs Ecology to meaningfully consider a

range of instream values and to consider how an instream flow that protects one value might impact

the others.

This is not to say that a rule is invalid simply because it fails to preserve and protect each

enumerated instream value. The legislature recognized the near impossibility of appropriating

water in a way that satisfies every one of its beneficial uses. RCW 90.54.010. Water is an

increasingly scarce resource and putting it to one beneficial use necessarily limits its availability

for a competing use. Ecology’s role in water resource management is to balance the competing

beneficial uses of water and ensure that water is fully utilized to the greatest benefit possible. If

the minimum instream flow necessary to protect one value is detrimental to another, the legislature

has made the choice clear—the one that protects fish prevails. See RCW 90.22.060; RCW

90.54.005(2); RCW 90.82.070. However, the high value that the legislature placed on maintaining

instream flows supportive of fish does not mean that Ecology can simply disregard other instream

values and narrowly focus only on fish.

17 No. 51439-7-II

When viewed under this framework and policy, the Rule challenged here is not reasonably

consistent with the statutes it implements. Ecology made clear throughout rulemaking that its

proposed minimum instream flows were only “based upon fish habitat studies” and focused only

on “fish survival, including both whitefish and redband trout.” AR at 79, 66.

Ecology responded to public concern over the proposed minimum instream flow by

asserting its position that it may establish a minimum instream flow for the purpose of protecting

only one instream value. In its concise explanatory statement, Ecology explained that it had

discretion to choose one value for which to set a minimum instream flow. As explained above,

this interpretation of Ecology’s rule making authority is inconsistent with the framework of the

WRA.

Ecology argues that it nonetheless operated within framework of the controlling statutes

because it “fully considered” other instream values during multiple stages of its rule making

process. Br. of Resp’t at 19. However, the record shows that Ecology’s consideration involved

merely collecting public comments and studies that showed 850 cfs was not sufficient to preserve

the recreational and aesthetic values of the river, and then summarily “reject[ing]” these higher

instream values. AR at 3283. Such cursory treatment of these other values does not comport with

the emphasis the legislature placed on effectively managing water resources to ensure that water

is fully utilized to the greatest benefit of the people.

The record does not support Ecology’s repeated claim that a minimum instream flow

protective of fish would necessarily preserve other instream values. And contrary to Ecology’s

argument, three photographs showing a boat has not grounded at flows below 850 cfs does not

18 No. 51439-7-II

“plainly show[]” that recreational and navigational uses are “plentiful” at these levels. Br. of

Resp’t at 24.

Ecology’s reliance on Avista’s federal license requirements is equally misplaced. Ecology

argues that the Rule protects all enumerated instream values because it is “identical” to Avista’s

federally required flows and “Avista’s federal license requires Avista to release flows for

recreation.” Br. of Resp’t at 25. This argument oversimplifies the nature and scope of Avista’s

license.

Avista’s federal license governs the operation and maintenance of five hydroelectric

project developments located along the Spokane River. The project area spans several counties in

Washington and Idaho, and the license dictates flows on the Spokane River from Coeur d’Alene

Lake in Idaho through the city and suburbs of Spokane. The FERC license only requires Avista

to operate certain hydroelectric developments on the river in a way that enhances recreation at

distinct reaches of the river. Notably, the license does not require Avista to operate its Monroe

Street and Upper Falls dams (the hydroelectric dams located just upstream of the river reach at

issue here) in a way that supports recreation.

Instead, the FERC license requires Avista to operate the Monroe Street and Upper Falls

dams to provide minimum summer flows of 850 cfs from June 16 to September 30 in order to

“enhance aquatic habitat for rainbow trout and mountain whitefish in the Spokane River.” AR at

8074. And it requires Avista to analyze the spawning habitat in response to flow alterations in the

Spokane River below the Monroe Street and Upper Falls dams. Thus, Ecology’s argument that its

summer instream flows preserve recreation simply because they are identical to the summer flows

required by Avista’s license is unavailing.

19 No. 51439-7-II

Ecology’s attempt to bootstrap consideration of other instream values through its review

of Avista’s studies is also unpersuasive. Cursory review of certain studies Avista conducted as

part of its relicensing process does not constitute meaningful review of the instream values

enumerated in RCW 90.54.020(3)(a). And this argument ignores Ecology’s own statement that it

“chose[] not to establish instream flow values based on those recreational needs expressed during

the FERC process.”13 AR at 2985.

The record shows that Ecology based the 850 cfs flow on fish habitat studies because it

believed it had discretion to establish a minimum instream flow for the purpose of protecting only

one instream use. This narrow focus on preserving one instream value is not reasonably consistent

with the WRA’s purpose of ensuring “that waters of the state are protected and fully utilized for

the greatest benefit to the people of the state of Washington.” RCW 90.54.010(2). Because the

Rule was not written within the framework and policy of the applicable statutes, it exceeds

Ecology’s authority and is invalid.

3. The Rule is Arbitrary and Capricious

CELP also argues that the Rule is invalid because it is arbitrary and capricious. We agree.

An agency rule is arbitrary and capricious “if it is willful and unreasoning and taken

without regard to the attending facts or circumstances.” Puget Sound Harvesters Ass’n v. Dep’t of

13 Ecology also asserts that the only way to achieve flows higher than 850 cfs is by changing Avista’s federal license. However, the record shows that flows measured at the Spokane gage routinely exceed 850 cfs in the summertime, even during very dry years. Ecology’s further suggestion that the Rule would impact Avista’s license is misplaced. Minimum instream flows established by Rule are appropriations of water with a priority date of the rule’s effective date. RCW 90.03.345. Ecology plans to use the minimum instream flows established by the Rule to manage future water withdrawals from the Spokane River and aquifer. The Rule has no influence on Avista’s federal license.

20 No. 51439-7-II

Fish and Wildlife,

,

(2010). As part of our review, we must

consider the relevant portions of the agency’s rule-making file and the agency’s explanations for

adopting the challenged rule. Id. “Where there is room for two opinions, an action taken after due

consideration is not arbitrary and capricious even though a reviewing court may believe it to be

erroneous.” Hillis v. Dep’t of Ecology,

,

(1997).

As discussed above, review of Ecology’s rule-making file and explanations for adopting

the Rule shows that Ecology narrowly focused its Rule on only preserving fish habitat. Instead of

considering how the 850 cfs would affect other instream values, Ecology summarily concluded

that a flow protective of fish also protected other uses of the river. Nothing in the record supports

this conclusion. And the evidence before Ecology showed that the proposed flow would not be

adequate to support rafting, kayaking, and other recreational uses of the river. Ecology based the

850 cfs minimum instream flow on WDFW’s recommendation, but WDFW qualified its

recommendation as a “floor” to protect fish habitat, and he “would oppose lower flows, but not

higher summer flows.” AR at 14232, 13609.

An agency “must not act cursorily in considering the facts and circumstances surrounding

its actions.” Puget Sound Harvesters Ass’n,

. Ecology’s explanations for

establishing minimum instream flows based only on fish habitat studies without regard to how its

proposed flow would impact other instream values was arbitrary and capricious. Therefore, the

resulting Rule is invalid.

21 No. 51439-7-II

B. PUBLIC TRUST DOCTRINE

CELP also argues that Ecology violated the public trust doctrine by enacting the Rule

because the 850 cfs minimum instream flow will degrade the public interest in the lands and water

of the state. We disagree.

“The public trust doctrine is an ancient common law doctrine” that recognizes the public

need for access to navigable waters. Chelan Basin Conservancy v. GBI Holding Co.,

,

(2018). The doctrine has always existed in Washington, and the policy is

partially expressed in article 17, section 1 of the Washington Constitution, which reserves state

ownership in the beds and shores of the state’s navigable waters. Rettkowski v. Dep’t of Ecology,

,

(1993). The state’s ownership of tidelands and shorelands is

comprised of two distinct aspects—its ownership interests, historically referred to as the jus

privatum, and its public authority interest, historically referred to as the jus publicum. Caminiti v.

Boyle,

,

(1987), cert. denied,

(1988).

As owner, the state has fee simple title to such lands and may convey title in any manner

that does not contravene the constitution. Id. However, “ [t]he state can no more convey or give

away this jus publicum interest than it can ‘abdicate its police powers in the administration of

government and the preservation of the peace.’” Id. at 669 (quoting Illinois Cent. R.R. Co. v.

Illinois,

,

,

(1892)). Thus, the doctrine precludes

the State from disposing of its interest in navigable waters in such a way that substantially impairs

the public’s right of access. Rettkowski,

. The Caminiti court adopted a two-

part inquiry to determine whether a challenged legislation violates the public trust doctrine: (1)

whether the state, by the questioned legislation, has relinquished its right of control over the jus

22 No. 51439-7-II

publicum and (2) if so, whether by doing so, the state has promoted the public interests in the jus

publicum, or else has not substantially impaired it.

.

CELP argues that the test articulated in Caminiti informs this court’s analysis as to whether

the Rule violates the WRA. We hold that it does not.

There are two problems with relying on the framework outlined in Caminiti here. First,

the Caminiti test informs whether the state has relinquished its right of control over the jus

publicum through legislation, not through a state agency’s administrative rulemaking authority.

“Second, the duty imposed by the public trust doctrine devolves upon the State, not any

particular state agency thereof.” Rettkowski,

. Our Supreme Court has repeatedly

held that Ecology’s enabling statute does not allow it to assume the public trust duties of the state

and regulate in order to protect the public. Postema v. Pollution Control Hearings Bd.,

,

(2000); Rettkowski,

. Because Ecology may not assume the

public trust duties of the state, it could not have “give[n] up control” over the jus publicum by

enacting the Rule at issue here. Br. of Appellant at 36.

Further, the Rettkowski court observed that the issue before it implicated Ecology’s

regulatory authority under a specific provision of the state water code.

. The

court held that the public trust doctrine “could provide no guidance as to how Ecology is to protect

those waters” because that guidance “is found only in the Water Code.”

. Our Supreme

Court later adhered to this analysis and declined to use the public trust doctrine as an additional

canon of construction for interpreting provisions of the state Water Code. R.D. Merrill Co., v.

Pollution Control Hearings Bd.,

,

(1999).

23 No. 51439-7-II

We similarly reject CELP’s claim that the public trust doctrine informs our analysis here.

As in Rettowski and R.D. Merrill Co., we need not resort to the public trust doctrine as an additional

canon of construction in light of the specific provisions at issue and the policies expressed in the

state water code.

C. RULEMAKING FILE

Finally, CELP challenges Ecology’s failure to include three14 documents detailing other

instream flow recommendations for the Spokane River in its administrative rule-making file. We

hold that CELP’s challenge fails.

The APA informs what documents must be contained within an agency’s rule-making file.

RCW 34.05.370. It must contain:

(a) A list of citations to all notices in the state register with respect to the rule or the proceeding upon which the rule is based;

(b) Copies of any potions of the agency’s public rule-making docket containing entries relating to the rule or the proceeding on which the rule is based;

(c) All written petitions, requests, submissions, and comments received by the agency and all other written material regarded by the agency as important to adoption of the rule or the proceeding on which the rule is based;

(d) Any official transcript of oral presentations made in the proceeding on which the rule is based or, if not transcribed, any tape recording or stenographic record of them, and any memorandum prepared by a presiding official summarizing the contents of those presentations;

14 CELP does not identify the specific documents it believes were improperly excluded from Ecology’s rule making file. Instead, it references the third section of its briefing in which it discusses various WDFW memos that were absent from the rule- making file. There, CELP explains that as part of the trial court proceeding, it moved to supplement the administrative record with three documents: (1) Ecology’s comments to FERC during Avista’s dam relicensing, (2) an April 23, 2007, memo from Beecher noting a peak habitat rearing of 1040 cfs at the Spokane gage, and (3) a June 30, 2004, document in which Beecher recommends a minimum discharge of 700 cfs at the Post Falls Dam.

24 No. 51439-7-II

(e) All petitions for exceptions to, amendment of, or repeal or suspension of, the rule;

(f) Citations to data, factual information, studies, or reports on which the agency relies in the adoption of the rule, indicating where such data, factual information, studies, or reports are available for review by the public, but this subsection (2)(f) does not require the agency to include in the rule-making file any data, factual information, studies, or reports gathered pursuant to chapter 19.85 RCW or RCW 34.05.328 that can be identified to a particular business;

(g) The concise explanatory statement required by RCW 34.05.325(6); and

(h) Any other material placed in the file by the agency.

RCW 34.05.370(2)(a)-(h).

This document retention requirement is critical because we review the validity of an agency

action “at the time it was taken.” RCW 34.05.570(1)(b). Without a complete agency rule-making

file, we would be unable to examine whether the agency acted within its authority or “without

regard to the attending facts and circumstances” in enacting the challenged rule. 15 Puget Sound

Harvesters Ass’n,

.

CELP argues that Ecology’s omission of certain documents from its rule-making file

undermines a reviewing court’s ability to examine whether the Rule was adopted through a process

of reason. But we find that the record before us is adequate for review.

15 Federal courts have emphasized the critical role a comprehensive rule-making record plays in evaluating the propriety of agency action. See, e.g., Fund for Animals v. Williams,

(2005) (noting that fair review of an agency action requires the reviewing court to have no more and no less information than the agency had when it made its decision); Walter O. Boswell Memorial Hosp. v. Heckler,

, 792 (1984) (“If a court is to review an agency’s action fairly, it should have before it neither more nor less information than did the agency when it made its decision.”)

25 No. 51439-7-II

We note that the documents at issue are in the record before us through CELP’s motion to

supplement the administrative record in the clerk’s papers. Thus, we are not without knowledge

of the information contained within these documents. And in reviewing these documents, we find

that they are not directly related to the agency action challenged here.

The three documents CELP contends Ecology should have included in its rule-making file

were created as part of Avista’s relicensing process, not as part of Ecology’s formal rulemaking

commenced in January 2014. CELP obtained these documents through a public records act request

that it sent to the WDFW, not to Ecology. And Ecology’s rule writers submitted declarations

stating that they did not have custody of these documents during the rule adoption process, nor did

they rely on them in setting minimum instream flows at 850 cfs.

CELP appears to argue that they were nonetheless relevant because it believes that Ecology

should have considered them as part of its rule making process. But RCW 34.05.370(2)(f) only

requires Ecology to include in its rulemaking file the data, factual information, studies, or reports

it relied upon in adopting the Rule. Thus, contrary to CELP’s assertion, Ecology was not required

to include these documents in its rule-making file.16

16 CELP repeatedly argues that omission of these documents from the rule-making file precludes “effective judicial review." Br. of Appellant at 39. This argument is puzzling because CELP simultaneously asks this court to evaluate the Rule, based on the record before this court, and to hold it invalid.

And even if we agreed that the documents were directly relevant to adoption of the challenged Rule, the remedy CELP seeks is not available. CELP seeks a “remand” of the Rule to Ecology for reconsideration based on a complete record. Br. of Appellant at 46. But this remedy is not applicable. If we conclude that a rule exceeds an agency’s statutory authority or is arbitrary and capricious, we invalidate the rule. See, e.g., Swinomish,

; Puget Sound Harvesters Ass’n,

.

26 No. 51439-7-II

CONCLUSION

The WRA provides that perennial rivers and streams “shall be retained with base flows

necessary to provide for preservation of wildlife, fish, scenic, aesthetic and other environmental

values, and navigational values.” RCW 90.54.020(3)(a). This statutory language does not allow

Ecology to establish minimum instream flows for the narrow purpose of protecting only one

instream value chosen by Ecology. Instead, the statute directs Ecology to meaningfully consider

a range of instream values and seek to preserve them to the fullest extent possible.

Because Ecology exceeded its statutory authority in adopting the Rule establishing

minimum summer instream flows of 850 cfs, we hold the Rule is invalid.

Lee, A.C.J We concur:

Sutton, J.

Martin, J.P.T.

27