Burbank Irrigation Dist. #4 v. Wash. Dep't of Ecology

534 P.3d 833

BURBANK IRRIGATION DISTRICT #4; City of Pasco; Franklin County Water Conservancy Board; and Columbia-Snake River Irrigators Association, Respondent,

v.WASHINGTON DEPARTMENT OF ECOLOGY, Washington Pollution Control Hearings Board, Appellant.

No. 38897-2-III

Court of Appeals of Washington, Division 3.

Filed August 17, 2023

Alan Myles Reichman, Office of the Attorney General of Washington, P.O. Box 40117, Olympia, WA, 98504-0117, Joshua Osborne-Klein, Office of the Attorney General of Washington, P.O. Box 40117, Olympia, WA, 98504-0001, for Appellant.

James Laurence Buchal, Murphy & Buchal LLP, P.O. Box 86620, Portland, OR, 97286-0620, Lisa M. Petersen, Office of the Attorney General of Washington, 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, for Respondent.

Adam Waldon Gravley, Jenna Rose Mandell-Rice, Rachael Lipinski, Van Ness Feldman LLP, 1191 2nd Ave., Ste. 1800, Seattle, WA, 98101-2996, for Amicus Curiae on behalf of Washington Water Utilities Counsel.

Margaret Vail Franquemont, Attorney at Law, 506 Wells Ave., S., Renton, WA, 98057-2702, for Amicus Curiae on behalf of Center for Environmental Law & Policy (CELP).

PUBLISHED OPINION

Staab, J. ¶ 1 Burbank Irrigation District #4 applied to the Franklin County Water Conservancy Board (Conservancy Board) to amend one of its water rights certificates. Burbank sought the amendment to facilitate the sale of some of its water rights to the city of Pasco. The Conservancy Board granted the application conditioned on approval by the Department of Ecology. Ecology denied the application, and Burbank, joined by Pasco, the Conservancy Board, and Columbia-Snake River Irrigators Association (collectively Burbank), appealed Ecology's decision to the Pollution Control Hearings Board (PCHB). The PCHB granted Ecology's motion on summary judgment, concluding that the amendment and transfer would result in enlarging the water rights conveyed by the certificate. Burbank then appealed the decision to the superior court, which reversed PCHB's order on summary judgment and granted summary judgment for Burbank, overturning the decisions of Ecology and the PCHB and reinstating the Conservancy Board's decision.

¶2 Ecology appeals, arguing the superior court erred in: (1) reversing the PCHB's denial of the application to transfer because the transfer would have resulted in an unlawful enlargement of the water right, (2) addressing issues not decided by the PCHB, (3) granting summary judgment to Burbank on the issue of the validity of Irrigation District's right, and (4) granting summary judgment to Burbank on the issue of whether the transfer was in the public interest.

¶3 We hold that there are genuine issues of material fact concerning the scope and characteristics of rights conveyed by the certificate. Both the PCHB and the superior court erred in deciding this disputed factual issue on summary judgment. Additionally, in its appellate capacity, the superior court erred in deciding factual and legal issues beyond those determined by the PCHB and entering judgment in favor of Burbank. We affirm the superior court's order reversing the PCHB's order on summary judgment, but reverse the remainder of the superior court's orders on summary judgment in favor of Burbank. We remand to the PCHB for additional proceedings.

BACKGROUND

¶4 Because this issue was decided on summary judgment, the following facts are set forth in the light most favorable to the nonmoving party at the PCHB level, Burbank.

1. WATER LAW BACKGROUND

¶5 A general summary of Washington water law is helpful in understanding the relevance of specific facts in this case. A more comprehensive background is provided by the Supreme Court in Cornelius v. Dept. of Ecology , 182 Wash.2d 574, 344 P.3d 199 (2015).

¶6 Washington water rights are established under a prior appropriation system of " ‘first in time ... first in right’ " that was formally recognized by our legislature in 1917. Id. at 586, 344 P.3d 199 (quoting LAWS OF 1917, ch. 117, § 1). "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. ¶7 The prior appropriation system is balanced by a regulatory permit system that prioritizes competing beneficial uses of the state's waters. Id. Those wishing to obtain new water rights submit applications to Ecology. If Ecology determines that water is available for beneficial use, it issues a permit. RCW 90.03.290(1), (3).

¶8 "Permits represent inchoate water rights, which are not choate (i.e., vested) until perfected." Cornelius , 182 Wash.2d at 586, 344 P.3d 199 (citing Lummi Indian Nation v. State , 170 Wash.2d 247, 253, 241 P.3d 1220 (2010), and RCW 90.03.330 ). To perfect this right, the holder of the permit must act with reasonable diligence to develop the water system and beneficially use the water. Id. Once perfected, the water rights holder is entitled to a water rights certificate. Id. (citing RCW 90.03.330 ).

2. BURBANK'S WATER RIGHTS PORTFOLIO

¶9 Burbank Irrigation District serves municipal water to the city of Burbank and surrounding areas. Burbank's portfolio of groundwater water rights is held in four ground water certificates. The first certificate, certificate No. 2272A, received in 1955, granted Burbank the use of 100 gallons per minute (GPM) and 134 acre-feet per year (AFY), to serve a population that was expected to reach 600 by 1960.¹ The second certificate, Number 3206-A, was received in 1958 and granted Burbank the use of an additional 250 GPM and 90 AFY. The third certificate, G3-25422C, received in 1979, granted an additional 400 GPM and 392 AFY to serve an anticipated population of 1,000 by 1997. By 1979, Burbank owned a total of 750 GPM and 616 AFY.

¶10 In 1980, Burbank applied to Ecology for a fourth certificate. The application explained that Burbank was experiencing nitrate and fluoride problems with existing wells. To solve this problem, Burbank proposed drilling a new well and blending the water retrieved from the new well with water retrieved from the older wells. The application sought to increase the instantaneous rights from certificate G3-25422C from 400 GPM to 750 GPM and add an additional 500 GPM for the new well. The combined 1,250 GPM would be used to serve 165 homes and an estimated population of 1,000 by the year 2000. The application did not seek to add to or increase Burbank's annual quantity of water.

¶11 In 1981, Ecology issued permit G3-26578 to Burbank for 1,250 GPM, 616-AFY "LESS all the water withdrawn under Ground Water Certificates Nos. 2272, 3206 and 03-25422C [sic]." Clerk's Papers (CP) at 13. The 1980 report of examination issued with the permit states that the total amount of water authorized to be withdrawn under existing certificates (Nos. 2272, 3206 and G3-25422C) was 750 GPM, 616 AFY and that the "annual quantity of 616 acre feet per year ([Burbank's] existing right) is sufficient for the anticipated expansion." Id. The report indicates that the additional instantaneous amount was intended to "alleviate the high nitrate concentration ... [and] will be mixed to insure [sic] that the resultant comingled waters have nitrate and fluoride concentrations below the State Board of Health limits." Id. The water withdrawn under permit G3-26578P was allowed from any or all of Burbank's three wells, two shallower existing wells, and one new well to be drilled into the lower basalt aquifer. Id.

¶12 Ecology issued certificate G3-26578C on this permit in 1983. Similar to the permit, the certificate authorized Burbank to withdraw 1,250 GPM and 616 AFY less the amount of water withdrawn under Burbank's three other certificates.

3. ECOLOGY'S GUIDANCE POLICY

¶13 In 2006, Ecology issued publication 20-11-0165, Use of Terms that Clarify Relationships between Water Rights (Guidance Policy), which defined specific terms and clarified relational water rights. Within the Guidance Policy, Ecology acknowledged that its use of several terms had been vague and inconsistent over the years. The Guidance Policy was intended to provide clear terminology and guidance to Ecology staff when interpreting and administering original and subsequent water rights.

¶14 Historically, relational water rights had been described as primary or supplemental. But the Guidance Policy advised staff to discontinue using the term "supplemental" because the term was too vague. Instead, staff should describe relational rights as additive, non-additive, primary, standby, and alternate.

¶15 The Guidance Policy provided definitions for these terms. An "[a]dditive" water right was defined as a "water right for either annual or instantaneous quantities of water that are added to an existing water right." CP at 295. A "non-additive" right was described as a water right that did not "increase the water available in existing water rights." CP at 296. "Primary water right" was defined as a right that "must be used to the fullest extent possible before a standby/reserve water right can be exercised." CP at 296. While "standby/reserve" water rights could "only be used when the primary water right goes unfilled or cannot satisfy an authorized use during times of drought or other low flow periods," an "alternate" right was equal to and could be used as an alternate to another water right:

A water right that can be used either instead of, or simultaneously with, another water right. Alternate rights authorize a substitute point of diversion or withdrawal under a second water right to meet or augment an existing water right. The water user is allowed to determine which right to use. An alternate water right generally does not have an annual quantity that is additive to other water rights, and can have an instantaneous quantity that is either additive or non-additive depending on the needs of the project. Alternate water rights are typically associated with municipal water

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