HomeMy WebLinkAboutCOM2009-00082, 00083 Mitigation Hearing Example - COM Letters / Memos - 4/11/2008 Thomas M. Pors of Law Office of Thomas M. Pors Speaker 92a: 9
LEGAL AND PRACTICAL ISSUES IN MITIGATION
"WHAT WORKS AND WHAT DOESN'T"
By Thomas M. Pors
Law Office of Thomas NI. Pors
1700 Seventh Avenue, Suite 2100
Seattle,WA 98101
(206) 357-8570
tompors@comcast.net
• Manke Lumber v. Ecology, PCHB Nos. 96-102 through 96-106
(1996).
This case was decided prior to the adoption of RCW 90.44.055, and was the first
precedent in Washington relating to mitigation for ground water withdrawals from a
source other than another water right. The case relied extensively on Colorado
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precedent, including Giffen v. State of Colorado, 690 P.2d 1244 (Colo. 1984) and
R.J.A.,Inc. v. Water Users Ass'n of Dist. 6, 690 P.2d 823 (Colo. 1984), and
Southeastern Colorado W.C. Dist. V. Shelton Farms,Inc., 529 P.2d 1321 (Colo. 1975).
j Aquifer recharge resulting from vegetation removal cannot be considered
the basis for mitigating or offsetting a water right.
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i "A tree does not hold a water right. . . . The amount of ground water they
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suck up, and the amount of precipitation they intercept,is ever-changing. The water they
leave in the ground at any point in time is merely a portion of the ground water resource
that belongs to the people of the State, subject to the rights of prior appropriators. To say
fthat Manke can establish a water right for itself where none would otherwise exist,
` merely by cutting down trees,would be to gut the statutory scheme by which the
i� Legislature has implemented the principle of first in time,first in right."
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Law Seminars International I Washington Water Law 2008 1 04/11/08 in Seattle, WA
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Port Blakely Tree Farm v.Ecology
P POLLUTION CONTROL HEARINGS BOARD
STATE OF WASHINGTON
PORT BLAKELY TREE FARMS, LTD., )
PCHB No. 96-66
Appellant, )
V. )
ORDER ON MOTION FOR
STATE OF WASHINGTON, ) SUMMARY JUDGMENT
DEPARTMENT OF ECOLOGY, )
Respondent, )
and )
)
THE TULALIP TRIBES OF )
WASHINGTON, )
Respondent-Intervenors. )
I. BACKGROUND
On January 8, 1996, the Washington State Department of Ecology ("Ecology") issued
orders denying water right application G1-27548, filed by Port Blakely Tree Farms Limited
Partnership ("Port Blakely") for its Ames Lake Plat. Port Blakely timely appealed to the
Pollution Control Hearings Board ("Board").
In response to earlier threshold motions for summary judgment by various parties to water
rights appeals, the Board held consolidated briefings and hearing on June 27, 1996, and issued a
written Order on Motions for Summary Judgment on July 16, 1996, which order resolved a
number of issues in the St. Andrews appeal, and is the law of this case.
On November 25, 1996, Ecology filed a motion for summary judgment or in the
alternative motion in limine. On November 30, 1996, Port Blakely filed a cross-motion for
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Port Blakely Tree Farm v.Ecology
summary judgment. With regard to the present motions for summary judgment, the Board
considered the following:
1) Ecology's Motion for Summary Judgment or in the Alternative Motion in Limine and
Memorandum in Support of Motion for Summary Judgment or in the alternative Motion in
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Limine, dated November 25, 1996, and Written Testimony of Tom Culhane Re: Snoqualmie
Subbasin, dated November 13, 1996;
2) Port Blakely's Cross-Motion for Summary Judgment and Memorandum in Support of
Port Blakely's Cross-Motion for Summary Judgment, dated November 30, 1996, Declaration of
John Adams, and Expert Testimony of Steve Germiat, dated November 18, 1996;
3) Port Blakely's original notice of Appeal;
4) the Board's file on the Port Blakely appeal; and
5) the Board's Order on Motions for Summary Judgment dated July 16, 1996, including
the Board's file concerning motions for summary judgment filed by Coordinated Appellants
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Group, the Center for Environmental Law and Policy, the Tulalip Tribes, and the Muckleshoot
Tribe, including all legal memoranda and declarations filed in support thereof.
B. FINDINGS
Having considered all of the above, the Board finds that there are no issues of material
fact because Port Blakely has not disputed that its proposed withdrawal is in hydraulic continuity
with the Snoqualmie River, which is tributary to the Snohomish River.
Based on the above finding, the Board makes these
C. CONCLUSIONS OF LAW
1. On July 16, 1996, the Board issued an order determining threshold issues related to a
large number of water right appeals. That decision is the law of this case and is binding on Port
I Blakely. Port Blakely participated in the briefing and argument leading to the threshold
decision. A number of issues raised in this case are resolved by the Board's Order on Motions
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Port Blakely Tree Farm v.Ecology
for Summary Judgment, to wit:
a) Ecology may deny a groundwater application if necessary to protect minimum
instream flows in a surface water with which that groundwater is in hydraulic continuity (Issue
No. 4);
b) Hydraulic continuity is a scientific fact which, once established in any degree,
need not meet any further standard or test to be given full credit in Ecology's water allocation
decisions; it is not necessary for there to be a measurable effect on the surface water (Issue No. 5);
c) Ecology may not approve an application for groundwater which would impair
existing rights, including instream flows (Issue No. 11).
2. With regard to the issues related to impairment of senior rights, the Board concludes
that the proposed withdrawal is in hydraulic continuity with the Snoqualmie River and the
Snohomish River, surface water sources which are subject to minimum instream flows that are
not being met. As a matter of law, Ecology may not grant an application to withdraw
groundwater, for consumptive use, which is in hydraulic continuity with a surface water in which
minimum instream flows set by rule are not being met. Cedar River Water & Sewer District v.
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Ecology, PCHB Nos. 96-59 & 60 (1996).
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3. With regard to the issues over whether Port Blakely's proposed withdrawal would
I return the same or more water to the ground than would result if the property remained in an
undeveloped state, and whether mitigation measures proposed by Port Blakely would alleviate
any detrimental impact to surface waters, the Board concludes, as a matter of law, that Ecology
may not consider the mitigating effect of any reduction in water used by vegetation resulting
from the replacement of trees with other vegetation at-its site. The water that vegetation leaves in
the ground at any point in time is a portion of the groundwater resource that belongs to the people
of the State, subject to senior rights, including instream flows. Manke Lumber Co. v. Ecology,
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Port Blakely Tree Farm v.Ecology
PCHB No. 96-102 et seq. (1996). Further, the Board concludes as a matter of law, that an"
applicant is not entitled to apply any return flow from septic systems grits site to mitigate against
its proposed groundwater withdrawal: Cedar River Water & Sewer District v. Ecolo;;y, PCHB
Nos. 96-59 & 60 (1996).
4. Having considered all of the above, the Board concludes that Port Blakely has failed to
establish the existence of a genuine issue of material fact regarding hydraulic continuity or any
other issue, and that Ecology is entitled to judgment as a matter of law. Accordingly, summary
judgment should be granted to Ecology.
Accordingly, we enter the following
ORDER
j The motion for summary judgment brought by Ecology is GRANTED.
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Judgment is entered for Ecology and against Port Blakely on PCHB appeal No. 96-66
DATED this 5th day of February, 1997.
POLLUTION CONTROL HEARINGS BOARJD
JAMES A. TUPPER, JR., Presiding
RICHARD C. KELLEY, Chairman
ROBERT V. JENSEN, Member
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