Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       67549-0
Title of Case:       John Postema
                     v.
                     Pollution Control Hearings Board, et al
File Date:           10/19/2000
Oral Argument Date:  03/01/2000


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Snohomish County
Docket No:      97-2-00979-9
Judgment or order under review
Date filed:     12/31/1998
Judge signing:  Hon. Charles S. French


                                    JUSTICES
                                    --------
Authored by Barbara A. Madsen
Concurring: Richard P. Guy
            Charles Z. Smith
            Charles W. Johnson
            Gerry L. Alexander
            Philip A. Talmadge
            Faith E Ireland
            Bobbe J. Bridge
Dissenting: Richard B. Sanders


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Richard M. Stephens
            2101 112th Ave NE Ste 110
            Bellevue, WA  98004-2944

            Charles A. Klinge
            Groen Stephens & Klinge Llp
            2101 112th Ave NE Ste 110
            Bellevue, WA  98004-2944

Counsel for Respondent(s)
            Jean M. Wilkinson
            Assistant Atty General
            1125 Washington St SE
            PO Box 40100
            Olympia, WA  98504-0100

            Deborah L. Mull
            Assistant Attorney General
            2425 Bristol Ct SW Fl 2
            PO Box 40117
            Olympia, WA  98504-0117

            Mason D. Morisset
            Morisset Schlosser Ayer...
            1115 Norton Bldg
            801 2nd Ave
            Seattle, WA  98104-1576

Counsel for Other Parties
            Charles W. Lean
            1110 Capitol Way S #405
            Olympia, WA  98501-2251

Dissent by Sanders, J.

No. 67549-0

SANDERS, J. (dissenting)--Still waters run deep; deeper, I think, than the
majority cares to measure with the analytical tools at its disposal.
On the surface the majority's analysis seems to make sense: when there is
no more surface water available because of preexisting rights or designated
minimum flows, groundwater withdrawal permits must be denied if they
adversely 'impact' preexisting rights.  So far so good; however the
majority superficially assumes any diminution of surface water, however
slight or even de minimis, constitutes an adverse 'impact' if it is
'measurable.'  By 'measurable,' however, the majority does not mean
quantifiable but rather 'qualifiable,' i.e., a mere determination that
there is some, perhaps to an unknown degree, diminution in surface flow.
Thus, according to the majority, a well water permit should be denied when
we can say with scientific certainty that as little as a thimbleful, or
even a molecule, of water would be diverted from the surface flow.
There are at least two fundamental faults buried deeply beneath the surface
of this thinking: (1) the statute doesn't say that and (2) we cannot
rationally apply a standard with greater precision than the standard
itself.
I also question dismissal of Postema's due process and equal protection
claims on the ground they are 'premature.'  Such claims 'mature' when a
final action takes place, there being no requirement in the law that any
person so deprived must exhaust a judicial appeal as a condition precedent
to seeking relief under 42 U.S.C. sec. 1983.
I.  Meaning of 'impairment'
RCW 90.03.290 provides as condition precedent to granting a permit to
appropriate surface water 'the application will not impair existing
rights . . . .'  (Emphasis added.)  The statute also provides, 'But where
there is no unappropriated water in the proposed source of supply, or where
the proposed use conflicts with existing rights, or threatens to prove
detrimental to the public interest, having due regard to the highest
feasible development of the use of the waters belonging to the public, it
shall be the duty of the department to reject such application . . . .'
RCW 90.03.290 (emphasis added).  RCW 90.44.060 makes the surface water
appropriation statute applicable to withdrawals of groundwater.
Therefore we must first determine under what circumstances a withdrawal of
groundwater 'impairs' preexisting surface water rights, particularly
previous minimum flow determinations published by the Department of
Ecology, in order to determine when a withdrawal permit should be granted
or denied.  The majority does not consider this question, only assumes its
answer.
The majority purports to facially disagree with the position taken by the
Department of Ecology that mere hydraulic continuity between the
groundwater and the contiguous surface water is sufficient unto itself to
establish the requisite impairment; however it rejects Postema's claim that
surface water flow be necessarily measurable, in a quantifiable sense, by
flow measuring devices which are accurate only within five percent.
Unlike the majority, I would look to the statute to determine what the
Department of Ecology must demonstrate to prove an 'impairment' of existing
water rights so as to justify denial of the permit application.  Recall the
majority indicates even a de minimis1 effect on surface waters is
sufficient to establish 'impairment.'
{W}e hold that a proposed withdrawal of groundwater from a closed stream or
lake in hydraulic continuity must be denied if it is established factually
that the withdrawal will have any effect on the flow or level of the
surface water.'

Majority at 27-28 (emphasis added); see also Majority at 24.  Aside from
the fact RCW 90.03.290 does not say 'any,' the real question is what does
the term 'impairment' mean.  The majority assumes that any diversion of
surface water, no matter how slight, is an 'impairment' as long as it can
be measured.  As such, the majority adopts the thrust of the 'qualitative'
hydraulic continuity argument proffered by the Department of Ecology, which
is satisfied by the mere interaction between ground and surface water
resulting in the slightest diminution of the quantity of surface water
through pumping of groundwater.  In essence, the rule proffered by the
majority allows the Department of Ecology to deny a groundwater permit if
Ecology proves only a single molecule of surface water was lost to the
stream--assuming such a molecule is 'ascertainable,' although perhaps not
quantifiable, using the best available science.  See Majority at 23.
The majority admits the statutes at issue here--RCW 90.03.290 and 90.44.050-
-do not define the term 'impairment.'  Majority at 21.  Words that are not
statutorily defined must be given their ordinary and usual meaning.
Garrison v. Washington State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7
(1976).  We may also look to a dictionary for the definition.  State v.
Pacheco, 125 Wn.2d 150, 154, 882 P.2d 183 (1994).  Black's Law Dictionary
defines 'impair' as '{t}o weaken, to make worse, to lessen in power,
diminish, or relax, or otherwise affect in an injurious manner.'  Black's
Law Dictionary 752 (6th ed. 1990) (emphasis added).  Were we to accept this
definition, we must then ask: 'affect what?'
The answer to this question may be found in the general statement of public
purpose upon which the whole statute is based:
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. . . . Withdrawals
of water which would conflict therewith shall be authorized only in those
situations where it is clear that overriding considerations of public
interest will be served.

RCW 90.54.020(3)(a).  Reading 'impair' in the statutory context, with due
regard for the public policy to be advanced, we must conclude withdrawals
of water which do not conflict with the preservation of one or more of the
identified interests do not 'impair' existing water rights or base flows.
Thus to justify denial of the permit, the Department of Ecology should be
required to demonstrate, for example, that there would be fewer fish as a
result of the withdrawal, or that navigable waters would be rendered
unnavigable because of the withdrawal, or that the watercourse would be
less 'aesthetically' pleasing because it would be perceptively different
before and after the groundwater withdrawal to the eye of the observer.
Conversely, withdrawal of an actual, measurable amount--such as a
thimbleful--which would have no demonstrable adverse effect (i.e.,
injurious effect on wildlife, fish, etc.), would not 'impair' preexisting
rights, and thus is no justification to deny the permit.
This approach is consistent with other provisions of the Water Code which
require the Department of Ecology to have 'due regard to the highest
feasible development of the use of the waters belonging to the public . . .
,' RCW 90.03.290, as well as a number of the interests stated in RCW
90.54.020(2), which include 'maximum net benefits for the people of the
state,' and maintenance of 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).
The majority compounds its erroneous interpretation of the statutory term
'impair' when it allows the Department of Ecology to deny a groundwater
withdrawal permit based upon the mere qualitative demonstration that it
will have some effect, however slight, on surface waters which have been
fully appropriated or are functioning at minimum flow.  See Majority at 25
('However, where minimum flows would be impaired, then an application must
be denied.').
The error with this approach is not only the failure to accord 'impair' its
statutory meaning but also the factual prospect (perhaps a subject for
remand) that standard measuring equipment with a five percent tolerance was
used by the Department of Ecology to determine minimum flows and
preexisting rights in the first instance.  In that event deviations of
actual flow within the tolerance of stream measuring equipment will not
defeat preexisting rights or minimum flows designated by Ecology through
use of standard measuring equipment to five percent accuracy.
Instream flow regulations, and other rules which limit surface water
withdrawals in the Snohomish River basin, are published in the Washington
Administrative Code (WAC) chapter 173-507.  These rules establish instream
flows for 10 locations within the Snohomish River basin and authorize
control stations to measure such flows and regulate compliance.  See WAC
173-507-020(1) ('Instream flows are established for stream management units
with monitoring to take place at certain control stations as follows . . .
.') (emphasis added).  The control station number for each of the instream
flow control points is intended to correspond to a United States Geological
Survey stream gage number for the same location.  Ex. A-18 (Draft Initial
Watershed Assessment Water Resources Inventory Area 7 Snohomish River
Watershed 22 (Mar. 17, 1995)).  A witness for the Department of Ecology,
Mr. Linton Wildrick, acknowledged the limitations of standard measuring
equipment which are used to set these minimum flows and monitor compliance:
Measurement of streamflow reduction caused by ground water withdrawals is
very difficult and rarely attempted.  In most cases, a successful test
requires a well to be very close to the stream and to be pumped at a high
rate for an extended period.  This situation rarely occurs.  Unless the
well captures approximately five percent (5%) of the stream flow, the
effect cannot be accurately detected with standard measuring equipment.
Five percent of the flow of many streams exceeds the pumping rates of all
but the largest wells.  Consequently, such tests are rarely practical.  For
this reason, hydrologists usually estimate hydraulic properties based on
standard aquifer testing and then calculate or model stream flow effects
based on those properties.

Administrative R. at 236 (emphasis added) (Ecology's Br. in Resp. to Mots.
for Summ. J. re Statewide Issues, App. 2 (Decl. of Linton Wildrick)).
Because the accuracy of standard measuring equipment is limited to within
five percent, hydrologists 'measure' smaller effects of groundwater
withdrawal upon the flow of a particular stream by estimates and
theoretical modeling.  While this approach may be the 'standard
professional practice,' id. at 237, it nevertheless is intended to
guesstimate the withdrawal or diversion of such a small amount of water is
within the tolerance of existing minimum flows and preexisting rights which
the department is charged to protect.
Despite the obvious scientific approximation which yields a minimum flow
determination, the majority attributes a precision to the determination
beyond its nature, much like searching for Martian Canals with a pair of
binoculars:  'We also reject Postema's argument that a significant
measurable effect on stream flows is required . . . .  The statutes do not
authorize a de minimis impairment of an existing right.'  Majority at 24
(emphasis added).  The scope of the existing water right--minimum flows--is
not calculated to the centiliter but rather at best to the limits of
measuring devises actually used to quantify stream flow.  By disallowing
even an immeasurable effect on minimum flows, the majority approach injects
irrationality into the equation, requiring greater specificity than the
standard itself.2
Further, by allowing the Department of Ecology to deny a proposed
groundwater withdrawal because of an immeasurable effect on stream flows,
the majority disregards the statutory prerequisite to establish impairment
and ignores its own interpretation of this term of art.  See, e.g.,
Majority at 23 (Impact or effect of impairment must be ascertainable using
the best available science.).  If a particular groundwater withdrawal has
an immeasurable effect on stream flows, it cannot be said that such impact
is 'ascertainable'--even using the best available science.
In summary, the majority defines 'impairment' as any effect, no matter how
insignificant, on the quantity of surface water, even though there will be
no real life effect on any of the interests which the Water Code is
designed to protect.  However, a proper construction of the statute
requires a proposed withdrawal of groundwater from a closed stream or lake
in hydraulic continuity be denied only if it is established factually the
withdrawal will have an appreciable and material adverse effect on the
minimum flows necessary to provide for preservation of wildlife, fish,
scenic, aesthetic, other environmental values, or navigation.
Under such a formulation, it might be necessary to remand some of the cases
to the Pollution Control Hearings Board to determine if the facts meet the
statutory 'impairment' standard.  Of course, nothing forecloses Ecology
from presenting analysis or new evidence of impact on the minimum flows
necessary to meet the impairment standard at the time of the hearing upon
remand.  However, I posit a simple factual determination that groundwater
withdrawals would lower the groundwater table, without also quantifying the
effects on the surface water in terms of the interests the Water Code
protects, is insufficient to comply with the statute.
II.  Postema's constitutional claims
I also question affirming the superior court's dismissal of Postema's equal
protection and due process claims simply because his well water application
'is still pending administratively' as a result of a judicial remand.
Majority at 60.  In point of fact Postema already received a final
administrative determination which he challenged on judicial review, which
review has now resulted in a remand for further proceedings.
Like substantive due process claims, equal protection claims are actionable
when the wrongful action is taken.  Mission Springs, Inc. v. City of
Spokane, 134 Wn.2d 947, 964-65, 954 P.2d 250 (1998); see also Rutherford v.
City of Berkeley, 780 F.2d 1444, 1447 (9th Cir. 1986) (substantive due
process violated at moment harm occurs); Sintra, Inc. v. City of Seattle,
119 Wn.2d 1, 21 n.11, 829 P.2d 765 (1992) ('{A}n action for a violation of
substantive due process is ripe immediately . . . because the harm occurs
at the time of the violation.'); Cox v. City of Lynnwood, 72 Wn. App. 1, 8,
863 P.2d 578 (1993) (substantive due process is violated at the moment harm
occurs).  Accordingly, what we are looking for is a final decision by the
administrative decision-maker, not exhaustion of administrative remedies or
appeals.  See Sintra, 119 Wn.2d at 32 (Utter, J. concurring) ('{F}inality
would not have required appeals, for example, to the Board of Zoning
Appeals.' (citing Williamson County Reg'l Planning Comm'n v. Hamilton Bank,
473 U.S. 172, 193 (1985))).  Here, Postema obtained a final and adverse
decision from the administrative decision-maker.  At that point his cause
of action accrued for violation of his civil rights--whether or not he
chose to appeal.  The fact that he did appeal, and obtained a remand to the
Board, does not remedy the earlier violation of his civil rights, if there
was one.  Not surprisingly, the majority fails to cite any authority to
contradict the well-settled principle that such civil rights claims are
ripe at the time the wrongful action is taken.
In the context of this case the error may seem less than significant;
however it is an ill-considered precedent which will play havoc with that
great body of law essential to protect and remedy civil liberty
deprivations.
Again without citation to authority, the majority summarily concludes
'{b}ecause the equal protection claim is premature, the sec. 1983 claim was
also properly dismissed by the superior court as premature.'  Majority
at 61.  But Supreme Court precedent clearly holds exhaustion of state
administrative remedies is not required before a litigant may have a cause
of action pursuant to 42 U.S.C. sec. 1983.  Zinermon v. Burch, 494 U.S.
113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) ('{T}he
constitutional violation actionable under sec. 1983 is complete when the
wrongful action is taken.'); see also Monroe v. Pape, 365 U.S. 167, 183, 81
S. Ct. 473, 5 L. Ed. 2d 492 (1961) ('It is no answer that the State has a
law which if enforced would give relief.  The federal remedy is
supplementary to the state remedy, and the latter need not be first sought
and refused before the federal {remedy} is invoked.'), overruled on other
grounds by Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978); Patsy v. Board of Regents, 457 U.S. 496,
516, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982); Felder v. Casey, 487 U.S.
131, 147, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988).
Accordingly, the majority erroneously affirms dismissal of Postema's civil
rights action, a dismissal clearly contrary to binding precedent.
Conclusion
The majority disregards the ordinary and usual meaning of the term
'impairment' to hold even the slightest effect on surface flows justifies
denying a groundwater withdrawal permit application.  This approach defeats
the meaning of the term 'impairment' within its statutory context to the
prejudice of the public purpose upon which the entire statute is expressly
based.  When impairment is given its ordinary and usual meaning, and read
in its statutory context, withdrawals of water which do not conflict with
the preservation of the statute's identified interests do not 'impair'
existing water rights or minimum flows.  Moreover, we cannot rationally
apply a standard with greater precision than was used to create the
standard in the first place.  I would therefore remand these cases to the
Pollution Control Hearings Board for further proceedings to properly apply
the correct standard.
I would also reverse the superior court's dismissal of Postema's equal
protection and due process claims.  Once Postema obtained a final and
adverse decision from the administrative decision-maker he was entitled to
seek redress for the violation of his rights without regard to the prospect
or outcome of judicial review.  The majority clearly errs.
For these reasons I dissent.

1 Barron's Law Dictionary defines 'de minimis' as:  'insignificant; minute,
frivolous.  Something or some act which is 'de minimis' in interest is one
which does not rise to a level of sufficient importance to be dealt with
judicially.'  Barron's Law Dictionary 128 (3d ed. 1991).
2 Arguably the accumulation of such de minimis diversions might at some
point reach a level measurable in the stream using the same equipment used
to set the standard in the first place; however that is the cumulative
impact issue not addressed by the majority.  See Majority at 20.  But since
our system is based on priorities it would seem, as Postema argues,
projected cumulative impacts from other hypothetical future users would not
serve as a lawful statutory basis to deny a permit to a current applicant
whose application, if granted, would not violate the standard.