## Facts

- Okanogan County Public Utility District No. 1 (PUD) sought to restart hydroelectric generation at Enloe Dam on the Similkameen River after decades of inactivity.
- The project would divert water through a new powerhouse and return it to the river about 370 feet downstream, leaving a “bypass reach” between the dam and return point.
- Because the project required a federal license, it also required Washington Department of Ecology (Ecology) certification under Clean Water Act § 401.
- Ecology issued § 401 certification conditioned on minimum flows into the bypass reach to protect water quality, aquatic life, and aesthetics, with additional study contemplated and flows subject to later adjustment.
- Environmental organizations, led by Center for Environmental Law and Policy (CELP), appealed the § 401 certification to the Pollution Control Hearings Board (PCHB); the record included evidence that certain data collection would be dangerous and that more detailed study would occur later.
- The PCHB affirmed the § 401 certification and allowed Ecology to require further study and adjust minimum flows based on results.
- Ecology also issued a water-right Report of Examination and permit for the project, conditioned on compliance with the § 401 certification and on maintaining minimum instream flows in the bypass reach as determined after post-licensing study; the permit did not set a final numeric minimum flow.
- CELP appealed the water-right decision to the PCHB, arguing Ecology could not lawfully proceed without completed studies and definite instream-flow numbers and that Ecology violated statutes and regulations requiring minimum instream flows.
- The PCHB granted summary judgment to Ecology and the PUD, concluding a final water-right certificate could issue only after studies were completed and the permit amended to include resulting flow requirements; the superior court affirmed.

## Issues

1. Whether Ecology and the PCHB could lawfully issue and affirm a water-right permit and related approvals that deferred final minimum instream-flow determinations pending future study.
2. Whether the conditional, staged approach complied with Washington statutes and regulations governing minimum instream flows and protection of instream resources and water quality.
3. Whether the PCHB’s decision was arbitrary or capricious or otherwise contrary to law under standards of administrative review.

## Decision

- The Court of Appeals affirmed the superior court and the PCHB.
- Ecology lawfully issued, and the PCHB lawfully affirmed, a water-right permit and § 401 certification that required interim minimum flows and mandated further study with authority to adjust flows later.
- The court held that deferring final numeric instream-flow requirements was permissible where approvals were expressly contingent on future compliance and no final water-right certificate would issue until conditions were satisfied.
- CELP failed to show the agency action was arbitrary, capricious, or contrary to the governing statutory and regulatory framework.

## Legal Principles

- Washington’s water-right process is staged: application, investigation and Report of Examination, conditional permit, development and proof of appropriation, then final certificate confirming the perfected right.
- Ecology may issue conditional water-right permits that protect instream values and require future study, so long as enforceable conditions ensure compliance before final certification.
- Clean Water Act § 401 “reasonable assurance” may be satisfied through binding conditions (including interim requirements and required future monitoring and adjustments), not only by having complete data before certification.
- Courts reviewing PCHB decisions give deference to agency technical judgments and uphold decisions supported by the administrative record and consistent with law.

## Conclusion

The court upheld Ecology’s use of a conditional permitting structure that allowed hydroelectric relicensing and water-right permitting to proceed while requiring additional study and later adjustment of minimum instream flows, with final certification withheld until compliance with the resulting flow protections is ensured.


Ctr. for Env’t L. & Pol’y v. Wash. Dep’t of Ecology, 383 P.3d 608 (Wash. Ct. App. 2016)