## Facts

- James D. Hubbard and John H. Hubbard owned orchard property in Wagonroad Coulee near the Okanogan River and sought to use groundwater wells for irrigation and frost protection.
- James Hubbard bought about 180 acres in 1987, drilled a test well about 4,000 feet from the river, and applied in 1990 for a groundwater permit.
- John Hubbard held an unconditional 1979 permit for a well about 5,700 feet from the river and later applied to increase his permitted withdrawal; he used water under a temporary authorization during processing.
- The Department of Ecology investigated hydrogeologic conditions, including aquifer information and well data, and concluded Wagonroad Coulee groundwater had significant hydraulic continuity with the Okanogan River.
- Under Okanogan River instream-flow rules, Ecology conditioned the Hubbards’ permits so pumping must stop when the Okanogan River falls below regulatory minimum instream flows.
- The Pollution Control Hearings Board upheld the conditions, the superior court affirmed, and the Hubbards appealed.

## Issues

1. Whether substantial evidence supported the finding of significant hydraulic continuity between Wagonroad Coulee groundwater and the Okanogan River.
2. Whether Ecology had authority under the Okanogan instream-flow rules to condition groundwater permits on compliance with minimum instream flows when significant hydraulic continuity exists.
3. Whether the permit conditions were arbitrary or capricious under administrative-law review standards.

## Decision

- The Court of Appeals affirmed the superior court and the Pollution Control Hearings Board.
- Substantial evidence supported the finding of significant hydraulic continuity between the coulee aquifer and the river.
- Ecology properly applied the governing rules to require minimum-flow-based conditions on groundwater permits where hydraulic continuity is found.
- The conditions were not arbitrary or capricious because Ecology followed the regulatory framework and relied on technical evidence.

## Legal Principles

- Where groundwater is significantly hydraulically connected to a surface water body with established minimum instream flows, Ecology may require groundwater withdrawals to be conditioned on maintenance of those minimum flows.
- On judicial review of agency action, factual findings are upheld if supported by substantial evidence; courts do not reweigh competing technical opinions.
- Agency action is arbitrary or capricious only if it is willful and unreasoning and taken without regard to the relevant facts and circumstances.
- In evaluating impairment to existing rights during permitting, Ecology may make tentative determinations concerning senior water rights as part of its decisionmaking.

## Conclusion

The court upheld Ecology’s conditioning of groundwater permits to protect minimum instream flows when technical evidence showed the groundwater source was significantly connected to the Okanogan River, and it sustained the agency’s action under substantial-evidence and arbitrary-or-capricious review standards.


Hubbard v. Dep’t of Ecology, 86 Wash. App. 119, 936 P.2d 27 (Wash. Ct. App. 1997)