## Facts

- Multiple applicants sought permits to appropriate groundwater from wells in Washington basins.
- The Washington Department of Ecology denied the applications after determining the proposed wells would draw groundwater in hydraulic continuity with nearby rivers and streams.
- The related surface waters were closed to further appropriation and/or subject to minimum instream flows that were not met at certain times.
- Ecology and the Pollution Control Hearings Board (PCHB) treated hydraulic continuity with closed or minimum-flow surface waters as a per se legal bar to new groundwater permits.
- The PCHB conducted bifurcated proceedings: (1) threshold issues common to many appeals and (2) individual hearings for each application, and it upheld Ecology’s denials.
- On judicial review, superior courts generally affirmed the threshold rulings; they affirmed denials in the Jorgensen consolidated matters and Black River Quarry, but remanded Postema for a new hearing.
- The Washington Supreme Court consolidated the appeals and reviewed both the threshold legal questions and the individual administrative records.

## Issues

1. Whether hydraulic continuity between groundwater and surface water that is closed to appropriation or subject to unmet minimum instream flows is, by itself, a sufficient legal basis to deny a groundwater permit under RCW 90.03.290.
2. Whether Ecology and the PCHB may treat hydraulic continuity as a matter of law equivalent to impairment of existing surface water rights without additional findings on timing and magnitude of effects.
3. Whether, despite an erroneous legal standard, the PCHB’s factual findings in the individual cases independently supported denial of the permits.

## Decision

- The court held that hydraulic continuity with surface water that is closed or subject to unmet minimum flows is not, by itself, a lawful basis to deny a groundwater withdrawal application.
- The court rejected the PCHB’s rule equating hydraulic continuity with impairment as a matter of law.
- The court affirmed the superior courts’ resolution of the threshold issues, while clarifying the proper legal standard for impairment determinations.
- In the individual cases, the court affirmed the superior court orders in Jorgensen and Black River Quarry upholding permit denials.
- The court affirmed the superior court’s remand in Postema for a new PCHB hearing applying the correct standard; it also indicated that factual findings in some matters could support denial notwithstanding the Board’s misstatement of the legal rule.

## Legal Principles

- RCW 90.03.290 requires a fact-based determination whether a proposed appropriation would impair existing water rights; impairment is not established solely by showing hydraulic continuity.
- Hydraulic continuity is a hydrologic condition that may be relevant evidence, but it does not create a conclusive presumption of legal impairment.
- Determining impairment requires findings on the timing and magnitude of the proposed withdrawal’s effects on connected surface waters, including impacts during periods when minimum instream flows are critical.
- Minimum instream flows adopted by rule are protectable water rights with priority dates that must be considered and protected in the permitting process.
- An agency’s articulation of an erroneous legal rule does not require reversal where the agency’s factual findings, applied under the correct standard, support the same outcome.

## Conclusion

The Washington Supreme Court held that connected groundwater and surface water must be evaluated through a fact-specific impairment analysis under RCW 90.03.290, and that hydraulic continuity alone does not automatically bar groundwater permits, while largely affirming the outcomes of the consolidated permit denials and requiring a corrected hearing approach in Postema.


Postema v. Pollution Control Hearings Bd., 142 Wash. 2d 68, 11 P.3d 726 (Wash. 2000)