The Washington State Court of Appeals ruled last week that the Department of Ecology appropriately conditioned the approval of a water right permit for the Public Utility District No. 1 of Okanogan County's (PUD) hydroelectric project on Enloe Dam.
The case revolved around the public interest test in RCW 90.03.290, and the application of the protection of aesthetics of public waters in RCW 90.54.020, as well as a previously-issued 401 Certification under the Clean Water Act. The Court of Appeals upheld the conditioned approval of the water right permit with a 5-year adaptive monitoring plan to evaluate the aesthetics of different flow levels over the dam and falls. Because the final flow levels necessary to protect aesthetics were not known at the time of permit issuance, the appellants (Center for Environmental Law and Policy, American Whitewater, and North Cascades Conservation Council) argued that Ecology did not have authority to approve the permit. The Court of Appeals disagreed. “We conclude that Ecology had authority to issue a ROE, and water permit, which was subject to a condition to ascertain information that was not available prior to proceeding with the Project. Ecology did not abuse its discretion in determining that the PUD's water permit should issue subject to the stated conditions.”
This is an important finding in water right permitting because not all conditions of a project can be known with clarity at the time of applying for a water right permit. Ecology’s ability to approve a permit, subject to verification of conditions or adaptation-provisions for changing conditions, is important authority to retain. A copy of the decision can be viewed at: https://www.courts.wa.gov/opinions/pdf/748416.pdf. Contact Dan Haller (509.895.5462) at Aspect Consulting with any questions.