Center for Environmental Law and Policy v. Washington Department of Ecology

The Enloe Dam produced power on the Similkameen River until 1958. Fifty years later, the county public-utility district (PUD) sought to resume hydroelectric operations. The project would divert water from the dam through a new powerhouse, then return water to the river 370 feet downstream just below Similkameen waterfall. The stretch where the water would be diverted was the “bypass reach.” The Federal Energy Regulatory Commission license to construct the project required the Washington Department of Ecology (Ecology) (defendant) to approve a Clean Water Act (CWA) certification providing a “reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards.” Ecology conditioned its assurance on requiring PUD to initially release water at the dam base at specific minimum rates for aesthetic purposes, fish, and other aquatic life. Essentially PUD had to keep enough water flowing through the reach to avoid the water warming and harming fish, plus keep the falls beautiful. The Center for Environmental Law and Policy and other organizations (collectively, CELP) (plaintiffs) appealed the certification. Evidence and testimony suggested flows could not be manipulated under existing conditions and collecting data was dangerous because of the existing water velocity. The Pollution Control Hearings Board (PCHB) affirmed the certification conditioned on further study and adjustment of flows as needed. Ecology issued a report of examination approving a water right for the project, conditioned on maintaining whatever minimum flows the future study found adequate, and the PCHB affirmed the report. CELP again appealed, asserting PCHB could not affirm when studies were incomplete and the report did not require minimum instream flows as Washington Administrative Code required. PCHB granted PUD and Ecology summary judgment and concluded a water-right certificate would issue when the study was completed and the permit amended. CELP petitioned for review, and the county court affirmed. CELP appealed.