Postema v. Pollution Control Hearings Board

The Department of Ecology (the department) denied multiple groundwater-appropriation permits based on the department’s determination that groundwater and surface-water sources were connected hydraulically, meaning that groundwater pumping could affect the flow and availability of surface water. In denying the permits, the department held that because the affected surface water sources were fully appropriated, including minimum flow rights that were not being met, the department could not allow added groundwater appropriation without interfering with established surface water rights. The permit applicants, including lead plaintiff John Postema (the permit applicants) (plaintiffs), challenged the department’s decision before the Pollution Control Hearings Board (the board) (defendant). The board upheld the department’s decision, finding that the hydraulic continuity between ground and surface waters barred further appropriation as a matter of law. The permit applicants then filed suit in the superior court. The superior court generally upheld the board’s decision but noted that the hydraulic continuity between groundwater and surface waters and minimum water flows were not issues of law but presented a factual question for the board to assess. The permit applicants appealed to the Washington Supreme Court, arguing that hydraulic continuity between groundwater and surface water alone was insufficient to deny the permits, nor was the mere existence of minimum surface flow rights a basis for denial. The supreme court consolidated the cases.