Authored by Jason T. Morgan of Stoel Rives LLP

In Northwest Sportfishing Industry Association v. Washington Department of Ecology (pdf), the Washington Court of Appeals concluded that the Washington State Department of Ecology (“Ecology’) properly denied a petition for rulemaking under Washington’s Administrative Procedure Act (“APA”) regarding water quality standards for the Columbia River.  This was the third petition by similarly situated petitioners seeking to force the Ecology to relax water quality standards on the Columbia River, with the goal that such relaxed standards would allow the federal agencies to spill more water over Columbia River dams for the intended benefit of migrating salmon.  The Court of Appeals confirmed that Ecology’s denial of the petition — which was informed, in part, by potential adverse consequences on aquatic organisms due to increased spill — was not arbitrary or capricious.

BACKGROUND

This case stemmed from a longstanding controversy over the operation of the Federal Columbia Hydropower System (“FCRPS”) and its impact on salmon and steelhead listed as threatened or endangered under the Endangered Species Act.  For several years now, the agencies operating the FCRPS have been required to spill water over the dams – that is pass water through the dams without generating power – in order to increase flows on the Columbia River for the benefit of migrating salmon. 

The amount of spill allowed is effectively capped by state water quality standards.  The process of spilling water over the dams also has the effect of supersaturating the water with gas.  Pursuant to the requirements of the Clean Water Act, Ecology has imposed limits on the levels of total dissolved gas (“TDG”) necessary to protect aquatic organisms in the river.  This TDG limit has effectively formed a cap on the level of spill at the dams.

Believing that more spill would benefit migrating salmon, and that more TDG would not seriously harm aquatic organisms in the Columbia River, a number of fishing and conservation groups filed several petitions for rulemaking with Ecology, asking the Agency to raise the TDG gas cap to allow more spill.  Ecology ultimately declined to engage in rulemaking, finding that raising the TDG gas cap could have some marginal benefits to certain migrating salmon populations, but that it could also have serious negative impacts on other aquatic organisms. 

Northwest Sportfishing and others appealed from the denial to the Thurston County Superior Court, arguing largely that Ecology had overlooked or misconstrued key studies, or had improperly exclusively relied on laboratory studies while ignoring field studies.  The superior court affirmed, finding that Ecology’s denial was not arbitrary and capricious. 

 The Court of Appeals affirmed.

ANALYSIS

• An agency’s decision to deny a petition for rulemaking is eligible for judicial review and relief under RCW 34.05.570(4)(c).
• Courts review an agency’s denial of a rulemaking petition to determine whether such denial is arbitrary or capricious, based on the record before the Agency.
• The court of appeals reviews the decision of the superior court in denying a petition for rulemaking de novo, by sitting in the same position as the superior court.
• The party seeking review of a denial of a petition for rulemaking bears the burden of showing the invalidity of the agency action.
• Neither the existence of contradictory evidence, nor the possibility of deriving a separate conclusion from the available evidence, renders an agency’s action arbitrary or capricious. 

Applying these principles, the Court of Appeals concluded that (a) Ecology neither failed to consider nor misinterpreted relevant studies; (b) Ecology did not rely exclusively on laboratory studies; and (c) Ecology did not act arbitrarily and capriciously in declining to change TDG standards in the absence of more definitive evidence.