Whatcom County v. W. Wash. Growth Mgmt. Hr'gs Bd. ( 2016 )

This opinion was filed for record
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l~l CLt:RKS OFFICE
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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
WHATCOM COUNTY, a municipal )
corporation, )
) No. 91475-3
Respondent, )
) En Bane
ERIC HIRST, LAURA LEIGH BRAKKE; )
WENDY HARRIS; DAVID STALHEIM; and )
FUTUREWISE, ) Filed __O_f'_T_0_6_2_0_16
. __
)
Petitioners, )
)
WESTERN WASHINGTON GROWTH )
MANAGEMENT HEARINGS BOARD, )
)
Defendant. )
)
WIGGINS, J.-We granted review of this challenge to the Western Washington
Growth Management Hearings Board's (Board) decision on the validity of Whatcom
County's (County) comprehensive plan and zoning code under the Growth
Management Act (GMA or Act), chapter 36.70A RCW. The County argues that the
Board's conclusions are based on an erroneous interpretation of the law and asks us
to hold that the County's comprehensive plan protects the quality and availability of
water as required by the GMA.
Whatcom County, Hirst (Eric) v: W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
We reject the County's arguments. The GMA requires counties to ensure an
adequate water supply before granting a building permit or subdivision application.
The County merely follows the Department of Ecology's "Nooksack Rule"; 1 it assumes
there is an adequate supply to provide water for a permit-exempt well unless Ecology
has expressly closed that area to permit-exempt appropriations. This results in the
County's granting building permits for houses and subdivisions to be supplied by a
permit-exempt well even if the cumulative effect of exempt wells in a watershed
reduces the flow in a water course below the minimum instream flow. We therefore
hold that the County's comprehensive plan does not satisfy the GMA requirement to
protect water availability and that its remaining arguments are unavailing. We reverse
the Court of Appeals in part and remand to the Board for further proceedings.
FACTS
I. Factual History
This case is the latest step in a series of disputes concerning the County's land
use regulations. The history is only summarized here; a detailed history of the disputes
is contained in our 2009 opinion, Gold Star Resorts, Inc. v: Futurewise, 167 Wash. 2d
723, 726-33, 222 P.3d 791 (2009). In Gold Star Resorts, we considered several
challenges under the GMA to the County's comprehensive plan-specifically,
challenges to provisions regarding limited areas of more intensive rural development
and rural densities. We agreed with the Board and directed the County to revise its
comprehensive plan in order to conform to the 1997 amendments to the GMA. /d. at
740.
1 The Nooksack Water Resource Inventory Area, chapter 173-501 WAC.
2
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
In response to our ruling in Gold Star Resorts and a series of subsequent board
rulings requiring the County to bring its comprehensive plan into compliance with the
GMA, the County amended its comprehensive plan and zoning code by adopting
Ordinance No. 2012-032. Ordinance No. 2012-032 was an effort to comply with the
GMA's requirement that the County's rural element include measures to protect
surface and groundwater resources. To accomplish this objective, the ordinance
amended the County's Comprehensive Plan Policies 200-2.C and -2.0, and adopted
by reference numerous preexisting county regulations. These policies, and the
regulations they incorporate, were intended to address the GMA requirements to
protect both water availability and water quality.
Regarding water availability, the County's development regulations adopt
Ecology's regulations-the regulations allow a subdivision or building permit applicant
to rely on a private well only when the well site "proposed by the applicant does not
fall within the boundaries of an area where [Ecology] has determined by rule that water
for development does not exist." Whatcom County Code (WCC) 24.11.090(8)(3),
.160(0)(3), .170(E)(3) 2
2 Though not related directly to this appeal, the County also took steps to address our
decisions in Department of Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 43 P.3d 4 (2002)
and Kittitas County v. Eastern Washington Growth Management Hearings Board, 172 Wn .2d
144, 256 P.3d 1193 (2011 ). Specifically, WCC 21.01.040 requires contiguous parcels of land
with the same ownership to be considered as one parcel for the purpose of permit-exempt
water appropriations. The County also adopted policies incorporating regulations and
programs to protect water quality. These measures include critical area regulations, a storm
water management program, sewage regulations, and measures designed to protect the
Lake Whatcom watershed. The Board ruled that the measures designed to protect the Lake
Whatcom watershed comply with the GMA and these measures are unrelated to this appeal.
See Futurewise v. Whatcom County, Nos. 05-2-0013 and 11-2-0010c (W. Wash. Growth
Mgmt. Hr'gs Bd. Jan. 23, 2014).
3
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
II. Procedural History
Eric Hirst, Laura Leigh Brakke, Wendy Harris, David Stalheim, and Futurewise
(collectively Hirst) filed a petition for review with the Board, challenging Ordinance No.
2012-032. Relevant to this appeal, Hirst challenged the adequacy of the County's
measures to protect surface and groundwater resources (Policies 2DD.-2.C.1 through
.9) and sought a declaration of invalidity. 3
A. Board's discussion of applicable Jaw
The Board held a hearing and issued a final decision and order (FDO). The
Board began its decision by citing to the "Applicable Law" as provided by the GMA.
As the Board observed, the GMA imposes several requirements on a local
government's planning. Relevant here, the GMA requires counties to consider and
address water resource issues in land use planning. Kittitas County v. E. Wash.
Growth Mgmt. Hr'gs Bd., 172 Wash. 2d 144, 178, 256 P.3d 1193 (2011) (counties must
regulate to ensure land use is not inconsistent with available water resources).
Accordingly, a county's comprehensive plan must '"provide for protection of the quality
and quantity of groundwater used for public water supplies."' FDO at 13 (emphasis
omitted) (quoting RCW 36.70A.070(1 )). The GMA also requires counties to plan for a
rural element that "'include[s] measures that ... protect ... surface water and
groundwater resources."' /d. at 14 (emphasis omitted) (quoting RCW
36. 70A.070(5)(c)(iv)).
3 Hirst also asserted, unsuccessfully, that the County's transportation element was
inconsistent with its rural element in violation of RCW 36. 70A.070 or RCW 36. 70A.130; this
issue is not before us on appeal.
4
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
The Board also noted that counties must include a rural element in their
comprehensive plan that includes "'lands that are not designated for urban growth,
agriculture, forest, or mineral resources."' /d. at 13 (quoting RCW 36.70A.070(5)). The
County's comprehensive plan must ensure that this rural element maintains its
"'[r]ural character'" by planning its land use and development in a manner that is
"'compatible with the use of the land by wildlife and for fish and wildlife habitat"' and
"'[t]hat are consistent with the protection of natural surface water flows and
groundwater and surface water recharge and discharge areas."' /d. (emphasis
omitted) (quoting RCW 36.70A.030(15)(d), (g)).
In addition to these planning requirements, the Board noted that the GMA
provides 13 goals to guide the development of a county's comprehensive plan. These
include a goal to "'[p]rotect the environment and enhance the state's high quality of
life, including air and water quality, and the availability of water."' /d. (emphasis
omitted) (quoting RCW 36.70A.020(1 0)). These goals "are not listed in order of priority
and shall be used exclusively for the purpose of guiding the development of
comprehensive plans and development regulations." RCW 36.70A.020. Read
collectively, these goals convey some conceptual guidance for growth management.
Richard J. Settle, Washington's Growth Management Revolution Goes to Court, 23
SEATTLE U. L. REV. 5, 8 (1999).
The Board interpreted these planning requirements and goals to indicate that
patterns of land use and development in rural areas must be consistent
with protection of instream flows, groundwater recharge, and fish and
wildlife habitat. A County's Comprehensive Plan rural lands provision
5
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
must include measures governing rural development to protect water
resources.
FDO at 21.
The GMA does not define the requirements to plan for the protection of water
resources found in RCW 36.70A.070. The Act also fails to define how the
requirements are to be met. Thus, Hirst argued that the County's comprehensive plan
must itself protect the availability of water resources, placing the burden on local
governments to protect the availability of water, RCW 36.70A.020(10), protect
groundwater resources, RCW 36.70A.070(5)(c)(iv), and ensure an adequate water
supply when it approves a building permit, RCW 19.27.097(1) and RCW 58.17.110.
The County countered that it complied with the GMA by drafting a comprehensive plan
that incorporates and is consistent with Ecology's regulations in water resource
inventory area (WRIA) 1. 4 In evaluating this relationship between Ecology's
responsibility to protect water pursuant to the Water Resources Act of 1971 (WRA),
chapter 90.54 RCW, and the responsibility of local governments to protect water
availability and quality pursuant to the GMA, the Board stated that "it is the local
government-and not Ecology-that is responsible to make the decision on water
adequacy as part of its land use decision, and in particular, with respect to exempt
wells." FDO at 23.
4 WRIAs establish instream flows affecting the approval of water rights permits and
appropriations for most of the state; WRIA 1 is in effect in the County. See ch. 173-501 WAC
(the Nooksack Rule). There are now 62 WRIAs designated, described, and subject to the
rules promulgated by Ecology. See generally chs. 173-501 to -564 WAC. Though specific
rules apply to each of these WRIAs, they generally share the purpose of retaining "perennial
rivers, streams, and lakes in [the WRIAs] with in stream flows and levels necessary to provide
for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and
navigational values, as well as recreation and water quality." WAC 173-501-020.
6
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
B. Board's findings and conclusions on water quality and availability
Hirst presented considerable evidence and the Board found substantial
evidence of limits on water availability in rural Whatcom County. See id. at 23-28.
These water availability limitations were reflected in findings that a large portion of the
County is in year-round or seasonally closed watersheds and that most of the water
in the Nooksack watershed was already legally appropriated. /d. at 23-34. The Board
also found that average minimum instream flows in portions of the Nooksack River
"are not met an average of 100 days a year." /d. at 24. Despite the limited water
availability, 1 ,652 permit-exempt well applications have been drilled in otherwise
closed basins since 1997 and an additional 637 applications were pending in March
2011. /d. Further, the Board noted that the County recognized as early as 1999 that
this proliferation of rural, permit-exempt wells was creating '"difficulties for effective
water resource management."' /d. (quoting Ex. C-671-D at 49 (1999 Whatcom County
Water Resource Plan)).
The Board concluded that the County failed to comply with the GMA,
specifically with the requirement to protect surface water and groundwater resources
pursuant to RCW 36.70A.070(5)(c). The Board's conclusion that the comprehensive
plan does not protect water availability is predicated on the Board's finding that
the water supply provisions referenced [by the amended policies] do not
require the County to make a determination of the legal availability of
groundwater in a basin where instream flows are not being met.
FDO at 40. Implicit in this conclusion is the Board's determination that water is not
presumptively available for permit-exempt withdrawals in WRIA 1. However, despite
concluding that the comprehensive plan does not protect water availability or water
7
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
quality, the Board denied Hirst's request for a declaration of invalidity and instead
remanded the ordinance to the County to take corrective action.
Both parties appealed separately. The County's appeal, focusing exclusively on
its measures to protect ground and surface water resources, challenged the Board's
determination of noncompliance with the GMA. Hirst challenged the Board's decision
not to declare the ordinance invalid. The cases were consolidated in Skagit County
Superior Court, and the Board issued its certificate of appealability of the FDO,
certifying the consolidated appeals for direct review to the Court of Appeals. Following
the County's appeal of a second order of compliance issued by the Board in April
2014, the Court of Appeals granted review. Its review consolidated that appeal, the
prior consolidated appeals for direct review, and the County's motion for discretionary
review of the original FDO.
The Court of Appeals reversed the Board, holding that the Board erroneously
interpreted and applied the law in holding that the ordinance failed to comply with the
GMA. The Court of Appeals further held that the Board engaged in unlawful procedure
by taking official notice of and relying on two documents without first providing the
County notice and the opportunity to contest the documents. The Court of Appeals
affirmed the Board's decision not to declare the ordinance invalid, holding that the
decision was a proper exercise of the Board's discretion. 5
5 As an initial matter, we reject Hirst's argument that the County's failure to assign error to the
Board's findings of fact by number renders these findings verities on appeal. We affirm the
Court of Appeals on this issue, noting that the Board did not specifically delineate findings of
fact by number; instead, it produced a blend of factual findings and legal conclusions. See
FDO at 23-44. As the Court of Appeals properly found, "the nature and extent of the County's
challenges to [the findings of fact] are clear. Thus, this court's review is not in any way
8
Whatcom County, Hirst (Eric) v. IN. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
We granted review and now reverse the Court of Appeals in part.
ANALYSIS
The County argues that the Board's conclusions are based on an erroneous
interpretation of the law. RCW 34.05.570(3)( d). Though there are several arguments
raised in the County's appeal of the Board's decision, the appeal focuses on the
subject of water availability. This principal issue concerns the actions local growth
management planners and administrators must take to ensure water availability under
the GMA.
Consistent with the Board's determination, Hirst asserts that the GMA requires
local governments to determine water availability as part of its land use decision. They
argue that the County's plan does not require the County to obtain evidence that water
is legally available before issuing building permits or approving subdivisions that rely
on permit-exempt appropriations. Thus, Hirst asserts that the comprehensive plan
results in water withdrawals that impact minimum in stream flows.
The County responds that its comprehensive plan protects the availability of
water because it ensures that the County will approve a subdivision or building permit
application that relies on a permit-exempt well for its water supply only when the
proposed well "does not fall within the boundaries of an area where [Ecology] has
determined by rule that water for development does not exist." wee 24.11.090(B)(3),
hindered by the absence of formal assignment of error. Whatcom County v. W Wash. Growth
Mgmt. Hr'gs Bd., 186 Wash. App. 32, 44, 344 P.3d 1256, review granted, 183 Wash. 2d 1008, 352
P.3d 188 (2015). We may review administrative decisions in spite of technical violations when
a proper assignment of error is lacking but the nature of the challenge is clear and the
challenged finding is set forth in the party's brief. Yakima County v. E. Wash. Growth Mgmt.
Hr'gs Bd., 168 Wash. App. 680, 687 n.1, 279 P.3d 434 (2012). Both are present here, and we
reach the merits of the County's challenges.
9
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
.160(0)(3), .170(E)(3). In effect, the County's position is that water is presumptively
available-i.e., that "not unavailable" is synonymous with "available."
In effect, the County delegates the decision on water availability to Ecology's
Nooksack Rule, chapter 173-501 WAC. The Nooksack Rule establishes minimum
instream flows for WRIA 1, covering most of the County. However, the County
argues-and Ecology agrees-that the closures and minimum flow requirements
established by the rule are not applicable to permit-exempt wells in the County. Thus,
the County argues that its comprehensive plan complies with the GMA requirements
because water is presumptively available in the County for permit-exempt wells. The
County asserts that under the GMA, the proper inquiry is whether its comprehensive
plan is consistent with Ecology's regulations designed to protect water and to ensure
that water is legally available.
We reject these arguments in the context of the GMA challenge before us. The
GMA places an independent responsibility to ensure water availability on counties, not
on Ecology. To the extent that there is a conflict between the GMA and the Nooksack
Rule, the later-enacted GMA controls.
Ecology adopted the Nooksack Rule in 1985, and the rule has not been
amended. We have since recognized that "Ecology's understanding of hydraulic
continuity has altered over time, as has its use of methods to determine hydraulic
continuity and the effect of groundwater withdrawals on surface waters." Postema v.
Pollution Control Hr'gs Bd., 142 Wash. 2d 68, 76, 11 P.3d 726 (2000). When Ecology
adopted the minimum instream flow rules, such as those contained within the
Nooksack Rule, it "did not believe that withdrawals from deep confined aquifers would
10
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
have any impact on stream flows." /d. at 88. However, we now recognize that
groundwater withdrawals can have significant impacts on surface water flows, and
Ecology must consider this effect when issuing permits for groundwater appropriation.
/d. at 80-81.
We hold that the same standard applies to counties when issuing building
permits and subdivision approvals. We have been protective of minimum instream
flow rules and have rejected appropriations that interfere with senior instream flows.
E.g., Swinomish Indian Tribal Cmty. v: Dep't of Ecology, 178 Wash. 2d 571, 598, 311
P.3d 6 (2013); Foster v. Dep't of Ecology, 184 Wash. 2d 465, 362 P.3d 959 (2015). Our
jurisprudence and well-established principles of statutory interpretation lead us to
affirm the Board's decision that the County's comprehensive plan does not satisfy the
GMA requirement to protect water availability.
I. Standard of Review
The Washington Administrative Procedure Act, chapter 34.05 RCW, governs
judicial review of challenges to board actions. Quadrant Corp. v: Cent. Puget Sound
Growth Mgmt. Hr'gs Bd., 154 Wn.2d 224,233, 110 P.3d 1132 (2005). Though county
actions are presumed compliant, this deference "is neither unlimited nor does it
approximate a rubber stamp." Swinomish Indian Tribal Cmty. v: W Wash. Growth
Mgmt. Hr'gs Bd., 161 Wn.2d 415,435 n.8, 166 P.3d 1198 (2007). Instead, deference
to counties remains "bounded ... by the goals and requirements of the GMA." King
County v: Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wash. 2d 543, 561, 14 P.3d
133 (2000). Further, we do not afford counties any deference when it comes to
interpreting the GMA. Kittitas County, 172 Wash. 2d at 156 (citing Lewis County v. W
11
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
Wash. Growth Mgmt. Hr'gs Bd., 157Wn2d 488,498,139 P.3d 1096 (2006). On appeal
to this court, the County retains the burden of establishing that the Board's decision is
based on an erroneous interpretation of the law. King County, 142 Wash. 2d at 553.
The Board must find compliance "unless it determines that the action by the state
agency, county, or city is clearly erroneous in view of the entire record before the board
and in light of the goals and requirements of [the GMA]." RCW 36.70A.320(1 ), (3). To
find an action clearly erroneous, the Board must be "'left with the firm and definite
conviction that a mistake has been committed."' King County, 142 Wash. 2d at 552 (quoting
Dep't of Ecology v. Pub. Uti/. Oist. 1 of Jefferson County, 121 Wash. 2d 179, 201, 849 P.2d
646 (1993)). We review the Board's legal conclusions de novo, giving substantial weight
to the Board's interpretation of the GMA. /d. at 553.
We review questions of statutory interpretation de novo. Ass'n of Wash. Spirits
& Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wash. 2d 342, 350, 340 P.3d 849
(2015). Our fundamental purpose in statutory interpretation is to ascertain and discern
the legislature's intent. Dep't of Ecology v: Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9,
43 P.3d 4 (2002). The court discerns legislative intent from the plain language enacted
by the legislature, considering the text of the provision in question, the context of the
statute in which the provision is found, related provisions, amendments to the
provision, and the statutory scheme as a whole. /d. at 9-19. These rules of statutory
interpretation also apply to administrative rules and regulations. See Overlake Hasp.
Ass'n v. Dep't of Health, 170 Wash. 2d 43, 51-52, 239 P.3d 1095 (201 0).
The dissent ignores these important rules of statutory interpretation, and
focuses solely on a single statute in isolation from its relevant GMA statutory scheme.
12
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
Dissent at 2-6 (discussing RCW 19.27.097). As a result, the dissent reaches a
conclusion about the meaning of this statute that is at odds with our jurisprudence on
statutory interpretation and with the GMA's larger structure, overarching goals, and
requirements.
II. The Board Correctly Ruled That the County's Rural Element Fails To Comply
with the Requirement To Protect Water Availability
We reverse the Court of Appeals and hold that the Board properly interpreted
and applied the law in concluding that the County's comprehensive plan fails to
provide for the protection of water resources. The Board's decision properly placed
the burden on the County to ensure the availability of water under the GMA pursuant
to the legislative intent, relevant statutory schemes when read in context and as a
whole, and this court's jurisprudence considering groundwater appropriations that
impact minimum flows.
A. Washington's history of water regulation
We hold that the County's comprehensive plan does not protect water
availability because it allows permit-exempt appropriations to impede minimum flows.
In reaching this holding, we note that minimum flows are exactly that: flows or levels
"to protect instream flows necessary for fish and other wildlife, recreation and
aesthetic purposes, and water quality." Swinomish Indian Tribal Cmty., 178 Wash. 2d at
592. By statute, the only exception to these flows is found at RCW 90.54.020(3) and,
though this case does not implicate this exception, we have been extremely protective
of withdrawals pursuant to that statute. See id.; Foster, 184 Wash. 2d 465. As scientific
understanding of water resources has increased, so too have Washington's
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Whatcom County, Hirst (Eric) v. W. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
restrictions on the availability of water. Washington's original water code, chapter
90.03 RCW, was enacted in 1917 and regulated only surface water appropriations. In
1945, the legislature passed the groundwater code to subject the withdrawal of
groundwater to the permitting process then applicable to surface water rights in order
to protect senior water rights and the public welfare. See RCW 90.44.020; RCW
90.03.290(3). Specified withdrawals were exempt from these permit requirements:
[A]ny withdrawal ... for single or group domestic uses in an amount not
exceeding five thousand gallons a day ... is and shall be exempt from
the provisions of this section, but, to the extent that it is regularly used
beneficially, shall be entitled to a right equal to that established by a
permit issued under the provisions of this chapter.
RCW 90.44.050. These permit-exempt withdrawals are appropriations. Swinomish
Indian Tribal Cmty., 178 Wash. 2d at 588. Recognizing that any withdrawal of water
impacts the total availability of water, we have held that an appropriator's right to use
water from a permit-exempt withdrawal is subject to senior water rights, including the
minimum flows established by Ecology. See Campbell & Gwinn, 146 Wash. 2d at 16;
Swinomish Indian Tribal Cmty., 178 Wash. 2d at 598. These exemptions existed in part
because the legislature's goal in 1945 was to encourage the development and
settlement of rural family farms drawing between 200 and 1,500 gallons of water per
day. Five Corners Family Farmers v. State, 173 Wash. 2d 296, 321-22, 268 P.3d 892
(2011) (Wiggins, J., dissenting) (citing Kara Dunn, Got Water? Limiting Washington's
Stockwatering Exemption to Five Thousand Gallons Per Day, 83 WASH. L. REV. 249,
258 (2008)).
These legislative priorities continued to change as Washington's population
increased and the limitations on its natural resources became more apparent. See
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Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
Swinomish Indian Tribal Cmty., 178 Wash. 2d at 592 ("Growing, competing demands for
water led to a number of new laws over time, and among these are acts and statutes
designed to further the goal of retaining sufficient water in streams and lakes to sustain
fish and wildlife, provide recreational and navigational opportunities, preserve scenic
and aesthetic values, and ensure water quality."). "In 1955, the legislature declared
the policy of the State to be that sufficient water flow be maintained in streams to
support fish populations and authorized rejection of water right applications if these
flows would be impaired." /d. (citing LAWS OF 1955, ch. 12, § 75.20.050 (codified as
amended at RCW 77.57.020)).
The legislature continued to enact measures to protect the flows necessary for
fish, wildlife, and water quality with the minimum water flows and levels act of 1969,
chapter 90.22 RCW. In part, this act authorized Ecology to "establish minimum water
flows ... for the purposes of protecting fish, game, birds, or other wildlife resources,
or recreational or aesthetic values of said public waters whenever it appears to be in
the public interest." RCW 90.22.01 0. Once established, minimum flows are like any
other appropriative water right in that they are subject to the rule of "first in time is the
first in right." Swinomish Indian Tribal Cmty., 178 Wash. 2d at 591.
The WRA was intended to ensure adequate water to "meet the needs of the
state's growing population" while concurrently maintaining "instream resources and
values." RCW 90.54.01 0(1 )(a). To balance growth and stream maintenance, the WRA
directed Ecology to allocate waters in a way that maximizes the net benefits to the
people of the state and to retain "base flows necessary to provide for preservation of
wildlife, fish, scenic, aesthetic and other environmental values, and navigational
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Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
values." RCW 90.54.020(3)(a). Included in this mandate is the authority to establish
minimum water flows and water levels (RCW 90.03.247 and RCW 90.22.010), base
flows, and WRIAs. RCW 90.54.040. At this time, the legislature also made Ecology
the primary administrator of chapter 90.03 RCW, concerning surface waters, and of
chapter 90.44 RCW, concerning groundwater. See ch. 43.27A RCW.
By 1979, however, "public policy had dramatically changed from what had been
true when the water code was first enacted." Swinomish Indian Tribal Cmty., 178
Wash. 2d at 595. Replacing the 1917 policies encouraging "maximum diversion of water"
were the modern policies of "[o]btaining maximum benefits, prudent management of
the state's water resources with input of interested entities, preservation of water
within the streams and lakes as necessary for instream and natural values, and
avoidance of wasteful practices." /d. at 595-96.
In order to obtain the maximum benefit from the state's water resources, the
legislature tasked Ecology with developing WRIAs. RCW 90.54.040(1 ), (2). Beginning
in 1985, Ecology developed the Nooksack Rule (WRIA 1), the first of 62 WRIAs
designated, described, and subject to rules promulgated by Ecology. See generally
chs. 173-501 to 173-564 WAC. Though specific rules apply to each of these WRIAs,
see id., they generally share the purpose "to retain perennial rivers, streams, and
lakes in [the WRIAs] with instream flows and levels necessary to provide for
preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and
navigational values, as well as recreation and water quality." WAC 173-501-020; see
also RCW 90.54.020(3).
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Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
In 1990 and 1991, the legislature addressed issues related to water use when
it enacted the GMA '"in response to public concerns about rapid population growth
and increasing development pressures in the state."' King County, 142 Wash. 2d at 546
(quoting Alan D. Copsey, Including Best Available Science in the Designation and
Protection of Critical Areas Under the Growth Management Act, 23 SEATTLE U. L. REV.
97 (1999)). This legislation followed "decades of lax and optional land use
regulations." Quadrant Corp., 154 Wash. 2d at 232. Through the GMA, the legislature
sought to minimize "uncoordinated and unplanned growth," which it found to "pose a
threat to the environment, sustainable economic development, and the health, safety,
and high quality of life enjoyed by residents of this state." RCW 36.70A.01 0.
Importantly, the GMA concentrates future growth into urban growth areas. See
RCW 36. 70A.11 0. Through this requirement, "the Act seeks to minimize intrusion into
resource lands and critical areas, preserve large tracts of open space easily
accessible to urban residents, foster a sense of spatial identity by separating
communities with great expanses of sparsely populated rural land, and induce
sufficient development density to be efficiently served by mass transportation and
other public facilities." Settle, supra, 23 SEATTLE U. L. REV. at 12. Put another way, the
Act concentrates development in cities and discourages development and will
"attempt to wean Washingtonians from the sprawling, low-density development
patterns that have prevailed throughout the nation since World War II." /d. at 12-13.
The GMA reinforces the conservation goals and priorities first established in the
WRA by requiring local governments to plan for the protection of their local
environment. The GMA requires counties to adopt a comprehensive plan and
17
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
development regulations consistent with the comprehensive plan. See RCW
36.70A.040. Among other requirements, comprehensive plans must include a rural
element that harmonizes the Act's goals with local circumstances and also protects
the rural characteristics of the area. See RCW 36.70A.070(5)(a), (c). Protecting the
rural character of the area requires planning to protect surface and groundwater
resources. RCW 36.70A.070(5)(c)(iv).
B. The GMA requires counties to have a comprehensive plan that protects
surface and groundwater resources
We hold that the Board properly concluded that the GMA requires counties to
make determinations of water availability. The language placing this burden on the
county or local government is clear, consistent, and unambiguous throughout the Act.
We begin with the plain language of the statute. Ass'n of Wash. Spirits & Wine
Distribs., 182 Wash. 2d at 350. When the language is clear, we look only to the wording
of the statute. W Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wash. 2d 599, 609,
998 P.2d 884 (2000). The language of chapter 36.70A RCW, entitled "Growth
Management-Planning by Selected Counties and Cities," is clear. RCW 36.70A.040,
"Who must plan-Summary of Requirements," provides in part:
(1) Each county [subject to the Act] shall conform with all of the
requirements of [chapter 36.70A RCW].
Subsection .040(3) outlines the duties of the county's legislative authority and each
city located within the county to conform to the Act's mandates, starting with
"adopt[ing] a countywide planning policy under RCW 36.70A.21 0," and then places
specific duties on the county. This language clearly requires the county legislative
authority-and not Ecology-to take planning action, including adopting a
18
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
comprehensive plan.
Language placing the burden on counties to take action is consistent
throughout the GMA. "Counties shall include a rural element" in their comprehensive
plans. RCW 36.70A.070(5). These rural elements must protect the rural character of
the area "as established by the county." RCW 36.70A.070(5)(c). The GMAalso places
the onus on counties to ensure that their development regulations and comprehensive
plans comply with the GMA. RCW 36. 70A.130( 1)(a) ("a county or city shall ... ensure
the plan and regulations comply with the requirements of this chapter.").
The GMA requires counties to consider and address water resource issues in
land use planning. Specifically, a county's comprehensive plan must "provide for
protection of the quality and quantity of groundwater used for public water supplies."
RCW 36. 70A.070(1 ). The GMA also requires counties to plan for a rural element that
"include[s] measures that ... protect ... surface water and groundwater resources."
RCW 36.70A.070(5)(c)(iv). Read as a whole, it is clear that the GMA holds counties
"responsible for land use decisions that affect groundwater resources." Kittitas
County, 172 Wash. 2d at 180.
C. The County's comprehensive plan conflicts with the GMA
The GMA requires that an applicant for a building permit for a single family
residence or a development must produce proof that water is both legally available
and actually available. But the County does not require any showing that water is
available for a building permit when the applicant is relying on permit-exempt water
appropriation. This failure by the County is the crux of this case.
The GMA places specific requirements on local governments when approving
19
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
building permits or authorizing subdivisions. See RCW 19.27.097(1 ); RCW
58.17.110(2). 6 In order to comply with the GMA, counties must receive sufficient
evidence of an adequate water supply from applicants for building permits or
subdivisions before the county may authorize development. RCW 19.27.097(1)
provides in relevant part:
Each applicant for a building permit of a building necessitating potable
water shall provide evidence of an adequate water supply for the
intended use of the building.
In addition, RCW 58.17.110(2} provides:
A proposed subdivision and dedication shall not be approved unless the
city, town, or county legislative body makes written findings that: (a)
Appropriate provisions are made for ... potable water supplies ....
Through these statutes, the GMA requires counties to assure that water is both
factually and legally available. Kittitas County, 172 Wash. 2d at 179-80.
The dissent focuses solely on the text of RCW 19.27.097 and concludes that
"adequate," as the term is used in the statute, requires a permit applicant to
demonstrate that water is merely factually available. This narrow interpretation of
"adequate" ignores our discussion in Kittitas County and fails to appreciate the larger
GMA scheme. In Kittitas County, we rejected the argument that the GMA required only
6 The dissent places undue significance on RCW 19.27.097's location within the state building
code. Dissent at 3-4. Though contained within Titles 19 and 58 RCW, both RCW 19.27.097
and 58.17.110(2) are part of the GMA. The legislature enacted the GMAin 1990 and amended
the GMA in 1991. RCW 19.27.097 was in the 1990 act and amended in 1991. See LAws OF
1990, 1st Ex. Sess., ch. 17, § 63; LAWS OF 1991, Spec. Sess., ch. 32, § 28. RCW 58.17.110(2)
was amended by the 1990 act. See LAWS OF 1990, ch. 17, §52. While the dissent correctly
notes that RCW 19.27.097 contains separate requirements for GMA and non-GMA counties,
this does not give this court grounds to ignore the rest of the GMA. We must read RCW
19.27.097 in conjunction with the larger GMA statutory scheme of which it is a part. See
Campbell & Gwinn, 146 Wash. 2d at 9-11.
20
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
a showing of factual availability in order to obtain a building permit from the county.
/d. Instead, we held that the GMA requires counties to "plan for land use in a manner
that is consistent with the laws regarding protection of water resources." /d. at 180.
Were we to read the GMA to require counties to assure merely that "water is physically
underground," it would allow the county to condone the evasion of existing water
rights, contrary to law. /d.
Further, because the dissent fails to read this statute in conjunction with related
provisions within the GMA, the dissent ignores the responsibility the GMA places on
counties to protect groundwater resources under RCW 36.70A.070. When read as a
whole, the GMA places the burden on counties to protect groundwater resources, and
requires counties to assure that water is both factually and legally available before
issuing building permits. 7
Here, the County's existing comprehensive plan does not require the County to
make a determination of water availability. Instead, the comprehensive plan relies on
determinations of water availability provided by Ecology's Nooksack Rule, chapter
173-501 WAC.
The Nooksack Rule establishes minimum flows for 48 basins in WRIA 1,
covering the County. WAC 173-501-030. Most of the 48 basins are closed, and over
half of the basins are closed year-round because they are already overdrawn. See
WAC 173-501-040; see a/so BECKY PETERSON ET AL., 2010 WRIA 1 STATE OF THE
7
The dissent notes that this interpretation of RCW 19.27.097 may result in differences
between GMA and non-GMA counties in the level of protection for water rights holders.
However, the legislature has created a distinction between GMA counties and non-GMA
counties, and the resulting differences in resource management between those counties is a
natural consequence of this legislation.
21
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
WATERSHED REPORT 10 (2011). However, the Nooksack Rule establishes two tiers of
"closed" basins in WRIA 1: basins closed to all appropriations except permit-exempt
appropriations and basins closed to all appropriations including permit-exempt
appropriations. See WAC 173-501-040(1 ), -070(2). Despite significant evidence that
minimum flows are not met in rural Whatcom County, Whatcom Creek is the only
basin-out of 48 basins in WRIA 1-closed to permit-exempt appropriations. WAC
173-501-070. Thus, the Nooksack Rule does not restrict permit-exempt wells from
appropriating water in otherwise closed basins.
The County interprets the Nooksack Rule to mean that water is actually
available for permit-exempt appropriations in otherwise closed basins, even if the
basin is closed because the watercourses fall below minimum flows during all or parts
of the year. The Board correctly rejected this interpretation. The Board found that
despite substantial evidence of impaired instream flows, the County continues to
authorize development relying on permit-exempt groundwater appropriations in
otherwise closed basins. FDO at 42. The County's deference to the Nooksack Rule
as a substitute for an actual determination of water availability expressly allows permit-
exempt appropriations to interfere with established minimum flows because the
Nooksack Rule exempts these appropriations from minimum flow requirements. See
WAC 173-501-030(3), -060, -070(2). The result is an unchecked reduction of minimum
flows unless and until Ecology closes a basin to all future appropriations. See WAC
173-501-070(2).
In ruling that the County's comprehensive plan does not provide for the
protection of water availability, the Board specifically found amended rural element
22
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
policies 2DD-2.C.6 and -2.C.7 noncompliant with the GMA. These policies incorporate
provisions of the WCC. 8 In turn, the incorporated provisions of the WCC defer to the
Nooksack Rule by excluding the permit-exempt groundwater appropriations from the
need to demonstrate water availability and by authorizing permit-exempt groundwater
appropriations in otherwise closed basins. See WCC 24.11.090(B)(3) (the director will
approve an application for a permit-exempt water appropriation only if the
appropriation "does not fall within the boundaries of an area where [Ecology] has
determined by rule that water for development does not exist"), .160(0)(3) (same),
.170(E)(3) (same).
These policies are contrary to the requirements of the GMA. As noted,
amended rural element policies 2DD-2.C.6 and -2.C.7 specifically incorporate wee
21.04.090, wee 21.05.080(3), and wee 24.11.050, which are wee provisions
governing public and private water systems. Each of these ordinances requires an
applicant for a public or private water system to make a showing of water availability
to withdraw more than a total of 5,000 gallons per day. But as the Board noted at page
8 Whatcom County Comprehensive Plan policy 2DD-2.C.6:
Limit water withdrawals resulting from land division through the standards in the
following Whatcom County Land Division regulations, adopted herein by
reference:
a. WCC 21.04.090 Water supply, Short Subdivisions
b. WCC 21.05.080 Water supply, Preliminary Long Subdivisions.
Whatcom County Comprehensive Plan policy 2DD-2.C.7:
Regulate groundwater withdrawals by requiring purveyors of public water systems
and private water system applicants to comply with Washington State Department
of Ecology ground water requirements per WCC 24.11.050, adopted herein by
reference.
23
Whatcom County, Hirst (Eric) v. W. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
42 of the FDO, "ultimately, a building permit for a private single-residential well does
not require the applicant to demonstrate that groundwater withdrawal will not impair
surface flows."
Indeed, the County's rules for approving permit-exempt applications authorize
groundwater appropriations in otherwise closed basins. The County asserts that its
comprehensive plan protects surface flows because it provides that the director will
approve an application for a permit-exempt water appropriation only if the
appropriation "does not fall within the boundaries of an area where [Ecology] has
determined by rule that water for development does not exist." WCC 24.11.090(B)(3),
.160(0)(3), .170(E)(3). In effect, these ordinances provide that the County determines
water availability by referencing the minimum flows and basin closures established by
the Nooksack Rule. The problem is that the Nooksack Rule-including the minimum
flows and closed basins established by the rule-does not regulate or otherwise
restrict permit-exempt uses. See WAC 173-501-070(2). The County thus reasons that
water is always available for permit-exempt appropriations. In reality, the County's
incorporation of the Nooksack Rule authorizes permit-exempt groundwater
appropriations that draw from minimum flows and otherwise closed basins, setting up
a conflict with the County's obligation to protect water availability under the GMA.
D. The County's plan fails to protect the availability of water resources
Recognizing the conflict between the GMA and the Nooksack Rule, the Board
properly held the County to the requirements imposed by the GMA. The Board ruled
that policy 2DD-2.C.7 does not comply with the requirements of the GMA because
under the policy, "a building permit for a private single-residential well does not require
24
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
the applicant to demonstrate that groundwater withdrawal will not impair surface
flows." FDO at 42. This violates the requirement in RCW 19.27 .097(1) that applicants
"for a building permit of a building necessitating potable water shall provide evidence
of an adequate water supply." See also RCW 58.17.110(2) (proposed subdivisions
shall not be approved without evidence of adequate potable water). Further, the Board
found that policy 2DD-2.C.7 "fails to limit rural development to protect ground or
surface waters with respect to permit-exempt wells as required by RCW
36.70A.070(5)( c)(iv)." FDO at 42.
As discussed in Section II.B of this opinion, supra, the County's policies
incorporate wee provisions that do not allow water to be withdrawn from "an area
where [Ecology] has determined by rule that water for development does not exist."
WCC 24.11.090(B)(3), .160(0)(3), .170(E)(3). As counsel conceded at oral argument,
these ordinances further provide that an application for a permit-exempt appropriation
will be approved without any analysis of that withdrawal's impact on instream flows. 9
The Board found that these provisions result in water withdrawals from closed basins
and senior instream flows-flows that the record indicated drop below the minimum
levels 100 days out of the year. The Board properly held that this conflicts with the
requirement placed on counties to protect water availability under the GMA, as well
as our holding in Postema, 142 Wash. 2d 68. 10
9 Wash. Supreme Court oral argument, Whatcom County v. Hirst, No. 91475-3 (Oct. 20,
2015), at 3 min., 25 sec., audio recording by TVW, Washington State's Public Affairs Network,
http://www. tvw.org.
10 The dissent relies on a 1992 attorney general opinion (AGO) to support its conclusion that
RCW 19.27.097 does not require proof of the legal availability of water. Dissent at 10-12. We
do not read the AGO to support this conclusion. Rather, the AGO recognizes that in order to
25
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
The County's adoption of the Nooksack Rule with its presumption that water is
available for permit-exempt appropriations fails to satisfy the protective purposes and
requirements of the GMA. As Ecology acknowledges in its amicus briefing, the
Nooksack Rule is "[b]ased on the scientific understanding [in 1985, when] Ecology
determined that only limited instances would occur in which groundwater withdrawals
might impair instream flows." Ecology's Amicus Curiae Br. at 19-20. But "Ecology's
understanding of hydraulic continuity has altered over time," and the effects of
groundwater withdrawals on surface waters are well known. Postema, 142 Wash. 2d at
76. Indeed, the County knew in 1999 that the proliferation of rural, permit-exempt wells
was creating '"difficulties for effective water resource management."' FDO at 24
(quoting Ex. C-671-D at 49). The County cannot reasonably rely on this regulation to
satisfy its responsibility under the GMA to protect water availability.
Indeed, the County's reliance on the Nooksack Rule turns the GMA goal of
directing growth to urban areas upside down. The County's comprehensive plan
allows the unchecked growth of single domestic dwellings relying on permit-exempt
assure "adequate" water supply, a local county requires proof of both sufficient quantity and
quality before issuing a building permit. 1992 Op. Att'y Gen. No. 17, at 7. Additionally, the
AGO recognizes due to our state's "first in time, first in right" water priority system, a local
building authority might have to require more than a right to withdraw groundwater by Ecology
permit or exemption in order to meet the "adequacy" requirement, and might require proof of
legal availability. See id. at 11 n.5. However, the AGO fails to fully consider counties'
responsibilities under the GMA when permit-exempt wells impede minimum flows. While we
give opinions of the attorney general considerable weight, they are not controlling on this
court. Wash. Fed'n of State Emps. v. Office of Fin. Mgmt., 121 Wash. 2d 152, 164, 849 P.2d
1201 (1993). Further, we give less deference to such opinions when they involve issues of
statutory interpretation. /d. While the AGO is not inconsistent with our decision today, we
decline to give it weight or consideration here because we find it of limited application to the
specific facts of this case, and because it fails to interpret RCW 19.27.097 within the larger
GMA statutory scheme.
26
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
wells in rural areas; this is precisely the "uncoordinated and unplanned growth" that
the legislature found to "pose a threat to the environment, sustainable economic
development, and the health, safety, and high quality of life enjoyed by residents of
this state." RCW 36.70A.010.
The County argues that placing responsibility for protecting water resources on
local governments transfers Ecology's statutory responsibility to administer chapter
90.44 RCW to the counties. They are wrong under our description of the proper
division of authority set forth in Kittitas County: "Ecology is responsible for
appropriation of groundwater by permit ... , the County is responsible for land use
decisions that affect groundwater resources." 172 Wash. 2d at 180.
Rather than address the language of the GMA, the County asserts that the
proper inquiry is whether its comprehensive plan is consistent with Ecology's
regulations designed to protect water and to ensure that water is legally available. For
support, the County cites numerous provisions describing the GMA as a cooperative
endeavor between local governments and state agencies with subject matter
expertise. See, e.g., RCW 90.54.130 (Ecology may provide local governments and
state agencies with advisory recommendations to assist the counties in protecting
water resources).
Notwithstanding the cooperative approach envisioned by the Act, the GMA
clearly places sole responsibility for land use decisions affecting groundwater
resources on local governments. Counties are authorized by statute to grant or deny
building permits, and the legislature has imposed on the counties the responsibility of
protecting the availability of water, RCW 36.70A.020(1 0), protecting groundwater
27
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
resources, RCW 36.70A.070(5)(c)(iv), and ensuring an adequate supply of water
when it approves a building permit. RCW 19.27.097(1 ); RCW 58.17.11 0.
In contrast, the legislature recognized that Ecology plays an advisory role to
counties making land use decisions by providing counties with model regulations and
assistance. RCW 90.54.130; Kittitas County, 172 Wash. 2d at 180. In counties required
to plan pursuant to the GMA, the legislature recognized that Ecology's permitting
authority could provide evidence of the availability of water (RCW 19.27.097(1 )). And
in counties that are not required to plan pursuant to the GMA, the legislature gave
Ecology authority to coordinate with the Department of Health to determine whether
an applicant must demonstrate the legal availability of water (RCW 19.27.097(2)). In
addition, Ecology may provide local governments with advisory recommendations to
assist those governments in protecting water resources. RCW 90.54.130. The
legislature further recognized Ecology's administrative role in the GMA, stating that a
county's land use regulations "should be consistent with ... instream flow rules"
promulgated by Ecology. WAC 365-196-825(3). Notably, none of these statutes
authorize local governments to delegate their GMA planning responsibilities to
Ecology.
Further, interpreting "assistance" to merely require counties to conform to
existing regulations would render the GMA's water protection requirements
superfluous. The legislature adopted the GMA in 1991, 20 years after the WRA and
six years after Ecology promulgated the Nooksack Rule. As observed throughout this
opinion, the Act places numerous requirements on local governments to protect the
availability of water. See RCW 36.70A.070(1), (5)(c)(iv); see also RCW 19.27.097;
28
Whatcom County, Hirst (Eric) v. W. Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
RCW 58.17.110. "Statutes must be interpreted and construed so that all the language
is given effect, with no portion rendered meaningless of superfluous." G-P Gypsum
Corp. v. Dep't of Revenue, 169 Wash. 2d 304, 309, 237 P.3d 256 (2010); see also
Tunstall v. Bergeson, 141 Wash. 2d 201, 211, 5 P.3d 691 (2000) ('To resolve apparent
conflicts between statutes, courts generally give preference to the more specific and
more recently enacted statute."). The GMA provisions would be superfluous if the
County's only obligation was to defer to Ecology's water regulations.
The County specifically contrasts its cooperative efforts with the actions at issue
in Kittitas County, where we affirmed the Board's finding of noncompliance in part
because the policies in that case effectively evaded compliance with Ecology's water
permitting requirements. See Kittitas County, 172 Wash. 2d at 180-81. Asserting that its
plan is entirely consistent with Ecology's regulations, the County urges us to find that
its comprehensive plan is GMA compliant.
This argument is incongruous: the fact that the County's provisions are wholly
consistent with Ecology's regulations does not, by itself, render them consistent with
the GMA's requirements. We require counties "to plan for land use in a manner that is
consistent with the laws regarding protection of water resources and establishing a
permitting process." /d. at 180; see also WAC 365-196-825(3). However, nothing in
Kittitas County or in the GMA suggests that consistency with Ecology's regulations is
sufficient for GMA compliance. See 172 Wash. 2d at 180-81. This argument rests on a
logical fallacy. The GMA requires counties to have a comprehensive plan that protects
surface and groundwater resources, and it requires applicants seeking approval for
building permits or subdivision developments to provide that county with evidence of
29
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
an adequate water supplies as well as potable water supplies, among other
provisions. See RCW 36.70A.070(5)(C)(iv); RCW 19.27 .097(1 ); RCW 58.17.11 0. The
Board correctly found that the County's plan does not satisfy these requirements.
It is true that the GMA places significant responsibility on local growth
management planners and administrators to work with existing laws and regulations
"toward producing a single harmonious body of law." WAC 365-196-700(2). However,
the scope of this responsibility does not support a dilution of the Act's purpose.
Recognizing the challenge this presents to local governments, the legislature directed
the Department of Commerce to provide technical assistance to local governments.
See RCW 36.70A.190. Additionally, Ecology was authorized to provide land use
management advisory recommendations to state agencies and local governments in
furtherance of protecting this state's water resources. RCW 90.54.130.
This cooperative approach is designed to give local governments the tools they
need to make informed decisions toward achieving harmony under the GMA.
However, the cooperative approach does not allow counties to disregard evidence of
minimum flow impairments in reliance on an outdated regulation. The GMA is a
mandate to government at all levels-municipalities, counties, regional authorities,
special purpose districts, and state agencies-to engage in coordinated planning and
cooperative implementation. WAC 365-196-700(5). In allocating responsibilities to
achieve these policy goals, the legislature placed the responsibility to plan for the
protection of water resources on county governments. See Kittitas County, 172 Wash. 2d
at 179.
30
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
E. The County plan is inconsistent with our minimum flows jurisprudence
In addition to the deficiencies in the County's comprehensive plan under the
GMA, the Board properly ruled that the plan is inconsistent with our decisions
protecting closed basins and minimum flows from groundwater appropriations. There
is no question that a permit-exempt well may not infringe on an earlier-established
right to water under the doctrine of prior appropriation. See Campbell & Gwinn, 146
Wash. 2d at 16. We reiterated this point in Swinomish Indian Tribal Community,
recognizing that an appropriator's right to use water from a permit-exempt well is
subject to rights with priority in time, including minimum flows. 178 Wash. 2d at 598. The
GMA protects these senior water rights by requiring local governments to determine
that applicants for building permits or subdivision developments have demonstrated
that an adequate water supply is legally available before authorizing approval. RCW
19.27.097(1); RCW 58.17.110.
Here, the Board specifically found that the "water supply provisions referenced
. do not require the County to make a determination of the legal availability of
groundwater," with the result that the County's ordinance directly conflicts with the
standard announced in Postema. FDO at 40. In Postema, we held that a minimum
flow, once established by Ecology, is an existing water right that may not be impaired
by subsequent groundwater withdrawals. 142 Wash. 2d at 81. "Accordingly, when
Ecology determines whether to issue a permit for appropriation of public groundwater,
Ecology must consider the interrelationship of the groundwater with surface waters,
and must determine whether surface water rights would be impaired or affected by
groundwater withdrawals." /d. at 80-81. "[W]here there is hydraulic continuity and
31
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
withdrawal of groundwater would impair existing surface water rights, including
minimum flow rights, then denial [of a permit] is required." /d. at 93.
Though Postema was specifically decided in the context of Ecology's
requirements prior to issuing permits, the rule in Washington is that groundwater
appropriations cannot impede minimum flows. 11 Swinomish Indian Tribal Cmty., 178
Wash. 2d at 598. It would be incongruous to limit Postema to the holding that Ecology
must consider the effect of groundwater appropriations on minimum flows when
issuing permits but that the County does not need to consider these same impacts
when issuing building permits. The County emphasizes that Ecology expressly does
not engage in the usual review of a permit application when considering permit-
exempt wells and exempt-use applications are not reviewed for impairment of existing
rights. This argument misses the mark-the GMA explicitly assigns that task to local
governments. See RCW 19.29.097(1); RCW 58.17.110.
A recent decision from Division One of the Court of Appeals in Fox v. Skagit
County, 193 Wash. App. 254, _ P.3d _ (2016), petition for review filed, No. 93203-4
(Wash. June 7, 2016), 12 lends further support to the conclusion that counties must
11 In Postema, we considered Ecology's denial of applications for groundwater appropriation
permits on the basis that groundwater sources are in hydrological continuity with surface
water sources and further appropriations were foreclosed under RCW 90.03.290. 142 Wash. 2d
at 77-78. In analyzing whether Ecology properly denied permits under RCW 90.03.290, we
considered the statutory requirements placed on Ecology to consider the interrelationship
between surface waters and groundwater in issuing permits and asserted that Ecology "must
determine whether surface water rights would be impaired or affected by groundwater
withdrawals." /d. at 80-81. This was particularly relevant because RCW 90.03.290, which
authorizes Ecology to issue permits for water appropriation, "does not ... differentiate
between the impairment of existing rights based on whether the impairment is de minimis or
significant." /d. at 90.
12 The decision of the Court of Appeals in Fox was issued after oral argument in the present
32
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
consider minimum flows when issuing building permits, even for developments relying
on permit-exempt wells. The case concerned the denial of a building permit where the
only source of water for the proposed development was from a permit-exempt well in
hydraulic continuity with a river that was subject to an instream flow rule, and that
regularly falls below its minimum flow requirements. /d. at 260. The Court of Appeals
rejected the argument that a permit-exempt well would satisfy on its own the
"adequate water supply" requirement for a building permit under RCW 19.27.097. /d.
at 269-70. Because the right to use a permit-exempt well is subject to the prior
appropriation doctrine, the court held that a determination of water availability for
purposes of issuing a building permit requires that the county consider whether the
development would impair senior water rights, including rights established by an
instream flow rule. /d. The opinion in Fox is consistent with our prior decisions in
Kittitas County, Swinomish Indian Tribal Community, and Postema, and with our
decision today.
By deferring to Ecology's Nooksack Rule, the County authorizes building
permits on a presumption of water availability in lieu of the GMA's requirement of
case had occurred. Petitioners submitted this additional authority to the Court for
consideration. Appellant's Statement of Additional Authority at 1. In their statement, the
petitioners quoted several passages from the opinion, prefacing each quote with a short
statement about the context or meaning of the passage. Respondent County objected to
petitioners' statement, claiming that it contained impermissible argument in violation of RAP
10.8. Objection to Appellants' Statement of Additional Authority at 1. Respondent asked this
court to either reject the statement or, in the alternative, strike all argument from the
statement. /d. at 2. Under RAP 10.8, a party should identify the issue for which the additional
authority is offered but the statement "should not contain argument." We agree with the
respondent that the petitioners' commentary on the quoted passages crosses the line
between permissible identification and impermissible argument. We grant the respondent's
motion to strike this language from petitioners' statement, but we decline to reject the
statement in full.
33
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
"evidence of adequate water supply." As authorized by RCW 90.54.020(3), Ecology's
Nooksack Rule established instream flows as "necessary to provide for preservation
of wildlife, fish, scenic, aesthetic and other environmental values" at WAC 173-501-
030(1) to (3); these regulations expressly provide that only Whatcom Creek is closed
to permit-exempt uses. See WAC 173-501-040(1), -070(2). However, the Nooksack
Rule does not provide that water is legally available for permit-exempt uses in all other
streams in WRIA 1. See WAC 173-501-040(1), -070(2); see generally ch. 173-501
WAC.
As the Board correctly states, each water use appropriation requires a fact-
specific determination. RCW 19.29.097(1 ); RCW 58.17.11 0. Because the County's
plan does not require applicants to present evidence of water availability, the unasked
question in the County is whether there is water that is legally available and that can
be appropriated in certain areas of rural Whatcom County without conflicting with the
applicable instream flows. Instead of evidence, the County presumes that water is
available for all permit-exempt wells unless Ecology has explicitly closed a basin to all
groundwater appropriations, specifically including permit-exempt appropriations. 13
The Board correctly found that this approach has an adverse impact on minimum
flows, that it does not comply with the GMA, and that it is incompatible with our
13 Counties may not rely on Ecology's inaction in failing to close a basin as a determination
that water is presumptively available for appropriation. Such inaction fails to provide any
assurance that a new permit-exempt well will not infringe on senior water rights, and thus fails
to satisfy the obligation the GMA places on counties to ensure that water is legally available
before issuing a building permit. See RCW 19.29.097(1); RCW 58.17.110. However, if and
when Ecology makes a determination to close a basin to all future appropriations, including
permit-exempt appropriations, this positive action by Ecology amounts to a recognition that
water is not available for any use, and may form a reasonable basis for a county to find that
water is not legally available for further appropriation.
34
Whatcom County, Hirst (Eric) v: W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
decisions that consistently protect instream flows from impairment by groundwater
withdrawals.
Ill. The Board Properly Ruled That the County's Rural Element Fails To Comply
with the Requirement To Protect Water Quality
We reverse the Court of Appeals in part and hold that the Board's ruling that
the County's rural element does not comply with the requirement to protect water
quality is based on a proper interpretation and application of the law. The County
argues-and the Court of Appeals agreed-that the Board's reliance on preexisting
water quality problems in Whatcom County improperly imposed a duty on the County
to "enhance" water quality rather than to merely "protect" water quality. The County is
correct that it does not have a duty to enhance water quality; however, the Board's
ruling does not require counties to enhance water quality and the decision is
supported by substantial evidence. 14
A. Comprehensive plans are not required to include provisions that enhance
water quality
The GMA imposes several requirements and goals on a local government's
planning. Comprehensive plans "shall provide for protection of the quality ... of
groundwater used for public water supplies." RCW 36.70A.070(1) (emphasis added).
It is a goal of the GMA to "[p]rotect the environment and enhance the state's high
quality of life, including air and water quality." RCW 36.70A.020(10) (emphasis
added).
14 During oral argument, the County conceded that it had notice of two documents by the
second hearing before the Board and that the documents were now properly a part of the
record. See Wash. Supreme Court oral argument, supra, at 52 min., 45 sec. to 57 min., 17
sec. Based on this concession and our reasoning at Section III.B, infra, we do not address
this procedural argument further.
35
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
Hirst urges us to hold that counties must "enhance" water quality, relying on the
County's related argument that local governments must adhere to the "planning goals"
and "[g]eneral declaration of fundamentals" found in RCW 34.70A.020 and RCW
90.54.020, respectively, such that a county's comprehensive plan must both "protect"
and "enhance" water quality. However, nothing in the language of either statute or in
our prior interpretations of the GMA goals support this interpretation.
Subsection .020 of the GMA, chapter 36.70A RCW, provides 13 planning goals
to "guide the development and adoption of comprehensive plans and development
regulations of those counties and cities that are required or choose to plan under
[subsection .040]." The goals "are not listed in order of priority and shall be used
exclusively for the purpose of guiding the development of comprehensive plans and
development regulations." RCW 36.70A.020. Additionally, "the GMA 'explicitly denies
any order of priority among the thirteen goals' and it is evident that 'some of them are
mutually competitive."' Quadrant Corp., 154 Wash. 2d at 246 (quoting Settle, supra, at
11 ). Nothing in this plain language suggests that GMA goals impose substantive
requirements on local governments.
Indeed, we rejected a similar argument in Swinomish Indian Tribal Community
when we held that the term "protect" does not impose a duty on counties to "enhance"
water quality under RCW 36.70A.172(1 ). 161 Wash. 2d at 428. There, we considered the
Swinomish Tribe's argument that the requirement to "protect" critical areas under the
GMA requires measures to "enhance" because "where an area is already in a
degraded condition, it is not being protected unless that condition is improved or
enhanced." /d. at 427. In rejecting that argument, we recognized that the term "protect"
36
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
may encompass an option of enhancement but that the term itself does not require
enhancement. /d. at 429. We also considered the legislature's deliberate use of the
terms "protect" and "enhance" throughout the GMA, finding that "[i]n several sections
of the GMA, the legislature allows enhancement of natural conditions under the GMA
without requiring enhancement." /d. We have acknowledged that RCW 36.70A.020
lists the enhancement of water quality as a goal of the GMA, see id., but have never
held that local governments are bound by these goals in addition to the enumerated
requirements of the Act. See Quadrant Corp., 154 Wash. 2d at 246. We adhere to that
holding here-the GMA does not require counties to "enhance" water quality.
Hirst's argument under the WRA fares no better than their argument under the
GMA. Subsection .020 of the WRA, entitled "General declaration of fundamentals for
utilization and management of waters of the state," reads in relevant part:
Utilization and management of the waters of the state shall be guided by
the following general declaration of fundamentals:
(3) The quality of the natural environment shall be protected and,
where possible, enhanced as follows:
(b) Waters of the state shall be of high quality. Regardless of the
quality of the waters of the state, all wastes and other materials and
substances proposed for entry into said waters shall.be provided with all
known, available, and reasonable methods of treatment prior to entry.
Notwithstanding that standards of quality established for the waters of
the state would not be violated, wastes and other materials and
substances shall not be allowed to enter such waters which will reduce
the existing quality thereof, except in those situations where it is clear
that overriding considerations of the public interest will be served ....
37
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
(5) Adequate and safe supplies of water shall be preserved and
protected in potable condition to satisfy human domestic needs.
RCW 90.54.020. The plain language of this section requires the quality of the natural
environment to be "protected." Waters are protected in part when "wastes and other
materials and substances" are not allowed to enter the waters when those materials
will reduce the existing quality of the water. RCW 90.54.020(3)(b ). The statute further
provides that "[a]dequate and safe supplies of water shall be preserved." RCW
90.54.020(5). The language in the WRA does not suggest that water quality must be
"enhanced," and it does not supersede language from the GMA requiring water to be
"protected." These goals, while admirable, simply do not impose a duty on counties to
enhance water quality.
B. The Board's conclusion about water quality is not based on a duty to enhance
water quality
The Board did not rule that the County had an obligation to enhance water
quality. Its ruling that the County's policies relating to water quality do not satisfy the
requirements of the GMA identifies two specific problems. We address these concerns
in turn.
First, the Board concluded that the County policies 2DD.2.C.1, -2.C.3, -2.C.4,
and -2.C.8 either do not apply throughout the County's rural area or apply only to parts
of the rural area. See FDO at 36, 39, 43. The Board further found that "no measures
exist to limit development to protect water resources in the remaining portions of the
County's Rural Area." /d. at 38 (emphasis omitted); see also id. at 39 ("[T]he County's
Stormwater Manual does not provide measures to protect groundwater throughout the
County's Rural Area."). Given these deficiencies, the Board concluded that
38
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
the County is left without Rural Element Measures to protect rural
character by ensuring land use and development patterns are consistent
with protection of surface water and groundwater resources throughout
its Rural Area. This is especially critical given the water supply limitations
and water quality impairment documented in this case ....
/d. at 43. The conclusion that these policies do not protect water quality is not based
on a duty to enhance water quality.
Second, the Board found that policy 2DD-2.C.2 "is not a measure limiting
development to protect water resources as required in RCW 36.70A.070(5)( c)(iv)." /d.
at 37-38. This policy is implemented through chapter 24.05 WCC, which allows private
homeowners in rural areas to inspect their own septic systems rather than requiring
professional inspections. The Board noted significant disparity in reported failure rates
and compliance rates between homeowners who self-inspect versus professional
inspections, as well as studies showing water quality contamination from faulty septic
systems. /d. at 37.
In essence, the Board ruled that the County's current inspection system policies
were flawed and that continuing to rely on this flawed system would not protect water
quality in the future. See id. at 36-39. This also does not impose a duty on counties to
enhance water quality. We therefore reverse the Court of Appeals and hold that the
Board applied the proper legal standard and analysis in concluding that the County's
rural element policy does not comply with the GMA.
The County also asserts that the Board's findings are not supported by
substantial evidence. We note that the Board cited a "proliferation of evidence in the
record of continued water quality degradation resulting from land use and
development activities," id. at 35, including scientific reports in Ecology's 2010 State
39
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
of the Watershed Report; Washington Department of Fish and Wildlife's Land Use
Planning for Salmon, Stee/head and Trout; and the Puget Sound Partnership's
2012/2013 Action Agenda for Puget Sound. KATIE KNIGHT, WASH. DEP'T OF FISH &
WILDLIFE, LAND USE PLANNING FOR SALMON, STEELHEAD, AND TROUT: A LAND USE
PLANNER'S GUIDE TO SALMONID HABITAT PROTECTION AND RECOVERY (2009) (WDFW
2009 REPORT); PUGET SOUND P'SHIP, THE 2012/2013 ACTION AGENDA FOR PUGET
SOUND (2012). These reports conclude that water resource degradation in the County
can be attributed to land use and land development practices. FDO at 32-33 (citing
WDFW 2009 REPORT, supra, at 77 (2009)). These reports also determined that
"'stormwater runoff is the leading contributor to water quality pollution of urban
waterways in western Washington State."' /d. at 32 (quoting WDFW 2009 REPORT,
supra, at 39-40).
The County's arguments dismissing this evidence as merely "generalized
evidence of water quality problems" miss the point: as the Board properly observed,
counties must include protective measures in their comprehensive plan. /d. at 35
(citing Kittitas County, 172 Wash. 2d at 164). The Board's conclusion that the County
plan does not have the necessary measures to comply with this requirement is all that
is needed to establish that the County's comprehensive plan does not satisfy the
GMA. The evidence cited by the Board is not essential to this ruling; it is instead
intended to underscore the importance of implementing effective protective measures
in rural Whatcom County. Therefore, we reverse the Court of Appeals' holding that the
Board's decision improperly imposed a duty on the County to "enhance" water quality
40
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
rather than to merely "protect" water quality and affirm the Board's ruling that the
County's rural element fails to comply with the requirement to protect water quality.
IV. The Board Has Discretion To Declare a Comprehensive Plan Invalid
Finally, Hirst cross appeals the Board's decision declining to declare the
County's comprehensive plan invalid. Hirst argues that the Board erroneously
interpreted and applied the GMA because it applied an incorrect legal standard. We
hold that the Board did not abuse its discretion in declining to make a determination
of invalidity.
The GMA provides statutory remedies for plans or regulations that the Board
determines violate the GMA. As we have previously observed when interpreting these
provisions, the GMA provides the Board with "two options: (1) it may enter a finding of
noncompliance or (2) it may enter a finding of invalidity." Town of Woodway v.
Snohomish County, 180 Wash. 2d 165, 174, 322 P.3d 1219 (2014) (citing RCW
36. 70A.300(3)(b ), .302). We review the Board's exercise of these options for abuse of
discretion. See id.
RCW 36.70A.302(1) provides the legal standard under which the Board
determines whether to make a finding of invalidity:
(1) The board may determine that part or all of a comprehensive
plan or development regulations are invalid if the board:
(a) Makes a finding of noncompliance and issues an order of
remand under RCW 36.70A.300;
(b) Includes in the final order a determination, supported by
findings of fact and conclusions of law, that the continued validity of part
or parts of the plan or regulation would substantially interfere with the
fulfillment of the goals of this chapter; and
(c) Specifies in the final order the particular part or parts of the
plan or regulation that are determined to be invalid, and the reasons for
their invalidity.
41
Whatcom County, Hirst (Eric) v: W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
(Emphasis added.) The legislature's use of the term "may" generally indicates the
existence of an option that is a matter of discretion. Nat'! Elec. Contractors Ass'n v:
Rive/and, 138 Wash. 2d 9, 28, 978 P.2d 481 (1999) (citing Yakima County (W Valley)
Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wash. 2d 371, 381, 858 P.2d 245 (1993));
see also WAC 365-196-21 0(20).
In denying Hirst's request for an order of invalidity, the Board stated:
This Board has previously held that it will declare invalid only the
most egregious noncompliant provisions which threaten the local
government's future ability to achieve compliance with the Act. Although
the Board finds areas of noncompliance with the GMA, Petitioners have
not met the standard for a declaration of invalidity.
FDO at 50 (footnote omitted).
Hirst argues, correctly, that the GMA standard for a determination of invalidity
is not "the most egregious noncompliant provisions which threaten the local
government's future ability to achieve compliance with the Act." While this is a correct
statement of the law, it is irrelevant to determining whether the Board properly
exercised its discretion by requiring a heightened showing before it elects to invalidate
a noncompliant provision. As the quoted language shows, the Board is asserting its
own standards for invalidating provisions. Hirst's argument fails to acknowledge that
the plain language of subsection .302(1) articulates the threshold requirements for a
board to make a determination of invalidity; a board may not make a determination of
invalidity if those requirements are not satisfied, but it is not required to make a finding
of invalidity if they are. Cf. Spokane County v: E. Wash. Growth Mgmt. Hr'gs Bd., 176
Wash. App. 555, 578, 309 P.3d 673 (2013) (Board's determination of invalidity satisfied
42
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
the statutory requirements and was based on due consideration of the facts), review
denied, 179 Wash. 2d 1015 (2014). Therefore, we affirm the Court of Appeals on this
issue and hold that the Board did not abuse its discretion in declining to make a finding
of invalidity.
CONCLUSION
We reverse the Court of Appeals and hold that the County's comprehensive
plan does not satisfy the GMA requirements to protect water availability or water
quality. However, we affirm the Court of Appeals' holding that the Board did not abuse
its discretion in declining to make a finding of invalidity. We therefore reverse the Court
of Appeals in part and remand to the Board for further proceedings consistent with this
opinion.
43
Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3
WE CONCUR.
(
44
Whatcom County, eta!. v. W Wash. Growth Mgmt. Hr 'gs Bd.
No. 91475-3
MADSEN, C.J. (concurring)-! agree with the majority that the Growth
Management Act (GMA), chapter 36. 70A RCW, places a burden on counties to assure
the factual and legal availability of water before issuing building permits. And Whatcom
County (County) failed to meet this burden by simply relying on the Department of
Ecology's "Nooksack Rule" 1 rather than actually making a finding that water was
available. I write separately to emphasize the duty of the State, tribes, and local
governments to work together to ensure there is available water before issuing building
permits, rather than letting their burden fall onto individual permit applicants.
Discussion
The majority holds that the County failed to meet its duty under the GMA to
ensure water was factually and legally available before issuing building permits.
Majority at 2, 13. I agree with this holding. The GMA places a duty on counties to
ensure that water is both factually and legally available before they issue building
permits. RCW 19.27.097(1); RCW 58.17.110(2); see majority at 18-20. This court has
1
The Nooksack Water Resource Inventory Area, chapter 173-50 I WAC.
91475-3
Madsen, C.J., concurring
recognized this duty before. Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Ed., 172
Wash. 2d 144, 179-80, 256 P.3d 1193 (2011 ); see majority at 20-21.
Here, the County failed to ascertain whether there was available water before
issuing building permits. Rather, the County shifted its statutory duty under the GMA to
the Department of Ecology by adopting Ecology's presumptive Nooksack Rule. Where,
as here, Ecology has not actually determined whether water is available, the County is not
entitled simply to rely on Ecology's rule. 2 As the majority holds, the County has an
independent duty under the GMA to ensure water is both factually and legally available
before issuing building permits.
I write separately to address the dissent's concern that the majority is shifting the
burden of showing water availability onto individual permit applicants. Dissent at 1, 16.
Like the dissent, I fear the majority could be read to say that if the County cannot rely on
Ecology's rule, then it can shift its burden onto permit applicants. But that is not so.
Rather, the State and local governments have independent statutory duties to ensure water
availability, and they must work together to protect water resources and ensure water
availability as part of their comprehensive planning process. 3
2
By adopting the Nooksack Ru1e, the County presumes there is an adequate supply to provide
water for a permit-exempt well unless Ecology has expressly closed that area to permit-exempt
appropriations. Majority at 2. As the majority notes, this means the County's position is that
"water is presumptively available-i.e., that 'not unavailable' is synonymous with 'available."'
!d. at 9. For further discussion of the Nooksack Rule, see id. at 21-22.
3
Ecology is, of course, not a party to this case, so this court cannot direct what it must do to
assist the Cotmty in the development of a comprehensive plan and zoning code that meets the
County's obligations under the GMA. But this case presents an opportunity to highlight the
2
91475-3
Madsen, C.J., concurring
The State and the counties each have an independent statutory duty to ensure
water availability. For example, before issuing a groundwater permit, Ecology must
investigate and affirmatively find "(1) that water is available, (2) for a beneficial use, and
that (3) an appropriation will not impair existing rights or (4) be detrimental to the public
welfare." Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 8, 43 P.3d 4
(2002) (citing RCW 90.03.290). Under the GMA, a county's comprehensive plan, RCW
36.70A.040, must include a land use element that provides for the "protection of the
quality and quantity of groundwater used for public water supplies." RCW
36.70A.070(1). And before issuing a building permit, a county must determine that there
are potable water supplies. RCW 58.17.110(2)(a). Thus, both the State and the counties
have an independent duty to ensure water availability prior to issuing permits.
Although each has an independent statutory duty, the legislature envisioned
cooperation between the State and local governments when it enacted the Water
Resources Act of 1971 (WRA), chapter 90.54 RCW, and, later, the GMA. The
legislature included language highlighting this cooperative approach throughout the
statutes:
To ensure that available water supplies are managed to best meet both
instream and offstream needs, a comprehensive planning process is
essential .... Through a comprehensive planning process that includes the
state, Indian tribes, local governments, and interested parties, it is possible
to make better use of available water supplies and achieve better
management of water resources. Through comprehensive planning,
generally applicable importance of comprehensive planning between the State and local
governments under the Water Resources Act of 1971, chapter 90.54 RCW, and the GMA.
3
91475-3
Madsen, C.J., concurring
conflicts among water users and interests can be reduced or resolved. It is
in the best interests of the state that comprehensive water resource planning
be given a high priority.
RCW 90.54.010(1)(b) (emphasis added); RCW 36.70A.103 (state agencies shall comply
with local comprehensive plans), .106(1) (state agencies may provide comments to local
governments on a proposed comprehensive plan); RCW 19.27.097(2) (county and state
may mutually determine to which areas the building permit requirements do not apply);
see also WAC 365-196-700(5) ("The [WRA] is a mandate to government at all levels to
engage in coordinated planning and cooperative implementation.").
This court has recognized the cooperative spirit that the legislature envisioned
when enacting these statutes. In Kittitas County, while reaffirming the county's
responsibility in land use decisions, we emphasized, "[W]e do not intend to minimize the
role of Ecology. Ecology maintains its role, as provided by statute, and ought to assist
counties in their land use planning to adequately protect water resources." 172 Wash. 2d at
180 (emphasis added). The majority too recognizes the cooperative approach that the
GMA envisions. Majority at 27. But the majority focuses on how the County cannot use
the cooperative approach to "disregard evidence of minimum flow impairments in
reliance on an outdated regulation." !d. at 30. While I agree, I think it should be made
clear that the statutes do not expect the burden to fall on individual applicants where the
County has failed to meet its initial burden of determining water availability through its
comprehensive planning and development regulations.
4
91475-3
Madsen, C.J., concurring
When the counties and Ecology combine their planning and water resources
authority, the technical resources and planning solutions offer a wide range of tools to
ensure water availability. For example, a county can make its densities consistent with
water availability, provide water mitigation, or ensure there are limited impervious
4
surfaces so that more water goes into streams. Although the legislature has placed a
burden on individual applicants to provide evidence of water, RCW 19.27.097(1), there
are steps that the State and the counties must take under their statutory duties to protect
water resources, ensure water availability, and engage in a comprehensive planning
process. The burden on permit applicants under RCW 19.27.097(1) assumes that the
State and the counties have already complied with their statutory duties to ensure the
availability of water. Thus, the burden to provide evidence of water falls on individual
applicants only where the State and the counties have first fulfilled their statutory duties
of ensuring that water is available.
The State and the counties cannot meet their respective duties to protect this
State's dwindling water resources by relying on one another's rules or shifting their
burdens to others. As stewards of our valuable water resources, the State and the
counties must work together to develop comprehensive plans to address water usage in
4
Wash. Supreme Court oral argument, Whatcom County v. Hirst, No. 91475-3 (Oct. 20, 2015),
at 30 min., 50 sec., audio recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org. See also Kittitas County Conserv. Coal. v. Kittitas County, Nos. 07-1-
0004c & 07-1-0015, 2014 WL 4809403, at *8-11 (E. Wash. Growth Mgmt. Hr'gs Bd. Aug. 13,
2014) (detailing the comprehensive plan, developed after remand from this Court in Kittitas
County, 172 Wash. 2d 144, found in compliance with the GMA).
5
91475-3
Madsen, C.J., concurring
our State. RCW 90.54.010(b). I write separately to emphasize it is the burden ofthe
State and local governments, independently and in cooperation, to determine water
availability in the first instance. This is not a burden to be shifted onto individual permit
applicants.
6
91475-3
Madsen, C.J., concurring
7
Whatcom County, Hirst (Eric), eta!. v. W: Wash. Growth Mgmt. Hr'gs Bd.
No. 91475-3
STEPHENS, J. (dissenting)-The majority's decision hinges on an
interpretation of RCW 19.27.097 that is unsupported by the plain language of the
statute, precedent, or common sense. It assumes this provision of the building code
requires Whatcom County to determine water right priorities before it may grant a
building permit that relies on a permit-exempt well. It also assumes this provision
prohibits the county from relying on the Department of Ecology's determination of
whether water is available for withdrawal in a particular basin. The effect of the
majority's holding is to require individual building permit applicants to commission
a hydrogeological study to show that their very small withdrawal does not impair
senior water rights, and then have the local building department evaluate the
adequacy of that scientific data. The practical result of this holding is to stop
counties from granting building permits that rely on permit-exempt wells. Not only
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
is this contrary to the clear legislative purpose ofRCW 19.27.097, it potentially puts
counties at odds with the Department of Ecology and imposes impossible burdens
on landowners. I respectfully dissent.
L RCW 19.27.097 Does Not Require Building Permit Applicants To Provide
Evidence of the Legal Availability of Water
The majority holds that to satisfy the Growth Management Act (GMA),
chapter 36.70A RCW, the county cannot rely on the Department of Ecology's water
availability determinations, but instead must require building permit applicants
relying on permit-exempt wells to provide the county with evidence that water is
both factually and legally available. See majority at 19-20. The majority's holding
relies on a faulty interpretation ofRCW 19.27 .097. That statute provides in relevant
part,
(1) Each applicant for a building permit of a building necessitating potable
water shall provide evidence of an adequate water supply for the intended
use of the building. Evidence may be in the form of a water right permit
from the department of ecology, a letter from an approved water purveyor
stating the ability to provide water, or another form sufficient to verify the
existence of an adequate water supply. In addition to other authorities, the
county or city may impose conditions on building permits requiring
connection to an existing public water system where the existing system is
willing and able to provide safe and reliable potable water to the applicant
with reasonable economy and efficiency. An application for a water right
shall not be sufficient proof of an adequate water supply.
(2) Within counties not required or not choosing to plan pursuant to
RCW 36.70A.040, the county and the state may mutually determine those
areas in the county in which the requirements of subsection (1) of this section
shall not apply. The departments of health and ecology shall coordinate on
the implementation of this section. Should the county and the state fail to
-2-
Whatcom County, Hirst (Eric), et al. v. W Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
mutually determine those areas to be designated pursuant to this subsection,
the county may petition the department of enterprise services to mediate or,
if necessary, make the determination.
RCW 19.27.097.
While part of the GMA, this statute is codified in the building code, chapter
19.27 RCW. See Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wash. 2d
144, 178-79, 256 P.3d 1193 (2011). It sends a simple message to building permit
applicants: "show me the water." It does not require counties to modify their growth
management ordinances to deviate from the Department ofEcology's determination
of whether water is available for use in a particular basin. Nor does it require
applicants to undertake the burden of showing that the use of a permit-exempt well
will not impair senior water rights.
The plain language of RCW 19.27.097 supports this interpretation. The
methods that an applicant may use to show there is an "adequate water supply" speak
to the actual presence of water, not its legal availability. RCW 19.27.097(1)
("Evidence may be in the form of ... a letter from an approved water purveyor
stating the ability to provide water."). Furthermore, the statute uses the term
"adequate" to describe the water supply; it does not use "available." Id. This is
important, as "[w ]e presume the legislature intends a different meaning when it uses
different terms." Foster v. Dep't of Ecology, 184 Wash. 2d 465, 473, 362 P.3d 959
-3-
Whatcom County, Hirst (Eric), et al. v. W Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
(20 15). In the water code, where the legislature intends an investigation of both
factual and legal availability of water, it uses the term "available." See RCW
90.03.290(1) (providing that under the water code's appropriation procedure, it is
the duty of the Department of Ecology to "determine what water, if any, is available
for appropriation" (emphasis added)), .290(3) ("if [the department] shall find that
there is water available for appropriation for a beneficial use, and the appropriation
thereof as proposed in the application will not impair existing rights or be
detrimental to the public welfare, it shall issue a permit . . . . But where there is no
unappropriated water in the proposed source of supply, or where the proposed use
conflicts with existing rights," the department shall reject the application (emphasis
added)). In GMA regulations, the term "adequate" refers to actual water supply, not
legal availability. See WAC 365-196-210(3) (Department of Commerce GMA
regulations defining "adequate public facilities" as "facilities which have the
capacity to serve development without decreasing levels of service below locally
established minimums"), -41 0(1 )(d) ("The housing element must contain at least the
following features: ... [a]dequate provisions for existing and projected housing
needs of all economic segments ofthe community.").
The majority's attempt to tie the GMA's broad policy objectives and planning
goals to this statute overlooks the fact that RCW 19.27.097 applies to both GMA
-4-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
and non-GMA counties. The statute speaks directly to an individual applicant's
burdens, not to the required elements of a county's comprehensive plan. See RCW
19.27.097(1) ("Each applicant for a building permit of a building necessitating
potable water shall provide evidence of an adequate water supply for the intended
use of the building." (emphasis added)). Although under this statute non-GMA
counties can require building permit applicants to provide evidence of an adequate
water supply, this is not mandated. In non-GMA counties, applicants may or may
not have to show evidence of potable water. RCW 19.27.097(2) ("Within counties
not required or not choosing to plan pursuant to RCW 36.70A.040, the county and
the state may mutually determine those areas in the county in which the requirements
of subsection (1) ofthis section shall not apply.").
The majority's holding, which requires applicants for a building permit in a
GMA county to prove the legal availability of water, will lead to inconsistent
protection for senior water rights holders across the state. See 1992 Op. Att'y Gen.
No. 17, at 7 n.4 ("In areas where RCW 19.27.097(1) does not apply, the local
building department will not need to determine whether there is an adequate water
supply before issuing a building permit."). Under the majority's interpretation,
senior water rights holders in GMA counties can rely on counties to look at
applicants' evidence and deny building permits when permit-exempt wells would
-5-
Whatcom County, Hirst (Eric), eta!. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
interfere with senior water rights. However, in non-GMA counties where applicants
relying on permit-exempt wells do not have to prove water is legally available, senior
water rights holders bear the burden of determining a permit-exempt well is
interfering with their rights and initiating a lawsuit to stop the impairment. 1 We
cannot read the requirements of the building code to create such unequal protection
for senior water rights holders.
Noticeably missing from the majority's analysis of RCW 19.27.097 is any
discussion of the inconsistent protection its interpretation creates. The majority
brushes off this argument, stating, "While the dissent correctly notes that RCW
19.27.097 contains separate requirements for GMA and non-GMA counties, this
does not give this court grounds to ignore the rest ofthe GMA." Majority at 20 n.6.
This court should not interpret a statute so as to give people in some counties greater
protection for their water right than others, especially when the result is to foster
piecemeal decision-making regarding water use. By interpreting RCW 19.27.097 to
mean "show me the water" and allowing counties to rely on the Department of
Ecology's determination of whether water is legally available, I do not ignore the
1 Permit-exempt wells that are regularly, beneficially used, are "entitled to a right
equal to that established by a permit." RCW 90.44.050. "The authority to adjudicate and
enforce water rights ... is specifically granted to the superior courts .... " Rettkowski v.
Dep 't of Ecology, 122 Wash. 2d 219, 225, 858 P.2d 232 (1993), a.ff'd in part and rev'd in
part, 128 Wash. 2d 508, 910 P.2d 462 (1996).
-6-
Whatcom County, Hirst (Eric), et al. v. W Wash. GrowthMgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
other provisions of the GMA. Instead, I harmonize the GMA and the Water
Resources Act of 1971 (WRA), chapter 90.54 RCW, and its goal of consistent
decision-making-something the majority fails to do.
The WRA requires the Department of Ecology, "through the adoption of
appropriate rules ... to develop and implement ... a comprehensive state water
resources program which will provide a process for making decisions on future water
resource allocation and use." RCW 90.54.040(1) (emphasis added). The ordinary
meaning of "comprehensive" is "covering a matter under consideration completely
or nearly completely." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 467
(2002); see Tingey v. Haisch, 159 Wash. 2d 652, 658, 152 P.3d 1020 (2007) ("When a
term has a well-accepted, ordinary meaning, a regular dictionary may be consulted
to ascertain the term's definition."). The legislature recognized the need for
comprehensive planning to effectively manage water resources:
To ensure that available water supplies are managed to best meet both
instream and offstream needs, a comprehensive planning process is
essential. . . . Through a comprehensive planning process that
includes the state, Indian tribes, local governments, and interested
parties, it is possible to make better use of available water supplies and
achieve better management of water resources. Through compre-
hensive planning, conflicts among water users and interests can be
reduced or resolved.
RCW 90.54.010(l)(b).
-7-
Whatcom County, Hirst (Eric), eta!. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
The legislature also recognized that water does not respect human-made
boundaries. It found that "[c]omprehensive water resource planning is best
accomplished through a regional planning process sensitive to the umque
characteristics and issues of each region." RCW 90.54.010(1)(c). The legislature
entrusted the Department of Ecology with the task of developing and implementing
the "comprehensive state water resources program." RCW 90.54.040(1). It also
instructed local governments, including counties, to "whenever possible, carry out
powers vested in them in manners which are consistent with the provisions of this
chapter." RCW 90.54.090. In response to the WRA, the Department of Ecology
established the Water Resources Management Program, see ch. 173-500 WAC, and
water resource inventory areas, such as the "Nooksack Rule" at issue in this case,
see, e.g., ch. 173-501 WAC. See also Postema v. Pollution Control Hr'gs Bd., 142
Wash. 2d 68, 81, 83, 11 P.3d 726 (2000).
I would interpret RCW 19.29.097 to align with the WRA. Allowing counties
to integrate the Department of Ecology's water determinations into their
comprehensive plans and rely on them when reviewing building permit applications
promotes the integrated, comprehensive management the legislature envisioned. It
also promotes consistent water management throughout a basin, recognizing that
basins cross county lines.
-8-
Whatcom County, Hirst (Eric), eta!. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
In contrast, the majority's rule clashes with the WRA. The majority's holding
will lead to county-by-county decisions on water use that directly undermine the
WRA's mandate for a comprehensive water management plan. Not only that, but
the majority's approach risks a race-to-the-bottom in water management. Counties,
lacking both the Department of Ecology's expertise and its statewide perspective,
are ill equipped to thoroughly vet the information that permit applicants will offer to
show no impairment. Nor do county building departments have an obligation to
perform their own research or consult with other potentially affected parties (e.g.,
tribes or other counties) before deciding whether a small well will negatively impact
a senior water right. Of course, counties often do have an incentive to approve
building permits, increasing the local tax base and boosting economic growth
through new development. Requiring counties to make their own determination of
whether water is legally available-rather than allowing them to rely on the
Department of Ecology-undermines the comprehensive water management
required by the WRA. 2
2
If the Department of Ecology determines that water is not legally available for
permit-exempt withdrawals, it has the authority to close a basin to all future consumptive
use, including permit-exempt wells. See WAC 173-501-070(2) (closing Whatcom Creek
"to any further appropriation, including otherwise exempted single domestic use"). Under
the rule I propose, counties could integrate the Department of Ecology's rules into their
codes and rely on its closure of a basin to permit-exempt withdrawals to deny a building
permit. Although the majority does not address this scenario, its holding suggests that
-9-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
Finally, the majority's interpretation is contradicted by the Department of
Commerce's GMA development regulations and a formal attorney general opinion.
The Department of Commerce regulations incorporate RCW 19.27.097's
requirement that applicants for building permits provide evidence "of an adequate
water supply for the intended use of the building." WAC 365-196-825(1 ). The
regulations also state that cities and counties should consult 1992 Attorney General
Opinion No. 17 (AG Opinion), which interprets RCW 19.27.097's requirements "for
assistance in determining what substantive standards should be applied." WAC 365-
196-825(2). Formal attorney general opinions "are generally 'entitled to great
weight."' Five Corners Family Farmers v. State, 173 Wash. 2d 296,308,268 P.3d 892
(20 11) (quoting Seattle Bldg. & Constr. Trades Council v. Apprenticeship &
Training Council, 129 Wash. 2d 787, 803, 920 P.2d 581 (1996)).
The AG Opinion explains that "an 'adequate' water supply is one that is of
sufficient quality and sufficient quantity to satisfy the demand created by the new
building." 1992 Op. Att'y Gen. No. 17, at 7. Determining whether there is sufficient
quantity depends on the source of the water: a public water system or another water
source. !d. at 9-10. Moreover, this is solely a local determination. !d. ("[L]ocal
counties could not rely on the Department of Ecology's decision to close a basin, but would
instead have to engage in an independent analysis to determine if a proposed permit-exempt
withdrawal would, in fact, affect a senior water right before denying a building permit.
-10-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
building departments will be able to exercise greater discretion when determining
whether other water sources provide water of sufficient quality and quantity" than
they may exercise over public water systems). The AG Opinion explains that "any
applicant for a building permit who claims that the building's water will come from
surface or ground waters of the state, other than from a public water system, must
prove that he has a right to take such water." !d. at 10-11. In order to meet this
burden, the applicant must either have a permit from the Department of Ecology or
meet the requirements for a permit-exempt we11. 3 See id. (discussing permitting
requirements and exception). Nothing in the AG Opinion suggests a building permit
applicant must hire experts or undertake litigation to demonstrate that a permit-
exempt well will not impair any senior water right.
In a footnote, the AG Opinion explains that junior water rights-established
either by permit or by beneficial use of a permit-exempt well-may at times be
curtailed to ensure no impairment of senior water rights. See id. at 11 n.5. The AG
Opinion states,
3
To be eligible to utilize a permit-exempt well, the withdrawal of groundwater must
be "for stock-watering purposes, or for the watering of a lawn or of a noncommercial
garden not exceeding one-half acre in area, or for single or group domestic uses in an
amount not exceeding five thousand gallons a day, or as provided in RCW 90.44.052
[Whitman County clustered residential developments pilot project], or for an industrial
purpose in an amount not exceeding five thousand gallons a day." RCW 90.44.050.
-11-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
Although RCW 19.27.097 states that a water right permit from the
Department of Ecology may be evidence of an adequate water supply, we
believe that, because of the first-in-time doctrine, it may not be sufficient
evidence in cases where water is not actually available for withdrawal. In
areas experiencing drought severe enough to deprive those holding junior
water rights of water, for example, a local building department could require
evidence in addition to the water right that a sufficient quantity of water
actually would be available for the building to be constructed.
!d.
This statement should not be misconstrued to suggest that an applicant must
prove the legal availability of water before the local building department may grant
a building permit. It does not impose a mandate on local departments. Rather, this
passage in the AG Opinion describes a situation in which junior water rights have
been curtailed, and cautions that mere reliance on a Department of Ecology permit
may not be sufficient in such situations. But, the curtailment of junior water rights
occurs only after competing water rights have been resolved in superior court. See
Rettkowski v. Dep 'tofEcology, 122 Wn.2d219, 225,234, 858 P.2d 232 (1993), aff'd
in part and rev'd in part, 128 Wash. 2d 508, 910 P.2d 462 (1996). The AG Opinion
therefore suggests that a local building department could require additional evidence
of no impairment if there has already been a water rights determination and junior
rights have been curtailed. This limited situation will not affect the majority of
building permit applications.
-12-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
II. The Majority Misinterprets Kittitas Countyv. Eastern Washington Growth
Management Hearings Board and Postema v. Pollution Control Hearings
Board
The majority relies on Kittitas County to reach its holding that RCW
19.27.097 requires applicants to show that water is legally available, and that the
county, not the Department of Ecology, must make the ultimate determination of
water availability. See majority at 20 ("Through [RCW 19.27.097(1) and RCW
58.17.110(2)], the GMA requires counties to assure that water is both factually and
legally available. Kittitas County, 172 Wash. 2d at 179-80."). The majority
misinterprets that decision. In Kittitas County we invalidated Kittitas County's
subdivision regulations that allowed multiple, separately evaluated subdivision
applications for properties that are all part ofthe same development. We held such
regulations "tacitly allow[] subdivision applicants to evade this court's rule in
Campbell & Gwinn."4 Kittitas County, 172 Wash. 2d at 177 (citing Department of
Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 43 P.3d 4 (2002)). We held,
Without a requirement that multiple subdivision applications of
commonly owned property be considered together, the County cannot meet
the statutory requirement that it assure appropriate provisions are made for
potable water supplies. Instead, nondisclosure of common ownership
information allows subdivision applicants to submit that appropriate
4
In Campbell & Gwinn, we held that "commonly owned developments are not
.exempt [from water permitting requirements] and therefore must comply with the
established well permitting process if the total development uses more than 5,000 gallons
of water per day." Kittitas County, 172 Wash. 2d at 177.
-13-
Whatcom County, Hirst (Eric), eta!. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
provisions are made for potable water through exempt wells that are in fact
inappropriate under Campbell & Gwinn when considered as part of a
development, absent a permit. To interpret the County's role under RCW
58.17.110 to require the County to only assure water is physically
underground effectively allows the County to condone the evasion of our
state's water permitting laws.
!d. at 180.
The majority interprets this case to hold that the county must evaluate the
factual and legal availability of water. Majority at 20-21. What Kittitas County in
fact holds is that county regulations cannot circumvent the requirements for valid
permits issued by the Department of Ecology; subdivision applicants required to
obtain water permits must obtain valid permits. In Kittitas County, we assumed the
validity of permit-exempt wells, without requiring a further showing of no water
rights impairment. 172 Wash. 2d at 180. Thus, our decision in Kittitas County does
not support the majority's imposition of additional burdens on building permit
applicants and local jurisdictions.
The majority also improperly relies on our holding in Postema to conclude
that "[i]t would be incongruous to limit Postema to the holding that Ecology must
consider the effect of groundwater appropriations on minimum flows when issuing
permits but that [Whatcom] County does not need to consider these same impacts
when issuing building permits." Majority at 32. There are two problems with this
statement. First, it rests on the same faulty interpretation of RCW 19.27.097(1),
-14-
Whatcom County, Hirst (Eric), eta!. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
discussed above. Second, it is not "incongruous" to limit Postema's holding to the
facts of that case. By transposing a rule adopted for permitted wells into the permit-
exempt context, the majority ignores the distinction between these types of
withdrawals. See majority at 32. This statutory-based distinction is discussed in
greater detail below. While Postema requires the Department of Ecology to
determine if a permitted withdrawal of groundwater would negatively impact
instream flows, nothing in that decision, or in the GMA, shifts this burden onto
counties when individuals rely on permit-exempt wells. 5
III The Practical Effect of the Majority's Holding Is To Prevent New
Construction That Relies on Permit-exempt Wells
The majority's holding amounts to a policy decision that GMA counties
should not issue building permits that rely on permit-exempt groundwater
withdrawals. This is not a policy decision we are at liberty to make.
5
The majority finds additional support for its position "that counties must consider
minimmn flows when issuing building permits, even for developments relying on permit-
exempt wells" in Fox v. Skagit County, 193 Wash. App. 254, _P.3d_ (2016) (Division
One), petition for review filed, No. 93203-4 (Wash. June 7, 2016). Majority at 33. A
petition for review is pending in Fox, and it offers no greater authority than the decision
below, also from Division One of the Court of Appeals. See id. For the reasons explained
above, I would reject Division One's view that a county must determine whether a permit-
exempt well would infringe senior water rights before issuing a building permit. See id. at
271.
-15-
Whatcom County, Hirst (Eric), eta!. v. W. Wash. GrowthMgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
Determinations of water availability are complex and costly. We recognized
in Postema that "[t]he interrelationship [between groundwater withdrawals and
surface water] can be quite complex and effects are sometimes difficult or
impossible to measure in the field. Also, pumping groundwater may not have a
discemable effect on surface water until considerable time has passed, depending
upon the conditions." 142 Wash. 2d at 75-76. 6 The majority fails to acknowledge the
astronomical task it assigns to individual applicants. This task is particularly
difficult to justify in light of the smallness of permit-exempt withdrawals?
6
The majority relies on Postema for the proposition that the Department of
Ecology's understanding the effects of groundwater withdrawals on surface water has
changed over time. See majority at 10. The majority then states that because in Postema
we held the Department of Ecology must take these impacts into consideration when
issuing groundwater withdrawal permits, counties must also take these impacts into
account when issuing building permits. Id. at 10-11. As explained above, Postema does
not require counties to evaluate the legal availability of water when considering building
permits relying on permit-exempt wells. Furthermore, just because the Department of
Ecology's understanding of water has evolved does not mean that counties are required to
reevaluate the science behind the Department of Ecology's basin rules. If a party wishes
to challenge a basin rule because of"old" science, the party may do so under Washington's
Adruinistrative Procedure Act, chapter 34.05 RCW. A challenge to the county's
comprehensive plan is not the appropriate procedure.
7
Domestic use permit-exempt wells may not withdraw more than 5,000 gallons of
water per day. RCW 90.44.050. That equates to 3.47 gallons per minute (gpm). For
comparison, for houses constructed under the Department of Housing and Urban
Development mortgage insurance relying on individual water systems, "[t]he system
should be capable of delivering a flow of 5 gpm." 24 C.P.R. § 200.926d(f)(2)(i). The
withdrawals at issue in Postema were 280 gpm, 142 Wash. 2d at 101; 200 gpm, id. at 103;
3,500 gpm, id. at 108; 60 gpm, id. at 111; and 100 gpm, id. at 115.
-16-
Whatcom County, Hirst (Eric), et al. v. W. Wash. GrowthMgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
This is not to say that studying the effect of permit-exempt wells is
unimportant, just that it is unlikely to be undertaken by individuals applying for a
building permit. In a recent publication, the Department of Ecology explained what
is needed to assess the cumulative effects of permit-exempt groundwater
withdrawals. See ANN WESSEL, DEP'T OF ECOLOGY, DRAFT: MITIGATION OPTIONS
FOR THE IMPACTS OF NEW PERMIT-EXEMPT GROUNDWATER WITHDRAWALS 7-9
(2015). 8 "To understand how exempt well consumptive water use translates into
effects on streams at a local scale," one must consider multiple factors, including
well density, hydrogeologic factors, distribution of wells and well depths within the
subbasin, timing of withdrawals, difference in indoor and outdoor consumptive
water use, and tangential hydrologic changes due to landscape changes. Id. at 9.
"To evaluate the effects of groundwater withdrawals on particular streams, some
type of groundwater model is typically needed. If only one groundwater withdrawal
is being analyzed, a simple analytical program may suffice." Id. at 10. The cost of
building these models can be quite high. In a recent Court of Appeals case, it was
estimated that the cost of the "specific hydrogeological data and models [that] are
needed for informed decisions about managing and allocating water use and
8
This publication, number 15-11-017, is available at http://www.ecy.wa.gov/pro-
grams/wr/wrac/images/pd£'15-11-0 17-reviewdraft.pdf [https://perma.cc/SAM2-88WK].
-17-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
protecting surface flows in the Johns Creek basin" would be approximately
$300,000. Squaxin Island Tribe v. Dep 't of Ecology, 177 Wash. App. 734, 738, 312
P.3d 766 (2013). Once funding was obtained, it would take "at least two years to
perform the study and to make its results useable to decision-makers." I d.
Furthermore, to best determine the effect of any groundwater withdrawal, it
1s necessary to investigate the hydrogeology of all connected surface and
groundwaters. In a draft report discussing the appropriate technical methods for
assessing the effects of groundwater withdrawals on surface water, technical experts
from the Department of Ecology stated that "water-withdrawal proposals are always
best evaluated in the context of an entire watershed. Therefore, the Committee
recommends that tools and capacity be developed for basin-scale analysis of water
resources." DEP'T OF ECOLOGY, DRAFT: REPORT OF THE TECHNICAL ADVISORY
COMMITTEE ON THE CAPTURE OF SURFACE WATER BY WELLS ES-7 (1998).9 The
committee found that "the area of investigation for capture analysis must be large
enough that 100% of the capture for a well or group of wells can be accounted for;
this may only extend to the nearest surface water, but more often extends out ... to
the boundaries of the groundwater basin and, sometimes, beyond into adjoining
9
This publication, number WR-98-154, is available at https://fortress.wa.gov/ecy/
publications/documents/98154.pdf [https ://perma.cc/JS6H-S3DX].
-18-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
basins." ld. at 33. The committee recognized that "[a]ppropriate analysis and data
collection ... requires extensive effort, particularly if, as is frequently the case, the
capture analysis is done without the benefit of previously developed base
information on a basin's hydrogeology." ld. Given the complex nature of
groundwater and surface water interaction, the majority's conclusion that RCW
19.27.097 requires individual applicants to show no impairment will effectively halt
local departments from granting building permits.
The majority's holding pushes a massive, and likely insurmountable, burden
onto individuals applying for a building permit. This was not the legislature's intent
when it enacted RCW 19.27.097. 10 The exemption for small withdrawals of
10
See Richard L. Settle & Charles G. Gavigan, The Growth Management Revolution
in Washington: Past, Present, and Future, 16 U. PUGET SOUND L. REV. 867, 881-96 (1993)
(recounting full legislative history). Relevant here is that at the time the legislature enacted
RCW 19.27.097, it considered eliminating pennit-exempt wells. The original Engrossed
Substitute House Bill 2929 included a provision that removed the exemption; required
those who wanted to constmct a previously permit-exempt well to provide the Department
of Ecology with 60 days' notice; allowed the Department of Ecology to require those
wishing to construct a formerly exempt well "to apply for a water right permit if the area
within which the withdrawal would occur is lmown or believed to have problems related
to water availability, water quality, interference with existing water rights, or other related
problems which could be adversely affected by additional withdrawals of ground water";
and allowed the Department of Ecology to deny the permit "if water is not available, if the
use is not a beneficial use, if the use would adversely affect existing water rights, if the use
would threaten water quality or if the use would be inconsistent with a local comprehensive
plan." ENGROSSED SUBSTITUTE H.B. 2929, at 54-55, 51st Leg., Reg. Sess. (Wash. 1990).
The senate amended the bill, removing these provisions. S. AMEND. ENGROSSED
SUBSTITUTE H.B. 2929, 51st Leg., Reg. Sess. (Wash. 1990). After significant debate, see
-19-
Whatcom County, Hirst (Eric), et al. v. W: Wash. Growth Mgmt. Hr'gs Ed., 91475-3
(Stephens, J. Dissenting)
groundwater has "two evident and interrelated purposes: (1) to save the appropriator
of a very small withdrawal the trouble and expense of applying for a permit where
the effect of the withdrawal would be very slight; (2) to save the state the trouble
and expense of processing applications for small withdrawals with little impact on
the total water available." 1997 Op. Att'y Gen. No. 6, at 6. Requiring individual
building permit applicants to show that their small withdrawal of water will not
impair senior rights undermines both of these goals.
A far more sensible approach is to recognize that RCW 19.27.097 requires
applicants to show only that sufficient water is factually adequate to support the
proposed building, and that it is permissible for the county's regulations to follow
the Department of Ecology's Nooksack Rule. This holding is consistent with GMA
regulations and with the WRA. See WAC 365-196-825(3) ("If the department of
ecology has adopted rules on this subject [adequate potable water], or any part of it,
local regulations should be consistent with those rules. Such rules may include
instream flow rules ...."); RCW 90.54.040 (requiring the Department of Ecology
to develop and implement a comprehensive water resources program). It is also
consistent with Kittitas County, in which we stated that the Department of Ecology
Settle & Gavigan, supra, at 886-87, the bill that was ultimately signed by the governor did
not contain these provisions. See LAWS OF 1990, 1st Ex. Sess., ch. 17.
-20-
Whatcom County, Hirst (Eric), eta!. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
"ought to assist counties in their land use planning to adequately protect water
resources," and maintained its role as the administrator of water appropriations.
Kittitas County, 172 Wash. 2d at 180; see also Almgren v. Dep 't of Ecology, No. 11-
109c, 2014 WL 3700692, at *7 (Wash. Pollution Control Hr'gs Bd. July 1, 2014)
("to make these decisions [concerning water availability in land use permitting], the
local government relies on information and expertise from other agencies including
from Ecology." (citing Kittitas County, 172 Wash. 2d at 178)).
I would hold that the county's code is consistent with RCW 19.27.097 and
properly incorporates the Department of Ecology's Nooksack Rule. Thus, the
county complied with GMA requirements to protect water. Because the majority
holds otherwise, I respectfully dissent.
-21-
Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3
(Stephens, J. Dissenting)
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