Richard A. Fox And Marnie B. Fox, Apps. v. Skagit County, Res. , 193 Wash. App. 254 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
RICHARD A. FOX and MARNIE B.
FOX, husband and wife, NO. 73315-0-1
Appellants,
DIVISION ONE
SKAGIT COUNTY, a municipal
corporation, SKAGIT COUNTY
BOARD OF HEALTH, an RCW 70.05
local board of health, DALE PERNULA,
DIRECTOR of the SKAGIT COUNTY
PLANNING AND DEVELOPMENT
SERVICES and JENNIFER KINGSLEY,
DIRECTOR of the SKAGIT COUNTY
BOARD OF HEALTH AKA SKAGIT
COUNTY PUBLIC HEALTH
DEPARTMENT, STATE OF
WASHINGTON, DEPARTMENT OF
ECOLOGY, SWINOMISH INDIAN PUBLISHED OPINION
TRIBAL COMMUNITY,
Respondents. FILED: April 11, 2016
Lau, J. — Richard and Marnie Fox appeal the trial court's order denying their
motion for a writ of mandamus seeking to compel Skagit County to issue a building
permit. The Foxes argue the trial court erred when it ruled that the well on their
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property, despite being exempt from the water permit requirement, is not an adequate
water supply for purposes of the building permit statute because the well is subject to
senior water rights—namely, the 2001 instream flow rule for the Skagit River. We
conclude that a permit-exempt well under RCW 90.44.050 is subject to the prior
appropriation doctrine and therefore may be limited by senior water rights, including the
instream flow rule. Accordingly, because the Foxes' well may be interrupted, water is
not legally available for purposes of their building permit application. We affirm.
FACTS
The main facts are undisputed. In March 2014, Richard and Marnie Fox
submitted a building permit application to construct a single-family house near Sedro-
Woolly, Washington. Skagit County determined the building permit application was
"incomplete" because the Foxes failed to demonstrate that they had access to an
adequate and reliable source of water for the proposed home. Clerk's Papers (CP) at
666. The Foxes' only source of water is a well on their property. The parties agree the
well is in hydraulic continuity1 with the Skagit River. The 2001 instream flow rule curtails
the exercise of water rights when minimum flow requirements for the Skagit River are
not met. See generally. WAC 173-503. The parties agree that the Skagit River
regularly falls below the minimum flow requirement.2 The Foxes responded to the
County by claiming that despite the instream flow rule, their well was exempt from water
1 "Hydraulic continuity" is the term used to describe underground water sources
or aquifers that are connected to rivers and other surface water sources.
2 For example, since 2005, there have been 5 years where the river fell below the
minimum flow requirement for 100 days or more. Since 1995, the Skagit River has
fallen below the minimum for several days each year, ranging from a low of 29 days in
2013 to a high of 181 days in 2009.
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rights permitting requirements because they only sought groundwater for single
domestic use not to exceed 5,000 gallons per day. RCW 90.44.050 ("no withdrawal of
public groundwaters of the state shall be begun .. . EXCEPT, HOWEVER ... for single
or group domestic uses in an amount not exceeding five thousand gallons a day ....").
The County took no action following this response.
On May 23, the Foxes filed a petition for writ of mandamus in Skagit County
Superior Court, seeking to compel the County to either issue a building permit or
respond and show cause as to why the permit should not be issued. On June 6, the
trial court issued an alternative writ commanding the County to issue a building permit to
the Foxes or appear and show cause for declining to issue the permit. On June 26, the
County responded, reiterating that "[t]he Skagit River instream flows prescribed under
WAC 173-503 [the instream flow rule] apply to Mr. Fox's proposed use of permit-exempt
groundwater, and he has not demonstrated that his proposed groundwater withdrawal
will not impact flows in these tributaries and the Skagit River." CP at 234. In July 2014,
the trial court granted the Swinomish Indian Tribal Community's (the Tribe) and the
Department of Ecology's (the Department) motions to intervene in the action.
After considering briefs and oral argument, the trial court denied the Foxes'
petition for writ of mandamus. On February 2, 2015, the trial court entered its order
denying motion to affirm writ of mandamus. The trial court agreed with the Department
that the instream flow rule under WAC 173-503 governed permit-exempt groundwater
use that is in hydraulic continuity with the Skagit River, including the Foxes' well. The
trial court denied the Foxes' motion for reconsideration. The Foxes appeal.
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ANALYSIS
Standard of Review
A writ of mandamus "may be issued by any court ... to compel the performance
of an act which the law especially enjoins as a duty . ..." RCW 7.16.160. "[W]hether a
statute specifies a duty that the person must perform is a question of law." River Park
Souare. LLC v. Miggins. 143 Wash. 2d 68, 76,17 P.3d 1178 (2001). Accordingly, whether
the County had a legal duty to grant the Foxes' request for a building permit is a
question of law we review de novo. See Cost Momt. Serv.. Inc. v. City of Lakewood.
178 Wash. 2d 635, 649, 310 P.3d 804 (2013).
Permit-Exempt Wells are Subject to the Prior Appropriation Doctrine
The core issue in this case involves whether the prior appropriation doctrine
applies to a well that is exempt from the permit procedure to withdraw public
groundwater under RCW 90.44.050. We conclude that these permit-exempt wells are
subject to the prior appropriation doctrine. Therefore, the Foxes' well cannot infringe
senior water rights, including the 2001 instream flow rule.
An individual seeking a building permit must demonstrate to the local licensing
authority that an adequate water supply is available:
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.
RCW 19.27.097(1). "[C]ounties must assure that. . . water is both factually and legally
available." Kittitas Countv v. Eastern Wash. Growth Momt. Hr'gs Bd., 172Wn.2d 144,
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180, 256 P.3d 1193 (2011). The Foxes allege that water is "legally available" to their
proposed building because it is exempt from the water permit process under RCW
90.44.050:
After June 6,1945, no withdrawal of public groundwaters of the
state shall be begun, nor shall any well or other works for such withdrawal
be constructed, unless an application to appropriate such waters has been
made to the department and a permit has been granted by it as herein
provided; EXCEPT, HOWEVER ... 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 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. The Foxes' well is for domestic purposes and will draw less than
5,000 gallons per day. Thus, it is exempt from the permitting process, and they are
entitled to "a right equal to that established by a permit." RCW 90.44.050. The Foxes
contend this exemption satisfies the building permit requirement for "evidence of an
adequate water supply" because it is the legal equivalent of a "water right permit from
the department of ecology ... or another form sufficient to verify the existence of an
adequate water supply." RCW 19.27.097(1 ).3
Although this exemption from the water permitting process may establish a right
to withdraw groundwater, that right is not absolute. The overall statutory scheme and
case law both demonstrate that superior water rights may limit a right to withdraw
groundwater via a permit-exempt well.
3 The parties agree that the Foxes never sought a water right permit and that
obtaining water through a public utility is unlikely, so they were unable to obtain "a letter
from an approved water purveyor stating the ability to provide water." RCW
19.27.097(1).
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Appropriations of groundwater under chapter 90.44 RCW—the chapter
containing the Foxes' alleged "exemption"—are subject to the prior appropriation
doctrine. RCW 90.44.020 expressly provides that chapter 90.44 RCW "shall be
supplemental to chapter 90.03 RCW ... and is enacted for the purpose of extending the
application of such surface water statutes to the appropriation and beneficial use of
groundwaters within the state." RCW 90.44.020. Chapter 90.03 RCW, the general
water code, contains the longstanding principle that water appropriations have priority
over other appropriations acquired later in time: "as between appropriations, the first in
time shall be the first in right." RCW 90.03.010 (emphasis added). Chapter 90.44 RCW
acknowledges this same principle:
The rights to appropriate the surface waters of the state and the
rights acquired by the appropriation and use of surface waters shall not be
affected or impaired by any of the provisions of this supplementary
chapter [ch. 90.44 RCW] and, to the extent that any underground water is
part of or tributary to the source of any surface stream or lake, or that the
withdrawal of groundwater may affect the flow of any spring, water course,
lake, or other body of surface water, the right of an appropriator and owner
of surface water shall be superior to any subseouent right hereby
authorized to be acouired in or to groundwater.
RCW 90.44.030 (emphasis added). Water obtained under RCW 90.44.050 through
either a permit or a permit-exempt well constitutes an "appropriation." RCW 90.44.050
(describing a permit to withdraw water as "an application to appropriate such waters ...
." (emphasis added)). Therefore, because withdrawing water from a permit-exempt well
constitutes an appropriation, and because chapter 90.44 RCW is intended to "extendf ]
the application of such surface water statutes to the appropriation ... of groundwaters,"
RCW 90.44.020, appropriations under RCW 90.44.050 are subject to the general rule
that "first in time shall be first in right." RCW 90.03.010. Although the exemption under
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RCW 90.44.050 grants the Foxes a right to withdraw groundwater, like any other right to
appropriate groundwater, it is nevertheless subject to the longstanding rule that first in
time shall be first in right.
The superior right here is the minimum instream flow rule the Department
established for the Skagit River. See WAC 173-503. RCW 90.22.010 empowers the
Department to "establish minimum water flows or levels for streams, lakes or other
public waters ...." RCW 90.22.010. These minimum flow levels "constitute
appropriations within the meaning of this chapter with priority dates as of the effective
dates of their establishment." RCW 90.03.345. Accordingly, these minimum flow levels
are like any other water appropriation right—they cannot affect existing water rights, and
they take priority over subsequently established rights. See RCW 90.22.030; see also
Hubbard v. State. 86 Wash. App. 119, 936 P.2d 27 (1997). The Department promulgated
WAC 173-503 in 2001, establishing a minimum flow for the Skagit River. Like any water
appropriation, these minimum flow requirements take priority over subsequently
acquired water appropriations that would impair the Department's designated minimum
flow level. See Postema v. Pollution Control Hr'gs Bd.. 142 Wash. 2d 68, 81, 11 P.3d 726
(2000) ("Thus, a minimum flow set by rule is an existing right which may not be impaired
by subsequent groundwater withdrawals.").4 The statutory scheme dictates that the
4The Foxes cite the following passage from Postema several times in their brief:
"Additionally, we reject the premise that the fact that a stream has unmet flows
necessarily establishes impairment if there is an effect on the stream from groundwater
withdrawals." Postema. 142 Wash. 2d at 93. This does not support the Foxes' argument
that their permit-exempt well is not subject to the senior water rights protected by the
instream flow rule. The Foxes ignore the Court's language in the following paragraph:
"We hold that hydraulic continuity of an aquifer with a stream having unmet minimum
flows is not, in and of itself, a basis for denial of a groundwater application, and
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Foxes' right to withdraw water from their permit-exempt well is subject to the superior
water rights protected by the instream flow rule.
Washington Supreme Court authority is consistent with this interpretation. In
Dep't of Ecology v. Campbell & Gwinn. LLC. 146 Wash. 2d 1, 43 P.3d 4 (2002), the Court
unambiguously held that water obtained from a permit-exempt well is treated as any
other water right and is therefore subject to the prior appropriation doctrine:
While the exemption in RCW 90.44.050 allows appropriation of
groundwater and acquisition of a groundwater right without going through
the permit or certification procedures of chapter 90.44 RCW, once the
appropriator perfects the right by actual application of the water to
beneficial use, the right is otherwise treated in the same way as other
perfected rights. RCW 90.44.050. Thus, it is subject to the basic principle
of water rights acguired bv prior appropriation that the first in time is the
first in right.
Campbell & Gwinn. 146 Wash. 2d at 9 (emphasis added); see also Campbell & Gwinn. 146
Wash. 2d at 17 n.8 ("RCW 90.44.050 itself provides that a right acquired under the
exemption is to be treated as all other rights, and thus is subject to the prior
appropriation doctrine's first in time first in right principle.")5
accordingly affirm the superior courts. However, where there is hydraulic continuity and
withdrawal of groundwater would impair existing surface water rights, including
minimum flow rights, then denial is reguired." Postema. 142 Wash. 2d at 93 (emphasis
added). Therefore, the Foxes' permit-exempt well is still subject to Skagit River's
minimum flow rights.
5 The Foxes repeatedly cite Campbell & Gwinn for the proposition that the
statutory exemption in RCW 90.44.050 precludes the Department from employing the
four criteria for approval of a water rights permit under RCW 90.03.290, and that
therefore a permit-exempt well renders any consideration of existing water rights
unnecessary. See Campbell & Gwinn. 146 Wash. 2d at 16 ("Ecology does not engage in
the usual review of a permit application under RCW 90.03.290."). But the Foxes fail to
acknowledge that the Court expressly held that permit-exempt water rights under RCW
90.44.050 are nevertheless subject to prior appropriation doctrine and therefore may be
curtailed by senior water rights. Campbell & Gwinn. 146 Wash. 2d at 17 n.8
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The Court reiterated this point in Swinomish Indian Tribal Community v. Dep't of
Ecology, 178 Wash. 2d 571, 311 P.3d 6 (2013), where it addressed several 2006
amendments to the 2001 instream flow rule. The amendments sought to reserve water
for certain uses—including permit-exempt wells—despite whether those uses impaired
the minimum flow requirements for the Skagit River. Swinomish. 178 Wash. 2d at 578-79.
The Department recognized that the 2001 instream flow rule had priority over
subsequently acquired water rights, and it therefore believed reservations were
necessary to create water access for certain limited uses: "Ecology found that important
public interests would be significantly advanced by the reservations because without
them, new withdrawals ... would be interrupted when stream flows fall to the minimums
established under the 2001 Instream Flow Rule; new sources of water were otherwise
unavailable through most of the basin as a practical matter; and economic productivity
would be gained." Swinomish. 178 Wash. 2d at 579. The Department relied on the
"overriding considerations" exception in RCW 90.54.020(3)(a) to justify the reservations.
RCW 90.54.020(3)(a) ("Withdrawals of water which would conflict [with] [minimum flow
requirements] shall be authorized only in those situations where it is clear that
overriding considerations of the public interest will be served."). The Court held that
these reservations were invalid because the overriding-considerations exception could
not alter the priority date of water appropriations that would otherwise be subject to the
senior instream flow rule, including permit-exempt wells:
[T]he overriding-considerations exception cannot reasonably be
read to replace the many statutes that pertain to appropriation of the
state's water and minimum flows. Existing statutes govern applications to
beneficially use water for the purposes for which the reservations were
made here. For example, Ecology determined that noninterruptible water
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is needed for some domestic exempt wells because, while there is a
current provision for exempt wells, the appropriators' right to use the water
is subject to rights with priority in time. But exempt wells are provided for
by statute and Ecology's actions on applications for exempt wells are
clearly set out in the water code—without any provision permitting a "jump
to the head of the line" in priority as a result of Ecology's reservations of
water and use of the overriding-considerations exception. See RCW
90.44.050J14]
14- The dissent engages in a "factual analysis" intended to show
that exempt well uses and rural public water supply systems qualify under
a cost-benefit analysis for consideration under the overriding-
considerations exception. But the analysis simply shows what is always
true—there are hardships attendant to any water right with a later priority
date and too little water available to satisfy all rights. The dissent also
claims that the reallocations of water for exempt well users and rural
public water systems should be permitted since they involve only small
quantities of water and will have little impact on minimum flows. But the
overriding-considerations exception is not a grant of general authority to
reallocate water subject to existing water rights regardless of whether the
impact on minimum flows and instream uses would be substantial or
slight.
Swinomish, 178 Wash. 2d at 598 n.14 (emphasis added). Swinomish controls here: "the
appropriators' right to use the water [from a permit-exempt well] is subject to rights with
priority in time." Swinomish. 178 Wash. 2d at 598.6 The Foxes' right to use their permit-
exempt well is subject to the superior water rights protected by the 2001 instream flow
rule.
Both the statutory scheme and case law demonstrate that water is not legally
available for purposes of the Foxes' building permit. An exemption under RCW
90.44.050 provides a right to withdraw groundwater legally equivalent to the right
6The Foxes briefly mention that Swinomish was limited to circumstances where
someone actually applies for a water permit. But nothing in the statutory scheme or in
the Court's language in Swinomish suggests such a limitation. The Swinomish Court
meant exactly what it said: permit-exempt wells are subject to the prior appropriation
doctrine.
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obtained via a permit. Therefore, a permit-exempt well, like any other groundwater
appropriation, is subject to prior appropriation doctrine. RCW 90.03.010 ("as between
appropriations, the first in time shall be the first in right.") The Washington Supreme
Court recognized this straightforward reading of the statutory scheme in Campbell &
Gwinn: "RCW 90.44.050 itself provides that a right acquired under the exemption is to
be treated as all other rights, and thus is subject to the prior appropriation doctrine's first
in time first in right principle." Campbell & Gwinn. 146 Wash. 2d at 17 n.8. Because the
Foxes' permit-exempt well is subject to the prior appropriation doctrine, it cannot impair
the senior water rights protected by the 2001 instream flow rule. See RCW 90.22.030.
This is exactly what the Court held in Swinomish: "the appropriators' right to use the
water [from a permit-exempt well] is subject to rights with priority in time." Swinomish,
178 Wash. 2d at 598. In short, there is overwhelming legal authority that supports the trial
court's order denying the Foxes' motion for a writ of mandamus because water is not
legally available for their permit-exempt well. The statutory exemption grants them a
right to withdraw groundwater from their well. But this right cannot supersede senior
water rights such as the minimum flow requirement in the 2001 instream flow rule.
The Foxes' Remaining Arguments are Unpersuasive
The Foxes' remaining arguments purport to show that their well is not subject to
the senior water rights protected by the 2001 instream flow rule. We are not persuaded
by these arguments.
The building permit process must be consistent with state law
First, the Foxes argue that the County must issue a building permit when RCW
19.27.097 and relevant sections of the Skagit County Code (SCC) are satisfied. They
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rely on RCW 19.27.095(2), which provides that "[t]he requirements for a fully completed
application shall be defined by local ordinance." RCW 19.27.095(2). The SCC defines
"adequate water supply" as "a water supply which is capable of supplying at least three
hundred fifty (350) gallons of water per day, meets siting criteria established by State
and local regulations, and meets water quality standards in SCC 12.48.110." SCC §
12.48.030. According to the Foxes, because RCW 19.27.095(2) grants counties the
authority to define the requirements for a building application, the County here need
only apply its own definition of "adequate water supply" for purposes of the building
application process under RCW 19.27.097. Therefore, the County had no discretion to
consider the legal availability of water beyond its own local definition for "adequate
water supply," and the trial court erred when it assumed the 2001 instream flow rule
prevented the County from issuing a building permit.
The building permit process must be consistent with state law. The Foxes
suggest the County's analysis is limited to its own local ordinance. But the SCC
expressly provides that its provisions must comply with the state water code and the
instream flow rule specifically: "[t]he purpose of these rules is to ... (3) Whenever
possible, carry out powers in manners which are consistent with Chapter 90.54 RCW
and Chapters 173-503 and 173-505 WAC." SCC § 12.48.010(3) (emphasis added).
Contrary to the Foxes' argument, the County had the discretion to consider whether the
instream flow rule prevented legal access to water in this case.
Even under the County's own definition of "adequate water supply," water is
unavailable to the Foxes. As discussed above, permit-exempt wells like the Foxes' are
subject to the prior appropriation doctrine. See Swinomish. 178 Wash. 2d at 598. The
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Foxes' well may be interrupted any time the Skagit River falls below minimum flow
requirements under WAC 173-503. A well that is subject to interruption is not "capable
of supplying at least three hundred fifty (350) gallons of water per day." SCC §
12.48.030.
Under the Foxes' interpretation of the building permit statute and the SCC, the
County essentially has the authority to issue building permits in violation of state law.
This is an illogical result.
The Foxes concede that "[ordinances are to be interpreted consistent with state
law." Br. of Appellant at 14 (citing Eugster v. City of Spokane. 118 Wash. App. 383, 406,
76 P.3d 741 (2003)). A county cannot override state law. See Cannabis Action
Coalition v. City of Kent. 183 Wash. 2d 219, 227, 351 P.3d 151 (2015) ("state law preempts
a local ordinance when [it] permits what state law forbids or forbids what state law
permits."). The building permit application process must be consistent with state law,
including the hierarchy of water rights established by the prior appropriation doctrine.
Kittitas does not preclude consideration of the instream flow rule
The Foxes rely on Kittitas arguing the test for legal availability of water is satisfied
when an applicant properly qualifies for a permit-exempt well under RCW 90.44.050.
Kittitas is inapposite. Kittitas demonstrates that water is not legally available when
water access would infringe senior water rights:
The parties dispute whether the requirement of RCW 58.17.110
that counties assure appropriate provisions are made for potable water
supplies means only that counties must assure that water is factually
available underground or that water is both factually and legally available.
To interpret the County's role under RCW 58.17.110 to only require the
County to assure water is physically underground effectively allows the
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County to condone the evasion of our state's water permitting laws. This
could come at a great cost to the existing water rights of nearby property
owners, even those in adjoining counties, if subdivisions and
developments overuse the well permit exemption, contrary to law.
The [Growth Management Act] requires that counties provide for the
protection of groundwater resources and that county development
regulations comply with the GMA. The Board properly interpreted the
GMA's mandate to protect water to at least require that the County's
subdivision regulations conform to statutory requirements by not
permitting subdivision applications that effectively evade compliance with
water permitting requirements.
Kittitas. 172 Wash. 2d at 179-81. Nowhere in Kittitas does the Court suggest that a permit-
exempt well, alone, satisfies the "adequate water supply" requirement in RCW
19.27.097. Instead, Kittitas requires that water be legally available to permit applicants
and this analysis requires consideration of senior water rights.
Consideration of senior water rights is not confined to general stream
adjudications
The Foxes contend that "[t]o interpret the legal availability portion of 'adequate'
water in RCW 19.27.097 to include a determination by the County of priority of water
rights (i.e. the Foxes right versus the Instream Flow Rule), would be inconsistent...
with the general stream adjudication procedures which the legislature has vested solely
in the superior courts, initiated by Ecology, to afford proper due process." Br. of
Appellant at 16. We disagree. The County had authority to consider the priority of
water rights, including the instream flow rule.
The Foxes primarily rely on Rettkowski v. Dep't of Ecology. 122 Wash. 2d 219, 858
P.2d 232 (1993). In Rettkowski. the Court held that the Department had no authority to
issue cease and desist orders to water users it believed were infringing senior water
rights. Instead, the Department was required to use the general adjudication
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procedures under RCW 90.03. Rettkowski. 122 Wash. 2d at 234. But Rettkowski involved
water users with existing, valid permits. Rettkowski. 122 Wash. 2d at 236-37. The Court
acknowledged that, during the permit application process, the Department has the
authority to consider whether a water user infringes senior water rights: "The inquiry in
that situation is relatively straightforward: is there water available to apportion, is the
proposed use beneficial and not detrimental to the public interest, and is there any
conflict with existing water rights." Rettkowski. 122 Wash. 2d at 228. The County's
analysis under the building permit process is analogous. RCW 19.27.097. As
discussed above, the County's own local code provides that it should be applied
consistently with WAC 173-503 (the instream flow rule). The County had the authority
to consider whether the Foxes' well infringed senior water rights generally and the
instream flow rule in particular.
The Foxes lack any riparian or correlative water rights
Relying on Dep't of Ecology v. Abbott. 103 Wash. 2d 686, 694 P.2d 1071 (1985),
the Foxes argue their riparian or correlative right to use their well means this right is
superior to the instream flow rule. This argument fails.
In Abbott, the Court held that "the 1917 water code established prior
appropriation as the dominant water law in Washington" and that, "[a]fter 1917, new
water rights may be acquired only through compliance with the permit system and
existing water rights not put to beneficial use are relinquished." Abbott. 103 Wash. 2d at
687. The Foxes concede that the water code "removed all possibility of origination of
water rights from ... unused riparian rights to surface water." Br. of Appellant at 24.
They nevertheless cite Abbott for the proposition that "the groundwater code did not
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remove certain carefully circumscribed unused groundwater riparian rights because of
the exemptions in RCW 90.44.050." Br. of Appellant at 24.
The Foxes point to language where the Court suggests that a domestic
exemption existed for groundwater but not surface water:
The trial judge in this case, despite the shift away from the primacy
of riparian rights by the courts and Legislature, concluded that the
appropriative permit system embodied in the 1917 water code applied only
to surplus waters in excess of those required for "ordinary" or "natural"
domestic uses by riparians. He also interpreted the forfeiture provisions of
the water rights act as applying only to public uses enumerated in article
1, section 16 of the state constitution. Although we need not decide
questions concerning that here, even partial adoption of the trial court
opinion would effectively create a domestic use exemption from the permit
system and state management of water resources. The Legislature did
expressly create a domestic exemption in the groundwater code, RCW
90.44.050, but it has never seen fit to create such an exemption for
surface water.
Abbott. 103 Wash. 2d at 693. They claim this language shows the statutory exemption
saved riparian or correlative rights for domestic purposes.
This interpretation is inconsistent with the water code. Just as the 1917 code
eliminated riparian rights to surface water, the 1945 code eliminated riparian rights to
groundwater:
Subject to existing rights, all natural groundwaters of the state as
defined in RCW 90.44.035,... are hereby declared to be public
groundwaters and to belong to the public and to be subject to
appropriation for beneficial use under the terms of this chapter and not
otherwise.
RCW 90.44.040 (emphasis added). Further, the Supreme Court recognized the
purpose and effect of the groundwater code is the same as the surface water code
insofar as both "are premised on the doctrine of prior appropriation." Campbell &
Gwinn. 146 Wash. 2d at 7-8. The Abbott language suggests only that the statutory
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exemption under RCW 90.44.050 exempts some water users from the permit process,
not prior appropriation doctrine altogether. See Swinomish. 178 Wash. 2d at 598 ("the
appropriators' right to use the water [from a permit-exempt well] is subject to rights with
priority in time.").7
The instream flow rule applies to the Foxes' well
The Foxes disagree that the 2001 instream flow rule applies to their well.
Relying on RCW 90.54.010(1) and RCW 90.54.020(5), they argue that water must be
preserved for domestic use and no instream flow rule can limit permit-exempt domestic
wells. They also argue because RCW 90.03.247 requires permits to be conditioned to
protect instream flow rights, permit-exempt wells are not subject to such rights.
The Foxes' reliance on these statutes to create an exception to senior instream
flow rights is misplaced. RCW 90.03.345 expressly provides that minimum flow levels
"constitute appropriations ... with priority dates as of.. . their establishment." Courts
have consistently recognized that minimum flow levels have priority over subsequently
acquired rights, including permit-exempt wells. See Campbell & Gwinn. 146 Wash. 2d at
17 n.8; Swinomish. 178 Wash. 2d at 598. In Swinomish. the Court commented on several
of the statutes cited by the Foxes, noting they were not "meant to override minimum
flow rights" and do not "conflict with the statutes authorizing or mandating rules setting
minimum flows" or with those "respecting priority of minimum rights." Swinomish. 178
Wash. 2d at 585.
7 The Foxes rely on two other cases to support their riparian or correlative water
rights theory. See State Highway Comm'n v. Ponten. 77 Wash. 2d 463, 463 P.2d 150
(1969). Welch v. Dep't of Ecology. No. 98-108, 2000 WL 871699 (Wash. Pollution
Control Hr'gs Bd. May 4, 2000). Neither case is helpful.
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Nor do any of the Department rules suggest the instream flow rule does not
apply. The Foxes claim that WAC 173-503-040(5) and WAC 173-503-060 indicate that
instream flow rights apply only to permitted wells. WAC 173-503-040(5) states the
exact opposite:
Future consumptive water right permits issued hereafter for
diversion of surface water..., and withdrawal of groundwater in hydraulic
continuity with surface water in the Skagit River and perennial tributaries,
shall be expressly subject to instream flows established in [the Rule], and
also subject to WAC 173-503-060.
WAC 173-503-040(5) (emphasis added): see also Whatcom Countv v. Western Wash.
Growth Momt. Hearing Bd.. 186 Wash. App. 32, 60, 344 P.3d 1256 ("[WAC 173-503-
040(5)] expressly indicates that it governs permit-exempt uses of water.").
WAC 173-503-060 also fails to support the Foxes' claim. That rule provides:
If the department determines that there is hydraulic continuity
between surface water and the proposed ground water source, a water
right permit or certificate shall not be issued unless the department
determines that withdrawal of ground water from the source aquifer would
not interfere with stream flows during the period of stream closure or with
maintenance of minimum instream flows.
WAC 173-503-060. The Foxes contend that because this rule omits permit-exempt
wells, the instream flow rule applies only to permitted wells. But nothing in this rule
limits the other rules in the same section that unambiguously provide that the instream
flow rule applies to all groundwater withdrawals including permit-exempt wells. See
WAC 173-503-040(5), 173-503-050(1 )-(2): see also Whatcom Countv. 186 Wash. App. at
60, Swinomish. 178 Wash. 2d at 598.
The Foxes selectively highlight portions of the rule-making record to support their
argument that the instream flow rule does not apply to permit-exempt wells. These
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excerpts were not submitted to the trial court. In any event, the record shows the
Department intended to apply the instream flow rule to all future appropriations,
including permit-exempt wells. The instream flow rule was developed in part to "reduce
the use of exempt wells in those areas of the County experiencing inadequate instream
flows ... as a result of groundwater withdrawal." CP at 343-45; see also CP at 35
("Exempt wells are virtually everywhere, including adjacent to small tributaries that dry
up in the summer. Clusters of these exempt wells could have a detrimental effect on
these small streams."). No statute or administrative rule protects the Foxes' well from
the instream flow rule.
The Foxes lack any senior water right
The Foxes argue they have an appropriative water right senior to the 2001
instream flow rule. The Foxes failed to present evidence that they manifested the
requisite intent to appropriate the water necessary for their proposed building.
In order to establish a common law appropriative water right, the Foxes must
show "an intention to appropriate followed by a reasonable diligence in applying the
water to a beneficial use." In re Rights to Waters of Alpowa Creek. 129 Wash. 9, 13,
224 P. 29 (1924). If both elements are met, the date of priority of the right will "relate
back" to the time work was first performed to appropriate the water. Hunter Land Co. v.
Lauoenour. 140 Wash. 558, 565, 250 P. 41 (1926).
The Foxes argue that they manifested sufficient intent to appropriate the water
when they subdivided their property in 2000, dividing the lot into two plots. This is not
sufficient to prove an appropriative water right. A water right's priority date will relate
back to the "first step" of an appropriation, which is "complete when overt acts coalesce
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No. 73315-0-1/20
to openly demonstrate the applicant's intent to appropriate the water for a beneficial
use." In re Water Rights of Vouoht. 76 P.3d 906, 912 (Colo. 2003). Such intent must
be for a "fixed purpose to pursue diligently a certain course of action to take and
beneficially use water from a particular source." In re Right to Water in Water Dist. No.
36, 696 P.2d 730, 745 (Colo. 1985). Mere subdivision of property cannot meet this level
of intent. The Foxes did nothing with the property for several years. Between 2000 and
2014 they rented the land to neighbors, who used it as a horse pasture. The Foxes
began construction on their well in 2011. The record fails to show the necessary
diligence to support an appropriative right in 2000.
No duty to mitigate by the Department
RCW 90.54.020(5) provides: "[a]dequate and safe supplies of water shall be
preserved and protected in potable condition to satisfy human domestic needs." The
Foxes argue that this subsection imposes a duty to mitigate on the Department. They
claim to "preserve" an "adequate" supply of water, the Department must allow the Foxes
to access water despite the instream flow rule. No legal authority supports this
interpretation. See DeHeer v. Seattle Post-Intelligencer. 60 Wash. 2d 122, 126, 372 P.2d
193 (1962) ("Where no authorities are cited in support of a proposition, the court is not
required to search out authorities, but may assume that counsel, after diligent search,
has found none."). The Foxes' interpretation means that certain uses will always
supersede appropriative water rights. Neither the water code nor case authority
suggests that the statutory scheme provides the Department the authority to override
appropriated water rights. Indeed, this reasoning was central to the Court's Swinomish
decision. See Swinomish. 178 Wash. 2d at 598.
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No. 73315-0-1/21
The Foxes' due process claim fails
The Foxes argue the County's denial of a building permit violated their due
process rights. Arguably, we may ignore this argument because the issue was not
sufficiently argued at the trial court and is inadequately briefed. RAP 2.5(a); Norcon
Builders. LLC v. GMP Homes VG. LLC. 161 Wash. App. 474, 486, 254 P.3d 835 (2011)
("We will not consider an inadequately briefed argument.").
In any event, the Foxes' due process claim fails. The Foxes have failed to show
a sufficient property interest. Greenhaloh v. Dep't of Corrections. 180 Wash. App. 876,
890, 324 P.3d 771 (2014) ("A threshold matter to a procedural or substantive due
process claim is whether the plaintiff possessed a property interest."). The Foxes have
no property interest because their permit-exempt well is subject to the senior water
rights protected by the instream flow rule.
Even if we assume a property interest, the Foxes fail to address the remaining
analysis of their due process claim. After concluding that a sufficient property interest is
at stake, the reviewing court must then inquire "(1) whether the regulation aims to
achieve a legitimate public purpose, (2) whether the means adopted are reasonably
necessary to achieve that purpose, and (3) whether the regulation is unduly oppressive
on the property owner." Robinson v. City of Seattle. 119 Wash. 2d 34, 51, 830 P.2d 318
(1992). The Foxes fail to analyze any of these considerations. "[N]aked castings into
the constitutional sea are not sufficient to command judicial consideration and
discussion." Seven Gables Corp. v. MGM/UA Entertainment Co.. 106 Wash. 2d 1, 14, 721
P.2d 1 (1986) (quoting United States v. Phillips. 433 F.2d 1364, 1366 (8th Cir. 1970)).
The Foxes' argument erodes the legal framework for appropriative water rights. That
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No. 73315-0-1/22
some water rights must necessarily acquiesce to senior water rights is a natural
consequence of the prior appropriation doctrine. See, e.g.. Swinomish. 178 Wash. 2d at
598, n.14 ("there are hardships attendant to any water right with a later priority date and
too little water available to satisfy all rights.").
For similar reasons, Skagit County's due process argument also fails. The
County contends the Department's instream flow rule interpretation violates the Foxes'
due process rights because it repeals a statutory right by implication. Like the Foxes,
the County's argument assumes the right granted under in RCW 90.44.050's exemption
exists outside of prior appropriation doctrine. As discussed above, the right to withdraw
water via a permit-exempt well under RCW 90.44.050 is like any other water right. That
right is subject to senior rights, such as the instream flow rule. Contrary to the County's
argument, the Department's instream flow rule interpretation does not "vitiate a statutory
right by silence," Br. of Skagit County at 21. The statutory right includes only an
exemption from the permit process, includes no right to "jump to the head of the line" of
priority. Swinomish. 178 Wash. 2d at 598.
We also reject the County's claim that the Department's instream flow rule
interpretation is "new." The County was on notice that the rule might infringe permit-
exempt wells with later priority dates. For example, the introductory comments to the
proposed rule provide that it "would affect all future water use, if not exempted," CP at
277, and permit-exempt wells are not listed in the exemptions section of the rule. WAC
173-503-070. In the responsiveness summary and concise explanatory statement for
the rule, issued in March 2001, the Department explained that "[groundwater
withdrawals will be treated as surface water appropriations unless the applicant can
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No. 73315-0-1/23
demonstrate the withdrawal is not hydraulically connected to the river." CP at 321. In
that same statement, the Department explained a statutory exemption exempts well
users only from the permit process, but those permit-exempt wells remain subject to
senior water rights:
Ecology has made statements in the environmental documents and public
hearing to clarify that an exempt well is only exempt from permit
reouirements. It becomes a water right when it is drilled and put to
beneficial use. It has a priority date (the date it is put to beneficial use)
and could be junior to the instream flow if put to beneficial use after the
effective date of the rule. The priority date of the exempt well could
become important during a time of scarcity when senior rights would have
to be protected.
CP at 322 (emphasis added). The County demonstrated the same understanding of the
rule in a 2003 petition for review challenging the rule's validity. The County expressly
acknowledged permit-exempt wells were subject to senior water rights, including the
instream flow rule. Thus, the wells could not provide an adequate water supply for
purposes of the building permit statute:
Though exempt from [permitting under] RCW 90.44.050, exempt wells,
like any other water use, exist within Washington's prior appropriation
scheme. This means that exempt wells that are junior to the [rule] can be
interrupted if the [rule's] instream flow level... is not being met.
Interruptible water sources do not meet the requirements for an adequate
reliable supply of water needed to authorize issuance of a building permit
under RCW 19.27.097.
CP at 10. In 2001, the Department believed the instream flow rule would supersede
subsequently acquired water rights such as permit-exempt wells, and the County
understood this interpretation. As discussed above, this interpretation properly
conforms with the statutory scheme and case law. See Swinomish. 178 Wash. 2d at 598.
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CONCLUSION
For reasons discussed above, we affirm.
WE CONCUR:
\r)f.t{v\r^ l» Jx c^rXt J.
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