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FILE 

l~l CLt:RKS OFFICE 

This opinion was filed for record 

at 9', ODO-M on ad ~I 2LMp 

&~ SUSAN L. .. ~· CARLSON 

SUPREME COURT CLERK 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

WHATCOM COUNTY, a municipal 

corporation, 

Respondent, 

) 

) 

) 

) 

) 

ERIC HIRST, LAURA LEIGH BRAKKE; ) 

WENDY HARRIS; DAVID STALHEIM; and ) 

FUTUREWISE, ) 

Petitioners, 

WESTERN WASHINGTON GROWTH 

MANAGEMENT HEARINGS BOARD, 

Defendant. 

) 

) 

) 

) 

) 

) 

) 

) 

No. 91475-3 

En Bane 

Filed __ O_f'_. T_0_6_2_0_16 __ 

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 Wn.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 Wn.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 Wn.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 Wn. App. 32, 44, 344 P.3d 1256, review granted, 183 Wn.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 Wn. 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 Wn.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 Wn.2d 571, 598, 311 

P.3d 6 (2013); Foster v. Dep't of Ecology, 184 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d at 552 (quoting 

Dep't of Ecology v. Pub. Uti/. Oist. 1 of Jefferson County, 121 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d 465. As scientific 

understanding of water resources has increased, so too have Washington's 

13 

 	 
	 
   
		

		

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 Wn.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 Wn.2d at 16; 

Swinomish Indian Tribal Cmty., 178 Wn.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 Wn.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 

14 

 	 
	 
   
		

		

Whatcom County, Hirst (Eric) v. W Wash. Growth Mgmt. Hr'gs Bd., No. 91475-3 

Swinomish Indian Tribal Cmty., 178 Wn.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 Wn.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 

15 

 	 
	 
   
		

		

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 

Wn.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). 

16 

 	 
	 
   
		

		

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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 permitexempt 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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d 304, 309, 237 P.3d 256 (2010); see also 

Tunstall v. Bergeson, 141 Wn.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 Wn.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 Wn.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 Wn.2d 

at 179. 

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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 

Wn.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 Wn.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 Wn.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 

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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 

Wn.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 permitexempt 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 Wn. 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 Wn.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 

1 0.8. 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 1 0.8, 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 factspecific 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 Wn.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 Wn.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 Wn.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 .... 

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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 Wn.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 Wn.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 Wn.2d 9, 28, 978 P.2d 481 (1999) (citing Yakima County (W Valley) 

Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.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 

Wn. 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 Wn.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 

Wn.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 of Ecology v. Campbell & Gwinn, LLC, 146 Wn.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 Wn.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 

surfaces so that more water goes into streams.4 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 Wn.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 

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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 Wn.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 Wn.2d 465, 473, 362 P.3d 959 

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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 

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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 

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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 Wn.2d 219, 225, 858 P.2d 232 (1993), a.ff'd in part and rev'd in 

part, 128 Wn.2d 508, 910 P.2d 462 (1996). 

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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 Wn.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 comprehensive planning, conflicts among water users and interests can be 

reduced or resolved. 

RCW 90.54.010(l)(b). 

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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 

Wn.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 

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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 Wn.2d 296,308,268 P.3d 892 

(20 11) (quoting Seattle Bldg. & Constr. Trades Council v. Apprenticeship & 

Training Council, 129 Wn.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. 

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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 permitexempt 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. 

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Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3 

(Stephens, J. Dissenting) 

!d. 

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. 

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 Wn.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. 

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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 Wn.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 Wn.2d at 177 (citing Department of 

Ecology v. Campbell & Gwinn, LLC, 146 Wn.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 Wn.2d at 177. 

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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 Wn.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), 

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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 permitexempt 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 permitexempt wells" in Fox v. Skagit County, 193 Wn. 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 permitexempt well would infringe senior water rights before issuing a building permit. See id. at 

271. 

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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 Wn.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. I d. 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 Wn.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. 

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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/programs/wr/wrac/images/pd£'15-11-0 17-reviewdraft.pdf [https://perma.cc/SAM2-88WK]. 

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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 Wn. 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]. 

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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 

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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. 

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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 Wn.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 Wn.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. 

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Whatcom County, Hirst (Eric), et al. v. W. Wash. Growth Mgmt. Hr'gs Bd., 91475-3 

(Stephens, J. Dissenting) 

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