IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RICHARD A. FOX and MARNIE B. FOX, husband and wife, Appellants,

SKAGIT COUNTY, a municipal corporation, SKAGIT COUNTY BOARD OF HEALTH, an RCW 70.05 local board of health, DALE PERNULA, DIRECTOR of the SKAGIT COUNTY PLANNING AND DEVELOPMENT SERVICES and JENNIFER KINGSLEY, DIRECTOR of the SKAGIT COUNTY BOARD OF HEALTH AKA SKAGIT COUNTY PUBLIC HEALTH DEPARTMENT, STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY, SWINOMISH INDIAN TRIBAL COMMUNITY, Respondents. NO. 73315-0-1

DIVISION ONE

PUBLISHED OPINION FILED: April 11, 2016 Lau, J. — Richard and Marnie Fox appeal the trial court's orderdenying their 

### motion for a writ ofmandamus seeking to compel Skagit County to issue a building 

### permit. The Foxes argue the trialcourterred when it ruled thatthe well on theirNo. 73315-0-1/2 

### property, despite being exemptfrom the water permit requirement, is not an adequate water supply for purposes ofthe building permit statute because the well is subjectto seniorwater rights—namely, the 2001 instream flow rule for the Skagit River. We conclude that a permit-exemptwell under RCW 90.44.050 is subjectto the prior appropriation doctrine and therefore may be limited by seniorwater rights, including the instream flow rule. Accordingly, because the Foxes' well may be interrupted, water is not legally available for purposes oftheir building permit application. We affirm. FACTS The main facts are undisputed. In March 2014, Richard and Marnie Fox submitted a building permit application to construct a single-family house near SedroWoolly, Washington. SkagitCounty determined the building permit application was "incomplete" because the Foxes failed to demonstrate that they had access to an adequate and reliable source ofwaterfor the proposed home. Clerk's Papers (CP) at 666. The Foxes' only source ofwater is a well on their property. The parties agree the 

### well is inhydraulic continuity1 withthe Skagit River. The 2001 instream flow rule curtails the exercise ofwater rights when minimum flow requirements for the Skagit River are not met. See generally. WAC 173-503. The parties agree that the Skagit River 

### regularly falls below the minimum flow requirement.2 The Foxes responded to the County by claiming that despite the instream flow rule, theirwell was exemptfrom water



### 1"Hydraulic continuity" is the term used to describe underground water sources or aquifers that are connected to rivers and othersurface water sources. 

### 2For example, since 2005, there have been 5 years where the riverfell below the minimum flow requirementfor 100 days or more. Since 1995, the Skagit River has fallen below the minimum for several days each year, ranging from a low of29 days in 2013 to a high of 181 days in 2009.No. 73315-0-1/3 rights permitting requirements because they only sought groundwaterfor single domestic use not to exceed 5,000 gallons per day. RCW 90.44.050 ("no withdrawal of public groundwaters ofthe state shall be begun
.. . EXCEPT, HOWEVER
... for single
or group domestic uses in an amount not exceeding five thousand gallons a day ...."). The County took no action following this response. 

### On May 23, the Foxes filed a petition for writ ofmandamus inSkagitCounty SuperiorCourt, seeking to compel the County to either issue a building permit or respond and show cause as to why the permit should not be issued. On June 6, the 

### trialcourt issued an alternative writcommanding the County to issue a building permitto the Foxes or appear and show cause for declining to issue the permit. On June 26, the County responded, reiterating that "[t]he Skagit River instream flows prescribed under WAC 173-503 [the instream flow rule] apply to Mr. Fox's proposed use of permit-exempt 

### groundwater, and he has not demonstrated that his proposed groundwaterwithdrawal will not impactflows inthese tributaries and the Skagit River." CP at 234. InJuly 2014, 

### the trial court granted the Swinomish Indian Tribal Community's (the Tribe) and the Departmentof Ecology's (the Department) motions to intervene inthe action. After considering briefs and oral argument, the trial courtdenied the Foxes' 

### petition for writ ofmandamus. On February 2, 2015, the trialcourtentered its order denying motion to affirm writ ofmandamus. The trialcourt agreed withthe Department thatthe instream flow rule underWAC 173-503 governed permit-exempt groundwater


### use that is inhydraulic continuity withthe Skagit River, including the Foxes' well. The trial court denied the Foxes' motion for reconsideration. The Foxes appeal.

-3-No. 73315-0-1/4

ANALYSIS Standard of Review A writ of mandamus "may be issued by any court ... to compel the performance of an actwhich the law especially enjoins as a duty
. ..." RCW 7.16.160. "[W]hether a statute specifies a duty thatthe person must perform is a question of law." River Park Souare. LLC v. Miggins. 143 Wn.2d 68, 76,17 P.3d 1178 (2001). Accordingly, whether the County had a legal duty to grantthe Foxes' request for a building permit is a question of law we review de novo. See Cost Momt. Serv.. Inc. v. City of Lakewood. 178 Wn.2d 635, 649, 310 P.3d 804 (2013). Permit-Exempt Wells are Subject to the Prior Appropriation Doctrine The core issue in this case involves whetherthe prior appropriation doctrine applies to a well that is exemptfrom the permit procedure to withdraw public 

### groundwater under RCW 90.44.050. We conclude thatthese permit-exemptwells are subjectto the prior appropriation doctrine. Therefore, the Foxes' well cannot infringe 

### seniorwater rights, including the 2001 instream flow rule. An individual seeking a building permit mustdemonstrate to the local licensing 

### authority that an adequate water supply is available: Each applicantfor a building permit of a building necessitating 

### potable water shall provide evidence ofan adequate water supply forthe intended use ofthe building. Evidence may be inthe form of a water right permitfrom the department ofecology, a letterfrom an approved water 

### purveyor stating the ability to provide water, or anotherform sufficientto verify the existence ofan adequate water supply. RCW 19.27.097(1). "[C]ounties must assure that.
. . water is both factually and legally available." Kittitas Countv v. Eastern Wash. Growth Momt. Hr'gs Bd., 172Wn.2d 144,

-4-No. 73315-0-1/5 

### 180, 256 P.3d 1193 (2011). The Foxes allege thatwater is "legally available" to their proposed building because it is exemptfrom the water permit process under RCW 90.44.050: After June 6,1945, no withdrawal ofpublic groundwaters ofthe state shall be begun, nor shall any well or otherworks for such withdrawal be constructed, unless an application to appropriate such waters has been made to the department and a permit has been granted by itas herein 

### provided; EXCEPT, HOWEVER
... for single or group domestic uses in an amount not exceeding five thousand gallons a day
... is and shall be exemptfrom the provisions ofthis section, but, to the extentthat is regularly used beneficially, shall be entitled to a right equal to that established by a permit issued underthe provisions ofthis chapter. RCW 90.44.050. The Foxes' well is for domestic purposes and will draw less than 5,000 gallons perday. Thus, it is exemptfrom the permitting process, and they are entitled to "a right equal to that established by a permit." RCW 90.44.050. The Foxes contend this exemption satisfies the building permit requirementfor "evidence ofan adequate water supply" because it is the legal equivalent of a "water right permitfrom the department ofecology
... or anotherform sufficientto verify the existence ofan 

### adequate water supply." RCW 19.27.097(1).3 Although this exemption from the water permitting process may establish a right to withdraw groundwater, that right is not absolute. The overall statutory scheme and
case law both demonstrate that superiorwater rights may limit a right to withdraw 

### groundwatervia a permit-exemptwell.



### 3The parties agree thatthe Foxes never soughta water rightpermitand that obtaining waterthrough a public utility is unlikely, so they were unable to obtain "a letter from an approved water purveyor stating the ability to provide water." RCW 19.27.097(1). -5-No. 73315-0-1/6 

### Appropriations ofgroundwater underchapter 90.44 RCW—the chapter containing the Foxes' alleged "exemption"—are subjectto the priorappropriation doctrine. RCW 90.44.020 expressly provides that chapter90.44 RCW "shall be 

### supplemental to chapter90.03 RCW
... and is enacted forthe purpose ofextending the application ofsuch surface water statutes to the appropriation and beneficial use of groundwaters within the state." RCW 90.44.020. Chapter90.03 RCW, the general watercode, contains the longstanding principle thatwater appropriations have priority
over other appropriations acquired later in time: "as between appropriations, the first in 

### time shall be the first in right." RCW 90.03.010 (emphasis added). Chapter90.44 RCW acknowledges this same principle: The rights to appropriate the surface waters ofthe state and the rights acquired by the appropriation and use of surface waters shall not be 

### affected or impaired by any ofthe provisions of this supplementary chapter [ch. 90.44 RCW] and, to the extentthat any underground water is partof or tributary to the source ofany surface stream or lake, or thatthe withdrawal ofgroundwater may affectthe flow of any spring, watercourse, lake, or other body of surface water, the right of an appropriator and owner of surface water shall be superior to any subseouent right hereby authorized to be acouired in or to groundwater. 

### RCW 90.44.030 (emphasis added). Waterobtained under RCW 90.44.050 through either a permit or a permit-exemptwell constitutes an "appropriation." RCW 90.44.050 (describing a permitto withdraw water as "an application to appropriate such waters ... ." (emphasis added)). Therefore, because withdrawing waterfrom a permit-exemptwell constitutes an appropriation, and because chapter90.44 RCW is intended to "extendf] the application of such surface water statutes to the appropriation
... of groundwaters," RCW 90.44.020, appropriations under RCW 90.44.050 are subjectto the general rule that "first in time shall be first in right." RCW 90.03.010. Although the exemption under
-6-No. 73315-0-1/7


### RCW 90.44.050 grants the Foxes a right to withdraw groundwater, likeany other right to appropriate groundwater, it is nevertheless subjectto the longstanding rule thatfirst in time shall be first in right. The superior right here is the minimum instream flow rule the Department established for the Skagit River. See WAC 173-503. RCW 90.22.010 empowers the Departmentto "establish minimum waterflows or levels for streams, lakes orother public waters ...." RCW 90.22.010. These minimum flow levels "constitute appropriations within the meaning ofthis chapterwith priority dates as ofthe effective 

### dates oftheir establishment." RCW 90.03.345. Accordingly, these minimum flow levels
are like any otherwater appropriation right—they cannot affect existing water rights, and they take priority over subsequently established rights. See RCW 90.22.030; see also 

### Hubbard v. State. 86 Wn. App. 119, 936 P.2d 27 (1997). The Departmentpromulgated WAC 173-503 in 2001, establishing a minimum flow for the Skagit River. Like any water appropriation, these minimum flow requirements take priority over subsequently acquired water appropriations that would impairthe Department's designated minimum flow level. See Postema v. Pollution Control Hr'gs Bd.. 142 Wn.2d 68, 81, 11 P.3d 726 (2000) ("Thus, a minimum flow set by rule is an existing right which may not be impaired 

### bysubsequentgroundwaterwithdrawals.").4 The statutory scheme dictates that the

4The Foxes cite the followingpassage from Postema several times in their brief: "Additionally, we reject the premise thatthe fact that a stream has unmetflows necessarily establishes impairment ifthere is an effect on the stream from groundwater withdrawals." Postema. 142Wn.2d at 93. This does not supportthe Foxes' argument thattheir permit-exemptwell is not subjectto the seniorwater rights protected by the instream flow rule. The Foxes ignore the Court's language inthe following paragraph: "We hold that hydraulic continuity of an aquiferwith a stream having unmet minimum flows is not, in and of itself, a basis for denial of a groundwater application, and -7-No. 73315-0-1/8
Foxes' right to withdraw waterfrom their permit-exemptwell is subjectto the superior water rights protected by the instream flow rule. Washington Supreme Court authority is consistentwith this interpretation. In Dep't of Ecology v. Campbell &Gwinn. LLC. 146Wn.2d 1, 43 P.3d 4 (2002), the Court unambiguously held that waterobtained from a permit-exemptwell is treated as any 

### otherwater right and is therefore subjectto the prior appropriation doctrine: While the exemption in RCW 90.44.050 allows appropriation of 

### groundwater and acquisition of a groundwater right without going through the permitorcertification procedures ofchapter90.44 RCW, once the appropriator perfects the right by actual application ofthe waterto beneficial use, the right is otherwise treated in the same way as other perfected rights. RCW 90.44.050. Thus, it is subject to the basic principle of water rights acguired bv prior appropriation that the first in time is the first in right. 

### Campbell & Gwinn. 146Wn.2d at9 (emphasis added); see also Campbell & Gwinn. 146 Wn.2d at 17 n.8 ("RCW 90.44.050 itself provides that a right acquired underthe 

### exemption is to be treated as all other rights, and thus is subjectto the prior 

### appropriationdoctrine's first in time first in rightprinciple.")5
accordingly affirm the superiorcourts. However, where there is hydraulic continuity and withdrawal of groundwater would impair existing surface water rights, including minimum flow rights, then denial is reguired." Postema. 142Wn.2d at 93 (emphasis 

### added). Therefore, the Foxes' permit-exemptwell is stillsubjectto Skagit River's minimum flow rights. 5The Foxes repeatedly cite Campbell &Gwinn for the proposition thatthe 

### statutory exemption in RCW90.44.050 precludes the Departmentfrom employing the four criteriafor approval of a water rights permit under RCW 90.03.290, and that 

### therefore a permit-exemptwell renders any consideration ofexisting water rights unnecessary. See Campbell & Gwinn. 146 Wn.2d at 16 ("Ecology does not engage in the usual review of a permit application under RCW 90.03.290."). Butthe Foxes fail to 

### acknowledge that the Courtexpressly held that permit-exempt water rights under RCW 90.44.050 are nevertheless subjectto prior appropriation doctrine and therefore may be curtailed by seniorwater rights. Campbell & Gwinn. 146Wn.2d at 17 n.8 -8-No. 73315-0-1/9
The Court reiterated this point in Swinomish Indian Tribal Community v. Dep't of Ecology, 178Wn.2d 571, 311 P.3d 6 (2013), where itaddressed several 2006 amendments to the 2001 instream flow rule. The amendments soughtto reserve water for certain uses—including permit-exemptwells—despite whether those uses impaired the minimum flow requirements for the Skagit River. Swinomish. 178 Wn.2d at 578-79. The Department recognized thatthe 2001 instream flow rule had priority over subsequently acquired water rights, and ittherefore believed reservations were necessary to create water access for certain limited uses: "Ecology found that important public interests would be significantly advanced by the reservations because without them, new withdrawals
... would be interrupted when stream flows fall to the minimums established under the 2001 Instream Flow Rule; new sources ofwater were otherwise unavailable through most ofthe basin as a practical matter; and economic productivity would be gained." Swinomish. 178 Wn.2d at 579. The Department relied on the 

### "overriding considerations" exception in RCW 90.54.020(3)(a) to justify the reservations. RCW 90.54.020(3)(a) ("Withdrawals ofwaterwhich would conflict [with] [minimum flow requirements] shall be authorized only inthose situations where it is clearthat overriding considerations ofthe public interestwill be served."). The Court held that these reservations were invalid because the overriding-considerations exception could 

### not alterthe prioritydate ofwater appropriations that would otherwise be subjectto the senior instream flow rule, including permit-exempt wells: 

### [T]he overriding-considerations exception cannot reasonably be 

### read to replace the many statutes that pertain to appropriation ofthe state's water and minimum flows. Existing statutes govern applications to beneficially use waterfor the purposes for which the reservations were 

### made here. For example, Ecology determined that noninterruptible water
-9-No. 73315-0-1/10
is needed for some domestic exemptwells because, while there is a current provision for exempt wells, the appropriators' right to use the water 

### is subjectto rights with priority in time. But exemptwells are provided for by statute and Ecology's actions on applications for exemptwells are 

### clearly setout inthe watercode—without any provision permitting a "jump to the head ofthe line" in priority as a result ofEcology's reservations of water and use ofthe overriding-considerations exception. See RCW 90.44.050J14] 

### 14- The dissent engages in a "factual analysis" intended to show that exemptwell uses and rural public water supply systems qualify under 

### a cost-benefit analysis for consideration underthe overridingconsiderations exception. But the analysis simply shows what is always true—there are hardships attendantto anywater right with a laterpriority date and too littlewater available to satisfy all rights. The dissent also claims that the reallocations ofwaterfor exempt well users and rural public water systems should be permitted since they involve only small quantities of water and willhave little impact on minimum flows. But the overriding-considerations exception is not a grant of general authority to reallocate water subjectto existing water rights regardless ofwhetherthe impact on minimum flows and instream uses would be substantial or slight. Swinomish, 178 Wn.2d at 598 n.14 (emphasis added). Swinomish controls here: "the appropriators' right to use the water [from a permit-exempt well] is subjectto rights with 

### priority in time." Swinomish. 178 Wn.2d at 598.6 The Foxes' right to use their permitexemptwell is subjectto the superiorwater rights protected by the 2001 instream flow rule. Both the statutory scheme and case law demonstrate that water is not legally 

### available for purposes ofthe Foxes' building permit. An exemption under RCW 90.44.050 provides a right to withdraw groundwater legally equivalentto the right

6The Foxes briefly mention that Swinomish was limited to circumstances where someone actually applies for a water permit. But nothing inthe statutory scheme or in the Court's language in Swinomish suggests such a limitation. The Swinomish Court meant exactly what itsaid: permit-exemptwells are subjectto the prior appropriation doctrine. -10-No. 73315-0-1/11
obtained via a permit. Therefore, a permit-exempt well, like any other groundwater appropriation, is subjectto prior appropriation doctrine. RCW 90.03.010 ("as between appropriations, the first intime shall be the first in right.") The Washington Supreme 

### Court recognized this straightforward reading ofthe statutory scheme inCampbell & Gwinn: "RCW 90.44.050 itself provides that a right acquired underthe exemption is to be treated as all other rights, and thus is subjectto the prior appropriation doctrine's first intime first in right principle." Campbell &Gwinn. 146Wn.2d at 17 n.8. Because the Foxes' permit-exemptwell is subjectto the prior appropriation doctrine, itcannot impair 

### the seniorwater rights protected by the 2001 instream flow rule. See RCW 90.22.030. This is exactly what the Court held in Swinomish: "the appropriators' right to use the water [from a permit-exemptwell] is subjectto rights with priority intime." Swinomish, 178 Wn.2d at 598. In short, there is overwhelming legal authority that supports the trial 

### court's orderdenying the Foxes' motion for a writ of mandamus because water is not legally available for their permit-exemptwell. The statutory exemption grants them a right to withdraw groundwaterfrom theirwell. Butthis rightcannot supersede senior water rights such as the minimum flow requirement inthe 2001 instream flow rule. The Foxes' Remaining Arguments are Unpersuasive 

### The Foxes' remaining arguments purportto show thattheirwell is not subjectto 

### the seniorwater rights protected bythe 2001 instream flow rule. We are not persuaded by these arguments. The building permit process must be consistent with state law 

### First, the Foxes argue thatthe County must issue a building permitwhen RCW 19.27.097 and relevant sections ofthe SkagitCounty Code (SCC) are satisfied. They
-11-No. 73315-0-1/12 

### rely on RCW 19.27.095(2), which provides that "[t]he requirements for a fullycompleted application shall be defined by local ordinance." RCW 19.27.095(2). The SCC defines "adequate water supply" as "a water supply which is capable ofsupplying at leastthree 

### hundred fifty (350) gallons ofwater perday, meets siting criteria established by State and local regulations, and meets water quality standards in SCC 12.48.110." SCC § 12.48.030. According to the Foxes, because RCW 19.27.095(2) grants counties the authority to define the requirements for a building application, the County here need only apply its own definition of "adequate water supply" for purposes ofthe building application process under RCW 19.27.097. Therefore, the County had no discretion to considerthe legal availability of water beyond its own local definition for "adequate water supply," and the trial court erred when itassumed the 2001 instream flow rule prevented the County from issuing a building permit. The building permit process must be consistentwith state law. The Foxes 

### suggestthe County's analysis is limited to its own local ordinance. But the SCC expressly provides that its provisions must comply with the state water code and the 

### instream flow rule specifically: "[t]he purpose ofthese rules is to
... (3) Whenever possible, carry out powers in manners which are consistentwith Chapter90.54 RCW and Chapters 173-503 and 173-505 WAC." SCC § 12.48.010(3) (emphasis added). Contrary to the Foxes' argument, the County had the discretion to considerwhetherthe instream flow rule prevented legal access to water in this case. Even underthe County's own definition of "adequate water supply," water is unavailable to the Foxes. As discussed above, permit-exemptwells like the Foxes' are 

### subjectto the prior appropriation doctrine. See Swinomish. 178 Wn.2d at 598. The
-12-No. 73315-0-1/13


### Foxes' well may be interrupted any time the Skagit River falls below minimum flow 

### requirements underWAC 173-503. A wellthat is subjectto interruption is not "capable ofsupplying at leastthree hundred fifty (350) gallons ofwater perday." SCC § 12.48.030. Under the Foxes' interpretation ofthe building permit statute and the SCC, the County essentially has the authority to issue building permits inviolation of state law. This is an illogical result. The Foxes concede that "[ordinances are to be interpreted consistent with state law." Br. ofAppellant at 14 (citing Eugsterv. City of Spokane. 118 Wn. App. 383, 406, 76 P.3d 741 (2003)). A county cannot override state law. See Cannabis Action Coalition v. City of Kent. 183 Wn.2d 219, 227, 351 P.3d 151 (2015) ("state law preempts
a local ordinance when [it] permits what state law forbids orforbids what state law permits."). The building permit application process must be consistent with state law, including the hierarchy of water rights established by the prior appropriation doctrine. Kittitas does not preclude consideration of the instream flow rule The Foxes rely on Kittitas arguing the testfor legal availability ofwater is satisfied when an applicant properly qualifies for a permit-exempt well under RCW 90.44.050. Kittitas is inapposite. Kittitas demonstrates thatwater is not legally available when water access would infringe seniorwater rights: 

### The parties dispute whetherthe requirement of RCW 58.17.110 that counties assure appropriate provisions are made for potable water supplies means only that counties must assure that water is factually available underground orthatwater is both factually and legally available. 

### To interpretthe County's role under RCW 58.17.110 to only require the County to assure water is physically underground effectively allows the
-13-No. 73315-0-1/14 County to condone the evasion ofour state's water permitting laws. This could come at a great cost to the existing water rights of nearby property owners, even those in adjoining counties, ifsubdivisions and developments overuse the well permit exemption, contrary to law. The [Growth ManagementAct] requires thatcounties provide for the protection of groundwater resources and thatcounty development regulations comply with the GMA. The Board properly interpreted the GMA's mandate to protect waterto at least require that the County's subdivision regulations conform to statutory requirements by not permitting subdivision applications that effectively evade compliance with water permitting requirements. Kittitas. 172Wn.2d at 179-81. Nowhere in Kittitas does the Court suggestthat a permit

### exemptwell, alone, satisfies the "adequate water supply" requirement in RCW 19.27.097. Instead, Kittitas requires that water be legally available to permit applicants and this analysis requires consideration of senior water rights. Consideration of senior water rights is not confined to general stream adjudications The Foxes contend that "[t]ointerpretthe legal availability portion of 'adequate' water in RCW 19.27.097 to include a determination by the County of priority ofwater 

### rights (i.e. the Foxes rightversus the Instream Flow Rule), would be inconsistent... 

### with the general stream adjudication procedures whichthe legislature has vested solely in the superiorcourts, initiated by Ecology, to afford properdue process." Br. of 

### Appellant at 16. We disagree. The County had authority to considerthe priority of water rights, including the instream flow rule. 

### The Foxes primarily rely on Rettkowski v. Dep'tof Ecology. 122 Wn.2d 219, 858 

### P.2d 232 (1993). In Rettkowski. the Court held thatthe Departmenthad no authority to issue cease and desist orders to water users itbelieved were infringing seniorwater 

### rights. Instead, the Departmentwas required to use the general adjudication
-14-No. 73315-0-1/15 procedures under RCW 90.03. Rettkowski. 122 Wn.2d at 234. But Rettkowski involved water users with existing, valid permits. Rettkowski. 122 Wn.2d at 236-37. The Court acknowledged that, during the permit application process, the Department has the authority to considerwhether a water user infringes seniorwater rights: "The inquiry in that situation is relatively straightforward: is there water available to apportion, is the proposed use beneficial and not detrimental to the public interest, and is there any conflictwith existing water rights." Rettkowski. 122Wn.2d at 228. The County's 

### analysis underthe building permit process is analogous. RCW 19.27.097. As discussed above, the County's own local code provides that itshould be applied consistently with WAC 173-503 (the instream flow rule). The County had the authority to considerwhetherthe Foxes' well infringed seniorwater rights generally and the instream flow rule in particular. The Foxes lack any riparian or correlative water rights 

### Relying on Dep'tof Ecology v. Abbott. 103 Wn.2d 686, 694 P.2d 1071 (1985), the Foxes argue their riparian orcorrelative right to use theirwell means this right is superiorto the instream flow rule. This argumentfails. In Abbott, the Court held that "the 1917 watercode established prior 

### appropriation as the dominantwater law inWashington" and that, "[a]fter 1917, new water rights may be acquired only through compliance with the permit system and existing water rights not put to beneficial use are relinquished." Abbott. 103 Wn.2d at 687. The Foxes concede thatthe watercode "removed all possibility of origination of 

### water rights from
... unused riparian rights to surface water." Br. ofAppellant at 24. 

### They nevertheless cite Abbott for the proposition that "the groundwatercode did not
-15-No. 73315-0-1/16



### remove certain carefully circumscribed unused groundwater riparian rights because of the exemptions in RCW 90.44.050." Br. ofAppellant at 24. The Foxes point to language where the Court suggests that a domestic exemption existed for groundwater but not surface water: 

### The trialjudge in this case, despite the shiftaway from the primacy of riparian rights bythe courts and Legislature, concluded thatthe 

### appropriative permit system embodied in the 1917 watercode applied only to surplus waters inexcess ofthose required for "ordinary" or "natural" domestic uses by riparians. He also interpreted the forfeiture provisions of the water rights act as applying only to public uses enumerated in article 

### 1, section 16 ofthe state constitution. Although we need not decide questions concerning that here, even partial adoption ofthe trial court 

### opinion would effectively create a domestic use exemption from the permit system and state managementofwater resources. The Legislature did expressly create a domestic exemption inthe groundwatercode, RCW 90.44.050, but ithas never seen fit to create such an exemption for surface water. 

### Abbott. 103 Wn.2d at 693. They claim this language shows the statutory exemption saved riparian orcorrelative rights for domestic purposes. This interpretation is inconsistentwith the watercode. Just as the 1917 code 

### eliminated riparian rights to surface water, the 1945 code eliminated riparian rights to groundwater: 

### Subjectto existing rights, all natural groundwaters ofthe state as defined in RCW 90.44.035,... are hereby declared to be public groundwaters and to belong to the public and to be subjectto appropriation for beneficial use under the terms ofthis chapter and not otherwise. RCW 90.44.040 (emphasis added). Further, the Supreme Court recognized the purpose and effect ofthe groundwater code is the same as the surface watercode insofar as both "are premised on the doctrine of prior appropriation." Campbell & Gwinn. 146Wn.2d at 7-8. The Abbott language suggests only that the statutory -16-No. 73315-0-1/17 

### exemption under RCW 90.44.050 exempts some water users from the permit process, not prior appropriation doctrine altogether. See Swinomish. 178 Wn.2d at 598 ("the 

### appropriators' right to use the water [from a permit-exemptwell] is subjectto rights with priority in time.").7 The instream flow rule applies to the Foxes' well The Foxes disagree that the 2001 instream flow rule applies to theirwell. 

### Relying on RCW 90.54.010(1) and RCW 90.54.020(5), they argue thatwater must be preserved for domestic use and no instream flow rule can limitpermit-exemptdomestic wells. They also argue because RCW 90.03.247 requires permits to be conditioned to 

### protect instream flow rights, permit-exemptwells are not subjectto such rights. The Foxes' reliance on these statutes to create an exception to senior instream flow rights is misplaced. RCW 90.03.345 expressly provides that minimum flow levels "constitute appropriations
... with priority dates as of..
. their establishment." Courts have consistently recognized that minimum flow levels have priority over subsequently acquired rights, including permit-exemptwells. See Campbell &Gwinn. 146Wn.2d at 17 n.8; Swinomish. 178 Wn.2d at 598. In Swinomish. the Court commented on several ofthe statutes cited by the Foxes, noting they were not "meantto override minimum flow rights" and do not "conflictwith the statutes authorizing or mandating rules setting minimum flows" orwith those "respecting priority of minimum rights." Swinomish. 178 Wn.2d at 585.



### 7The Foxes rely on two othercases to supporttheir riparian orcorrelative water rights theory. See State Highway Comm'n v. Ponten. 77 Wn.2d 463, 463 P.2d 150 (1969). Welch v. Dep't of Ecology. No. 98-108, 2000 WL 871699 (Wash. Pollution Control Hr'gs Bd. May 4, 2000). Neither case is helpful. -17-No. 73315-0-1/18


### Nordo any ofthe Department rules suggestthe instream flow rule does not apply. The Foxes claim thatWAC 173-503-040(5) and WAC 173-503-060 indicate that 

### instream flow rights apply only to permitted wells. WAC 173-503-040(5) states the exact opposite: 

### Future consumptive water right permits issued hereafterfor diversion of surface water..., and withdrawal of groundwater in hydraulic continuity with surface water in the Skagit River and perennial tributaries, shall be expressly subjectto instream flows established in [the Rule], and also subjectto WAC 173-503-060. WAC 173-503-040(5) (emphasis added): see also Whatcom Countv v. Western Wash. Growth Momt. Hearing Bd.. 186 Wn. App. 32, 60, 344 P.3d 1256 ("[WAC 173-503- 040(5)] expressly indicates that itgoverns permit-exempt uses ofwater."). WAC 173-503-060 also fails to supportthe Foxes' claim. That rule provides: Ifthe departmentdetermines that there is hydraulic continuity between surface water and the proposed ground water source, a water right permit or certificate shall not be issued unless the department determines thatwithdrawal of ground waterfrom the source aquiferwould not interfere with stream flows during the period of stream closure orwith maintenance of minimum instream flows. WAC 173-503-060. The Foxes contend thatbecause this rule omits permit-exempt wells, the instream flow rule applies only to permitted wells. But nothing inthis rule limits the other rules in the same section that unambiguously provide that the instream flow rule applies to all groundwaterwithdrawals including permit-exemptwells. See WAC 173-503-040(5), 173-503-050(1 )-(2): see also Whatcom Countv. 186 Wn. App. at 60, Swinomish. 178 Wn.2d at 598. The Foxes selectively highlight portions ofthe rule-making record to supporttheir argumentthat the instream flow rule does not apply to permit-exemptwells. These

•18-No. 73315-0-1/19 excerpts were not submitted to the trial court. In any event, the record shows the 

### Department intended to apply the instream flow rule to allfuture appropriations, including permit-exemptwells. The instream flow rule was developed in partto "reduce 

### the use ofexemptwells inthose areas ofthe County experiencing inadequate instream flows
... as a resultof groundwaterwithdrawal." CP at 343-45; see also CP at 35 ("Exempt wells are virtually everywhere, including adjacentto small tributaries that dry up inthe summer. Clusters ofthese exemptwells could have a detrimental effecton these small streams."). No statute or administrative rule protects the Foxes' well from the instream flow rule. The Foxes lack any senior water right The Foxes argue they have an appropriative water right seniorto the 2001 instream flow rule. The Foxes failed to present evidence that they manifested the requisite intent to appropriate the water necessary for their proposed building. In orderto establish a common law appropriative water right, the Foxes must show "an intention to appropriate followed by a reasonable diligence in applying the water to a beneficial use." In re Rights to Waters of Alpowa Creek. 129 Wash. 9, 13, 224 P. 29 (1924). Ifboth elements are met, the date of priority ofthe right will "relate back" to the time workwas first performed to appropriate the water. Hunter Land Co. v. Lauoenour. 140 Wash. 558, 565, 250 P. 41 (1926). The Foxes argue thatthey manifested sufficient intentto appropriate the water 

### when they subdivided their property in2000, dividing the lot into two plots. This is not sufficientto prove an appropriative water right. Awater right's priority date will relate backto the "firststep" of an appropriation, which is "complete when overt acts coalesce
-19-No. 73315-0-1/20

to openly demonstrate the applicant's intentto appropriate the waterfor a beneficial use." In re Water Rights ofVouoht. 76 P.3d 906, 912 (Colo. 2003). Such intent must be for a "fixed purpose to pursue diligently a certain course ofaction to take and beneficially use waterfrom a particular source." In re Right to Water inWater Dist. No. 36, 696 P.2d 730, 745 (Colo. 1985). Mere subdivision of property cannot meet this level ofintent. The Foxes did nothing with the property for several years. Between 2000 and 2014 they rented the land to neighbors, who used itas a horse pasture. The Foxes began construction on theirwell in 2011. The record fails to show the necessary diligence to support an appropriative right in 2000. No duty to mitigate by the Department RCW 90.54.020(5) provides: "[a]dequate and safe supplies ofwater shall be preserved and protected in potable condition to satisfy human domestic needs." The Foxes argue that this subsection imposes a duty to mitigate on the Department. They claim to "preserve" an "adequate" supply ofwater, the Department must allow the Foxes to access waterdespite the instream flow rule. No legal authority supports this 

### interpretation. See DeHeerv. Seattle Post-Intelligencer. 60 Wn.2d 122, 126, 372 P.2d 193 (1962) ("Where no authorities are cited insupportof a proposition, the court is not 

### required to search out authorities, but may assume thatcounsel, after diligent search, has found none."). The Foxes' interpretation means thatcertain uses will always supersede appropriative water rights. Neitherthe watercode nor case authority 

### suggests thatthe statutory scheme provides the Departmentthe authority to override appropriated water rights. Indeed, this reasoning was central to the Court's Swinomish decision. See Swinomish. 178 Wn.2d at 598. -20-No. 73315-0-1/21

The Foxes' due process claim fails 

### The Foxes argue the County's denial of a building permit violated theirdue process rights. Arguably, we may ignore this argument because the issue was not 

### sufficiently argued at the trial court and is inadequately briefed. RAP 2.5(a); Norcon 

### Builders. LLC v. GMP Homes VG. LLC. 161 Wn.App. 474, 486, 254 P.3d 835 (2011) ("Wewill not consideran inadequately briefed argument."). Inany event, the Foxes' due process claim fails. The Foxes have failed to show 

### a sufficient property interest. Greenhaloh v. Dep't ofCorrections. 180Wn. App. 876, 890, 324 P.3d 771 (2014) ("A threshold matterto a procedural or substantive due 

### process claim iswhetherthe plaintiffpossessed a property interest."). The Foxes have
no property interest because their permit-exemptwell is subjectto the seniorwater rights protected by the instream flow rule. 

### Even ifwe assume a property interest, the Foxes fail to address the remaining analysis of their due process claim. Afterconcluding that a sufficient property interest is at stake, the reviewing court mustthen inquire "(1)whetherthe regulation aims to 

### achieve a legitimate public purpose, (2) whetherthe means adopted are reasonably necessary to achieve that purpose, and (3) whetherthe regulation is unduly oppressive

on the property owner." Robinson v. City of Seattle. 119 Wn.2d 34, 51, 830 P.2d 318 

### (1992). The Foxes fail to analyze any ofthese considerations. "[N]akedcastings into the constitutional sea are not sufficientto commandjudicial consideration and discussion." Seven Gables Corp. v. MGM/UA Entertainment Co.. 106 Wn.2d 1, 14, 721 

### P.2d 1 (1986) (quoting United States v. Phillips. 433 F.2d 1364, 1366 (8th Cir. 1970)). The Foxes' argument erodes the legal framework for appropriative water rights. That
-21-No. 73315-0-1/22



### some water rights must necessarily acquiesce to seniorwater rights is a natural consequence ofthe prior appropriation doctrine. See, e.g.. Swinomish. 178 Wn.2d at 

### 598, n.14 ("there are hardships attendantto any water rightwith a laterprioritydate and too littlewater available to satisfy all rights."). For similarreasons, SkagitCounty's due process argument also fails. The 

### County contends the Department's instream flow rule interpretation violates the Foxes' due process rights because itrepeals a statutory right by implication. Like the Foxes, 

### the County's argument assumes the rightgranted under in RCW90.44.050's exemption exists outside of priorappropriation doctrine. As discussed above, the right to withdraw watervia a permit-exemptwellunder RCW 90.44.050 is likeany otherwater right. That 

### right is subjectto senior rights, such as the instream flow rule. Contrary to the County's argument, the Department's instream flow rule interpretation does not "vitiate a statutory right by silence," Br. ofSkagit County at 21. The statutory rightincludes only an exemption from the permit process, includes no right to "jump to the head ofthe line" of priority. Swinomish. 178 Wn.2d at 598. We also rejectthe County's claim that the Department's instream flow rule 

### interpretation is "new." The County was on notice thatthe rule might infringe permitexemptwells with later priority dates. For example, the introductory comments to the proposed rule provide that it "would affect all future water use, ifnot exempted," CP at 277, and permit-exempt wells are not listed in the exemptions section ofthe rule. WAC 173-503-070. Inthe responsiveness summary and concise explanatory statementfor the rule, issued in March 2001, the Departmentexplained that "[groundwater withdrawals will be treated as surface waterappropriations unless the applicant can
-22-No. 73315-0-1/23 

### demonstrate the withdrawal is not hydraulically connected to the river." CP at 321. In 

### that same statement, the Departmentexplained a statutory exemption exempts well
users onlyfrom the permitprocess, butthose permit-exempt wells remain subjectto seniorwater rights: 

### Ecology has made statements in the environmental documents and public hearing to clarify that an exempt well is only exemptfrom permit reouirements. It becomes a water right when it is drilled and put to beneficial use. It has a priority date (the date it is put to beneficial use) and could be juniorto the instream flow ifput to beneficial use after the 

### effective date ofthe rule. The prioritydate ofthe exemptwell could 

### become importantduring a time ofscarcity when senior rights would have to be protected. 

### CP at 322 (emphasis added). The County demonstrated the same understanding of the rule in a 2003 petition for review challenging the rule's validity. The County expressly acknowledged permit-exemptwells were subjectto seniorwater rights, including the instream flow rule. Thus, the wells could not provide an adequate water supply for purposes ofthe building permit statute: 

### Though exemptfrom [permitting under] RCW 90.44.050, exemptwells, 

### likeany otherwater use, existwithinWashington's priorappropriation scheme. This means that exemptwells that arejuniorto the [rule] can be interrupted ifthe [rule's] instream flow level... is not being met. Interruptible water sources do not meetthe requirements for an adequate 

### reliable supply ofwater needed to authorize issuance of a building permit under RCW 19.27.097. 

### CP at 10. In2001, the Department believed the instream flow rule would supersede subsequently acquired water rights such as permit-exemptwells, and the County understood this interpretation. As discussed above, this interpretation properly conforms with the statutory scheme and case law. See Swinomish. 178 Wn.2d at 598.

-23-No. 73315-0-1/24

CONCLUSION For reasons discussed above, we affirm.

WE CONCUR:



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