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 order denying their

motion for a writ of mandamus seeking to compel Skagit County to issue a building

permit. The Foxes argue the trial court erred when it ruled that the well on their
No. 73315-0-1/2

property, despite being exempt from the water permit requirement, is not an adequate

water supply for purposes of the building permit statute because the well is subject to

senior water rights—namely, the 2001 instream flow rule for the Skagit River. We

conclude that a permit-exempt well under RCW 90.44.050 is subject to the prior

appropriation doctrine and therefore may be limited by senior water rights, including the

instream flow rule. Accordingly, because the Foxes' well may be interrupted, water is

not legally available for purposes of their building permit application. We affirm.

FACTS

The main facts are undisputed. In March 2014, Richard and Marnie Fox

submitted a building permit application to construct a single-family house near SedroWoolly, Washington. Skagit County determined the building permit application was

"incomplete" because the Foxes failed to demonstrate that they had access to an

adequate and reliable source of water for the proposed home. Clerk's Papers (CP) at

666. The Foxes' only source of water is a well on their property. The parties agree the

well is in hydraulic continuity1 with the Skagit River. The 2001 instream flow rule curtails

the exercise of water rights when minimum flow requirements for the Skagit River are

not met. See generally. WAC 173-503. The parties agree that the Skagit River

regularly falls below the minimum flow requirement.2 The Foxes responded to the

County by claiming that despite the instream flow rule, their well was exempt from water

1"Hydraulic continuity" is the term used to describe underground water sources

or aquifers that are connected to rivers and other surface water sources.

2 For example, since 2005, there have been 5 years where the river fell below the

minimum flow requirement for 100 days or more. Since 1995, the Skagit River has

fallen below the minimum for several days each year, ranging from a low of 29 days in

2013 to a high of 181 days in 2009.
No. 73315-0-1/3

rights permitting requirements because they only sought groundwater for single

domestic use not to exceed 5,000 gallons per day. RCW 90.44.050 ("no withdrawal of

public groundwaters of the state shall be begun .. . EXCEPT, HOWEVER ... for single

or group domestic uses in an amount not exceeding five thousand gallons a day ....").

The County took no action following this response.

On May 23, the Foxes filed a petition for writ of mandamus in Skagit County

Superior Court, seeking to compel the County to either issue a building permit or

respond and show cause as to why the permit should not be issued. On June 6, the

trial court issued an alternative writ commanding the County to issue a building permit to

the Foxes or appear and show cause for declining to issue the permit. On June 26, the

County responded, reiterating that "[t]he Skagit River instream flows prescribed under

WAC 173-503 [the instream flow rule] apply to Mr. Fox's proposed use of permit-exempt

groundwater, and he has not demonstrated that his proposed groundwater withdrawal

will not impact flows in these tributaries and the Skagit River." CP at 234. In July 2014,

the trial court granted the Swinomish Indian Tribal Community's (the Tribe) and the

Department of Ecology's (the Department) motions to intervene in the action.

After considering briefs and oral argument, the trial court denied the Foxes'

petition for writ of mandamus. On February 2, 2015, the trial court entered its order

denying motion to affirm writ of mandamus. The trial court agreed with the Department

that the instream flow rule under WAC 173-503 governed permit-exempt groundwater

use that is in hydraulic continuity with the Skagit River, including the Foxes' well. The

trial court denied the Foxes' motion for reconsideration. The Foxes appeal.

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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 act which the law especially enjoins as a duty . ..." RCW 7.16.160. "[W]hether a

statute specifies a duty that the person must perform is a question of law." River Park

Souare. LLC v. Miggins. 143 Wn.2d 68, 76,17 P.3d 1178 (2001). Accordingly, whether

the County had a legal duty to grant the Foxes' request for a building permit is a

question of law we review de novo. See Cost Momt. Serv.. Inc. v. City of Lakewood.

178 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 whether the prior appropriation doctrine

applies to a well that is exempt from the permit procedure to withdraw public

groundwater under RCW 90.44.050. We conclude that these permit-exempt wells are

subject to the prior appropriation doctrine. Therefore, the Foxes' well cannot infringe

senior water rights, including the 2001 instream flow rule.

An individual seeking a building permit must demonstrate to the local licensing

authority that an adequate water supply is available:

Each applicant for a building permit of a building necessitating

potable water shall provide evidence of an adequate water supply for the

intended use of the building. Evidence may be in the form of a water right

permit from the department of ecology, a letter from an approved water

purveyor stating the ability to provide water, or another form sufficient to

verify the existence of an adequate water supply.

RCW 19.27.097(1). "[C]ounties must assure that. . . water is both factually and legally

available." Kittitas Countv v. Eastern Wash. Growth Momt. Hr'gs Bd., 172Wn.2d 144,

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No. 73315-0-1/5

180, 256 P.3d 1193 (2011). The Foxes allege that water is "legally available" to their

proposed building because it is exempt from the water permit process under RCW

90.44.050:

After June 6,1945, no withdrawal of public groundwaters of the

state shall be begun, nor shall any well or other works for such withdrawal

be constructed, unless an application to appropriate such waters has been

made to the department and a permit has been granted by it as herein

provided; EXCEPT, HOWEVER ... for single or group domestic uses in

an amount not exceeding five thousand gallons a day ... is and shall be

exempt from the provisions of this section, but, to the extent that is

regularly used beneficially, shall be entitled to a right equal to that

established by a permit issued under the provisions of this chapter.

RCW 90.44.050. The Foxes' well is for domestic purposes and will draw less than

5,000 gallons per day. Thus, it is exempt from the permitting process, and they are

entitled to "a right equal to that established by a permit." RCW 90.44.050. The Foxes

contend this exemption satisfies the building permit requirement for "evidence of an

adequate water supply" because it is the legal equivalent of a "water right permit from

the department of ecology ... or another form sufficient to verify the existence of an

adequate water supply." RCW 19.27.097(1 ).3

Although this exemption from the water permitting process may establish a right

to withdraw groundwater, that right is not absolute. The overall statutory scheme and

case law both demonstrate that superior water rights may limit a right to withdraw

groundwater via a permit-exempt well.

3The parties agree that the Foxes never sought a water right permit and that

obtaining water through a public utility is unlikely, so they were unable to obtain "a letter

from an approved water purveyor stating the ability to provide water." RCW

19.27.097(1).

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No. 73315-0-1/6

Appropriations of groundwater under chapter 90.44 RCW—the chapter

containing the Foxes' alleged "exemption"—are subject to the prior appropriation

doctrine. RCW 90.44.020 expressly provides that chapter 90.44 RCW "shall be

supplemental to chapter 90.03 RCW ... and is enacted for the purpose of extending the

application of such surface water statutes to the appropriation and beneficial use of

groundwaters within the state." RCW 90.44.020. Chapter 90.03 RCW, the general

water code, contains the longstanding principle that water appropriations have priority

over other appropriations acquired later in time: "as between appropriations, the first in

time shall be the first in right." RCW 90.03.010 (emphasis added). Chapter 90.44 RCW

acknowledges this same principle:

The rights to appropriate the surface waters of the state and the

rights acquired by the appropriation and use of surface waters shall not be

affected or impaired by any of the provisions of this supplementary

chapter [ch. 90.44 RCW] and, to the extent that any underground water is

part of or tributary to the source of any surface stream or lake, or that the

withdrawal of groundwater may affect the flow of any spring, water course,

lake, or other body of surface water, the right of an appropriator and owner

of surface water shall be superior to any subseouent right hereby

authorized to be acouired in or to groundwater.

RCW 90.44.030 (emphasis added). Water obtained under RCW 90.44.050 through

either a permit or a permit-exempt well constitutes an "appropriation." RCW 90.44.050

(describing a permit to withdraw water as "an application to appropriate such waters ...

." (emphasis added)). Therefore, because withdrawing water from a permit-exempt well

constitutes an appropriation, and because chapter 90.44 RCW is intended to "extendf ]

the application of such surface water statutes to the appropriation ... of groundwaters,"

RCW 90.44.020, appropriations under RCW 90.44.050 are subject to the general rule

that "first in time shall be first in right." RCW 90.03.010. Although the exemption under

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No. 73315-0-1/7

RCW 90.44.050 grants the Foxes a right to withdraw groundwater, like any other right to

appropriate groundwater, it is nevertheless subject to the longstanding rule that first in

time shall be first in right.

The superior right here is the minimum instream flow rule the Department

established for the Skagit River. See WAC 173-503. RCW 90.22.010 empowers the

Department to "establish minimum water flows or levels for streams, lakes or other

public waters ...." RCW 90.22.010. These minimum flow levels "constitute

appropriations within the meaning of this chapter with priority dates as of the effective

dates of their establishment." RCW 90.03.345. Accordingly, these minimum flow levels

are like any other water appropriation right—they cannot affect existing water rights, and

they take priority over subsequently established rights. See RCW 90.22.030; see also

Hubbard v. State. 86 Wn. App. 119, 936 P.2d 27 (1997). The Department promulgated

WAC 173-503 in 2001, establishing a minimum flow for the Skagit River. Like any water

appropriation, these minimum flow requirements take priority over subsequently

acquired water appropriations that would impair the Department's designated minimum

flow level. See Postema v. Pollution Control Hr'gs Bd.. 142 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

by subsequent groundwater withdrawals.").4 The statutory scheme dictates that the

4The Foxes cite the following passage from Postema several times in their brief:

"Additionally, we reject the premise that the fact that a stream has unmet flows

necessarily establishes impairment ifthere is an effect on the stream from groundwater

withdrawals." Postema. 142 Wn.2d at 93. This does not support the Foxes' argument

that their permit-exempt well is not subject to the senior water rights protected by the

instream flow rule. The Foxes ignore the Court's language in the following paragraph:

"We hold that hydraulic continuity of an aquifer with a stream having unmet minimum

flows is not, in and of itself, a basis for denial of a groundwater application, and

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No. 73315-0-1/8

Foxes' right to withdraw water from their permit-exempt well is subject to the superior

water rights protected by the instream flow rule.

Washington Supreme Court authority is consistent with this interpretation. In

Dep't of Ecology v. Campbell & Gwinn. LLC. 146 Wn.2d 1, 43 P.3d 4 (2002), the Court

unambiguously held that water obtained from a permit-exempt well is treated as any

other water right and is therefore subject to the prior appropriation doctrine:

While the exemption in RCW 90.44.050 allows appropriation of

groundwater and acquisition of a groundwater right without going through

the permit or certification procedures of chapter 90.44 RCW, once the

appropriator perfects the right by actual application of the water to

beneficial use, the right is otherwise treated in the same way as other

perfected rights. RCW 90.44.050. Thus, it is subject to the basic principle

of water rights acguired bv prior appropriation that the first in time is the

first in right.

Campbell & Gwinn. 146 Wn.2d at 9 (emphasis added); see also Campbell & Gwinn. 146

Wn.2d at 17 n.8 ("RCW 90.44.050 itself provides that a right acquired under the

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

appropriation doctrine's first in time first in right principle.")5

accordingly affirm the superior courts. However, where there is hydraulic continuity and

withdrawal of groundwater would impair existing surface water rights, including

minimum flow rights, then denial is reguired." Postema. 142 Wn.2d at 93 (emphasis

added). Therefore, the Foxes' permit-exempt well is stillsubject to Skagit River's

minimum flow rights.

5 The Foxes repeatedly cite Campbell & Gwinn for the proposition that the

statutory exemption in RCW 90.44.050 precludes the Department from employing the

four criteria for approval of a water rights permit under RCW 90.03.290, and that

therefore a permit-exempt well renders any consideration of existing water rights

unnecessary. See Campbell & Gwinn. 146 Wn.2d at 16 ("Ecology does not engage in

the usual review of a permit application under RCW 90.03.290."). But the Foxes fail to

acknowledge that the Court expressly held that permit-exempt water rights under RCW

90.44.050 are nevertheless subject to prior appropriation doctrine and therefore may be

curtailed by senior water rights. Campbell & Gwinn. 146 Wn.2d at 17 n.8

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No. 73315-0-1/9

The Court reiterated this point in Swinomish Indian Tribal Community v. Dep't of

Ecology, 178 Wn.2d 571, 311 P.3d 6 (2013), where it addressed several 2006

amendments to the 2001 instream flow rule. The amendments sought to reserve water

for certain uses—including permit-exempt wells—despite whether those uses impaired

the minimum flow requirements for the Skagit River. Swinomish. 178 Wn.2d at 578-79.

The Department recognized that the 2001 instream flow rule had priority over

subsequently acquired water rights, and it therefore believed reservations were

necessary to create water access for certain limited uses: "Ecology found that important

public interests would be significantly advanced by the reservations because without

them, new withdrawals ... would be interrupted when stream flows fall to the minimums

established under the 2001 Instream Flow Rule; new sources of water were otherwise

unavailable through most of the basin as a practical matter; and economic productivity

would be gained." Swinomish. 178 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 of water which would conflict [with] [minimum flow

requirements] shall be authorized only in those situations where it is clear that

overriding considerations of the public interest will be served."). The Court held that

these reservations were invalid because the overriding-considerations exception could

not alter the priority date of water appropriations that would otherwise be subject to the

senior instream flow rule, including permit-exempt wells:

[T]he overriding-considerations exception cannot reasonably be

read to replace the many statutes that pertain to appropriation of the

state's water and minimum flows. Existing statutes govern applications to

beneficially use water for the purposes for which the reservations were

made here. For example, Ecology determined that noninterruptible water

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No. 73315-0-1/10

is needed for some domestic exempt wells because, while there is a

current provision for exempt wells, the appropriators' right to use the water

is subject to rights with priority in time. But exempt wells are provided for

by statute and Ecology's actions on applications for exempt wells are

clearly set out in the water code—without any provision permitting a "jump

to the head of the line" in priority as a result of Ecology's reservations of

water and use of the overriding-considerations exception. See RCW

90.44.050J14]

14- The dissent engages in a "factual analysis" intended to show

that exempt well uses and rural public water supply systems qualify under

a cost-benefit analysis for consideration under the overridingconsiderations exception. But the analysis simply shows what is always

true—there are hardships attendant to any water right with a later priority

date and too little water available to satisfy all rights. The dissent also

claims that the reallocations of water for exempt well users and rural

public water systems should be permitted since they involve only small

quantities of water and will have little impact on minimum flows. But the

overriding-considerations exception is not a grant of general authority to

reallocate water subject to existing water rights regardless of whether the

impact on minimum flows and instream uses would be substantial or

slight.

Swinomish, 178 Wn.2d at 598 n.14 (emphasis added). Swinomish controls here: "the

appropriators' right to use the water [from a permit-exempt well] is subject to rights with

priority in time." Swinomish. 178 Wn.2d at 598.6 The Foxes' right to use their permitexempt well is subject to the superior water rights protected by the 2001 instream flow

rule.

Both the statutory scheme and case law demonstrate that water is not legally

available for purposes of the Foxes' building permit. An exemption under RCW

90.44.050 provides a right to withdraw groundwater legally equivalent to the right

6The Foxes briefly mention that Swinomish was limited to circumstances where

someone actually applies for a water permit. But nothing in the statutory scheme or in

the Court's language in Swinomish suggests such a limitation. The Swinomish Court

meant exactly what itsaid: permit-exempt wells are subject to the prior appropriation

doctrine.

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No. 73315-0-1/11

obtained via a permit. Therefore, a permit-exempt well, like any other groundwater

appropriation, is subject to prior appropriation doctrine. RCW 90.03.010 ("as between

appropriations, the first in time shall be the first in right.") The Washington Supreme

Court recognized this straightforward reading of the statutory scheme in Campbell &

Gwinn: "RCW 90.44.050 itself provides that a right acquired under the exemption is to

be treated as all other rights, and thus is subject to the prior appropriation doctrine's first

in time first in right principle." Campbell & Gwinn. 146 Wn.2d at 17 n.8. Because the

Foxes' permit-exempt well is subject to the prior appropriation doctrine, it cannot impair

the senior water rights protected by the 2001 instream flow rule. See RCW 90.22.030.

This is exactly what the Court held in Swinomish: "the appropriators' right to use the

water [from a permit-exempt well] is subject to rights with priority in time." Swinomish,

178 Wn.2d at 598. In short, there is overwhelming legal authority that supports the trial

court's order denying the Foxes' motion for a writ of mandamus because water is not

legally available for their permit-exempt well. The statutory exemption grants them a

right to withdraw groundwater from their well. But this right cannot supersede senior

water rights such as the minimum flow requirement in the 2001 instream flow rule.

The Foxes' Remaining Arguments are Unpersuasive

The Foxes' remaining arguments purport to show that their well is not subject to

the senior water rights protected by the 2001 instream flow rule. We are not persuaded

by these arguments.

The building permit process must be consistent with state law

First, the Foxes argue that the County must issue a building permit when RCW

19.27.097 and relevant sections of the Skagit County Code (SCC) are satisfied. They

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No. 73315-0-1/12

rely on RCW 19.27.095(2), which provides that "[t]he requirements for a fully completed

application shall be defined by local ordinance." RCW 19.27.095(2). The SCC defines

"adequate water supply" as "a water supply which is capable of supplying at least three

hundred fifty (350) gallons of water per day, meets siting criteria established by State

and local regulations, and meets water quality standards in SCC 12.48.110." SCC §

12.48.030. According to the Foxes, because RCW 19.27.095(2) grants counties the

authority to define the requirements for a building application, the County here need

only apply its own definition of "adequate water supply" for purposes of the building

application process under RCW 19.27.097. Therefore, the County had no discretion to

consider the legal availability of water beyond its own local definition for "adequate

water supply," and the trial court erred when it assumed the 2001 instream flow rule

prevented the County from issuing a building permit.

The building permit process must be consistent with state law. The Foxes

suggest the County's analysis is limited to its own local ordinance. But the SCC

expressly provides that its provisions must comply with the state water code and the

instream flow rule specifically: "[t]he purpose of these rules is to ... (3) Whenever

possible, carry out powers in manners which are consistent with Chapter 90.54 RCW

and Chapters 173-503 and 173-505 WAC." SCC § 12.48.010(3) (emphasis added).

Contrary to the Foxes' argument, the County had the discretion to consider whether the

instream flow rule prevented legal access to water in this case.

Even under the County's own definition of "adequate water supply," water is

unavailable to the Foxes. As discussed above, permit-exempt wells like the Foxes' are

subject to the prior appropriation doctrine. See Swinomish. 178 Wn.2d at 598. The

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No. 73315-0-1/13

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

requirements under WAC 173-503. A well that is subject to interruption is not "capable

of supplying at least three hundred fifty (350) gallons of water per day." SCC §

12.48.030.

Under the Foxes' interpretation of the building permit statute and the SCC, the

County essentially has the authority to issue building permits in violation of state law.

This is an illogical result.

The Foxes concede that "[ordinances are to be interpreted consistent with state

law." Br. of Appellant at 14 (citing Eugster v. City of Spokane. 118 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 or forbids what state law

permits."). The building permit application process must be consistent with state law,

including the hierarchy of water rights established by the prior appropriation doctrine.

Kittitas does not preclude consideration of the instream flow rule

The Foxes rely on Kittitas arguing the test for legal availability of water is satisfied

when an applicant properly qualifies for a permit-exempt well under RCW 90.44.050.

Kittitas is inapposite. Kittitas demonstrates that water is not legally available when

water access would infringe senior water rights:

The parties dispute whether the requirement of RCW 58.17.110

that counties assure appropriate provisions are made for potable water

supplies means only that counties must assure that water is factually

available underground or that water is both factually and legally available.

To interpret the County's role under RCW 58.17.110 to only require the

County to assure water is physically underground effectively allows the

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County to condone the evasion of our state's water permitting laws. This

could come at a great cost to the existing water rights of nearby property

owners, even those in adjoining counties, ifsubdivisions and

developments overuse the well permit exemption, contrary to law.

The [Growth Management Act] requires that counties provide for the

protection of groundwater resources and that county development

regulations comply with the GMA. The Board properly interpreted the

GMA's mandate to protect water to at least require that the County's

subdivision regulations conform to statutory requirements by not

permitting subdivision applications that effectively evade compliance with

water permitting requirements.

Kittitas. 172 Wn.2d at 179-81. Nowhere in Kittitas does the Court suggest that a permitexempt well, alone, satisfies the "adequate water supply" requirement in RCW

19.27.097. Instead, Kittitas requires that water be legally available to permit applicants

and this analysis requires consideration of senior water rights.

Consideration of senior water rights is not confined to general stream

adjudications

The Foxes contend that "[t]o interpret the legal availability portion of 'adequate'

water in RCW 19.27.097 to include a determination by the County of priority of water

rights (i.e. the Foxes right versus the Instream Flow Rule), would be inconsistent...

with the general stream adjudication procedures which the legislature has vested solely

in the superior courts, initiated by Ecology, to afford proper due process." Br. of

Appellant at 16. We disagree. The County had authority to consider the priority of

water rights, including the instream flow rule.

The Foxes primarily rely on Rettkowski v. Dep't of Ecology. 122 Wn.2d 219, 858

P.2d 232 (1993). In Rettkowski. the Court held that the Department had no authority to

issue cease and desist orders to water users it believed were infringing senior water

rights. Instead, the Department was required to use the general adjudication

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procedures under RCW 90.03. Rettkowski. 122 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 consider whether a water user infringes senior water rights: "The inquiry in

that situation is relatively straightforward: is there water available to apportion, is the

proposed use beneficial and not detrimental to the public interest, and is there any

conflict with existing water rights." Rettkowski. 122 Wn.2d at 228. The County's

analysis under the building permit process is analogous. RCW 19.27.097. As

discussed above, the County's own local code provides that it should be applied

consistently with WAC 173-503 (the instream flow rule). The County had the authority

to consider whether the Foxes' well infringed senior water rights generally and the

instream flow rule in particular.

The Foxes lack any riparian or correlative water rights

Relying on Dep't of Ecology v. Abbott. 103 Wn.2d 686, 694 P.2d 1071 (1985),

the Foxes argue their riparian or correlative right to use their well means this right is

superior to the instream flow rule. This argument fails.

In Abbott, the Court held that "the 1917 water code established prior

appropriation as the dominant water law in Washington" and that, "[a]fter 1917, new

water rights may be acquired only through compliance with the permit system and

existing water rights not put to beneficial use are relinquished." Abbott. 103 Wn.2d at

687. The Foxes concede that the water code "removed all possibility of origination of

water rights from ... unused riparian rights to surface water." Br. of Appellant at 24.

They nevertheless cite Abbott for the proposition that "the groundwater code did not

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No. 73315-0-1/16

remove certain carefully circumscribed unused groundwater riparian rights because of

the exemptions in RCW 90.44.050." Br. of Appellant at 24.

The Foxes point to language where the Court suggests that a domestic

exemption existed for groundwater but not surface water:

The trial judge in this case, despite the shift away from the primacy

of riparian rights by the courts and Legislature, concluded that the

appropriative permit system embodied in the 1917 water code applied only

to surplus waters in excess of those required for "ordinary" or "natural"

domestic uses by riparians. He also interpreted the forfeiture provisions of

the water rights act as applying only to public uses enumerated in article

1, section 16 of the state constitution. Although we need not decide

questions concerning that here, even partial adoption of the trial court

opinion would effectively create a domestic use exemption from the permit

system and state management of water resources. The Legislature did

expressly create a domestic exemption in the groundwater code, RCW

90.44.050, but it has never seen fit to create such an exemption for

surface water.

Abbott. 103 Wn.2d at 693. They claim this language shows the statutory exemption

saved riparian or correlative rights for domestic purposes.

This interpretation is inconsistent with the water code. Just as the 1917 code

eliminated riparian rights to surface water, the 1945 code eliminated riparian rights to

groundwater:

Subject to existing rights, all natural groundwaters of the state as

defined in RCW 90.44.035,... are hereby declared to be public

groundwaters and to belong to the public and to be subject to

appropriation for beneficial use under the terms of this chapter and not

otherwise.

RCW 90.44.040 (emphasis added). Further, the Supreme Court recognized the

purpose and effect of the groundwater code is the same as the surface water code

insofar as both "are premised on the doctrine of prior appropriation." Campbell &

Gwinn. 146 Wn.2d at 7-8. The Abbott language suggests only that the statutory

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exemption under RCW 90.44.050 exempts some water users from the permit process,

not prior appropriation doctrine altogether. See Swinomish. 178 Wn.2d at 598 ("the

appropriators' right to use the water [from a permit-exempt well] is subject to rights with

priority in time.").7

The instream flow rule applies to the Foxes' well

The Foxes disagree that the 2001 instream flow rule applies to their well.

Relying on RCW 90.54.010(1) and RCW 90.54.020(5), they argue that water must be

preserved for domestic use and no instream flow rule can limit permit-exempt domestic

wells. They also argue because RCW 90.03.247 requires permits to be conditioned to

protect instream flow rights, permit-exempt wells are not subject to such rights.

The Foxes' reliance on these statutes to create an exception to senior instream

flow rights is misplaced. RCW 90.03.345 expressly provides that minimum flow levels

"constitute appropriations ... with priority dates as of.. . their establishment." Courts

have consistently recognized that minimum flow levels have priority over subsequently

acquired rights, including permit-exempt wells. See Campbell & Gwinn. 146 Wn.2d at

17 n.8; Swinomish. 178 Wn.2d at 598. In Swinomish. the Court commented on several

of the statutes cited by the Foxes, noting they were not "meant to override minimum

flow rights" and do not "conflict with the statutes authorizing or mandating rules setting

minimum flows" or with those "respecting priority of minimum rights." Swinomish. 178

Wn.2d at 585.

7The Foxes rely on two other cases to support their riparian or correlative 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.

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Nor do any of the Department rules suggest the instream flow rule does not

apply. The Foxes claim that WAC 173-503-040(5) and WAC 173-503-060 indicate that

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

exact opposite:

Future consumptive water right permits issued hereafter for

diversion of surface water..., and withdrawal of groundwater in hydraulic

continuity with surface water in the Skagit River and perennial tributaries,

shall be expressly subject to instream flows established in [the Rule], and

also subject to WAC 173-503-060.

WAC 173-503-040(5) (emphasis added): see also Whatcom Countv v. Western Wash.

Growth Momt. Hearing Bd.. 186 Wn. App. 32, 60, 344 P.3d 1256 ("[WAC 173-503-

040(5)] expressly indicates that it governs permit-exempt uses of water.").

WAC 173-503-060 also fails to support the Foxes' claim. That rule provides:

Ifthe department determines that there is hydraulic continuity

between surface water and the proposed ground water source, a water

right permit or certificate shall not be issued unless the department

determines that withdrawal of ground water from the source aquifer would

not interfere with stream flows during the period of stream closure or with

maintenance of minimum instream flows.

WAC 173-503-060. The Foxes contend that because this rule omits permit-exempt

wells, the instream flow rule applies only to permitted wells. But nothing in this rule

limits the other rules in the same section that unambiguously provide that the instream

flow rule applies to all groundwater withdrawals including permit-exempt wells. See

WAC 173-503-040(5), 173-503-050(1 )-(2): see also Whatcom Countv. 186 Wn. App. at

60, Swinomish. 178 Wn.2d at 598.

The Foxes selectively highlight portions of the rule-making record to support their

argument that the instream flow rule does not apply to permit-exempt wells. These

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excerpts were not submitted to the trial court. In any event, the record shows the

Department intended to apply the instream flow rule to all future appropriations,

including permit-exempt wells. The instream flow rule was developed in part to "reduce

the use of exempt wells in those areas of the County experiencing inadequate instream

flows ... as a result of groundwater withdrawal." CP at 343-45; see also CP at 35

("Exempt wells are virtually everywhere, including adjacent to small tributaries that dry

up in the summer. Clusters of these exempt wells could have a detrimental effect on

these small streams."). No statute or administrative rule protects the Foxes' well from

the instream flow rule.

The Foxes lack any senior water right

The Foxes argue they have an appropriative water right senior to the 2001

instream flow rule. The Foxes failed to present evidence that they manifested the

requisite intent to appropriate the water necessary for their proposed building.

In order to establish a common law appropriative water right, the Foxes must

show "an intention to appropriate followed by a reasonable diligence in applying the

water to a beneficial use." In re Rights to Waters of Alpowa Creek. 129 Wash. 9, 13,

224 P. 29 (1924). If both elements are met, the date of priority of the right will "relate

back" to the time work was first performed to appropriate the water. Hunter Land Co. v.

Lauoenour. 140 Wash. 558, 565, 250 P. 41 (1926).

The Foxes argue that they manifested sufficient intent to appropriate the water

when they subdivided their property in 2000, dividing the lot into two plots. This is not

sufficient to prove an appropriative water right. A water right's priority date will relate

back to the "first step" of an appropriation, which is "complete when overt acts coalesce

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to openly demonstrate the applicant's intent to appropriate the water for a beneficial

use." In re Water Rights of Vouoht. 76 P.3d 906, 912 (Colo. 2003). Such intent must

be for a "fixed purpose to pursue diligently a certain course of action to take and

beneficially use water from a particular source." In re Right to Water in Water Dist. No.

36, 696 P.2d 730, 745 (Colo. 1985). Mere subdivision of property cannot meet this level

of intent. The Foxes did nothing with the property for several years. Between 2000 and

2014 they rented the land to neighbors, who used it as a horse pasture. The Foxes

began construction on their well in 2011. The record fails to show the necessary

diligence to support an appropriative right in 2000.

No duty to mitigate by the Department

RCW 90.54.020(5) provides: "[a]dequate and safe supplies of water shall be

preserved and protected in potable condition to satisfy human domestic needs." The

Foxes argue that this subsection imposes a duty to mitigate on the Department. They

claim to "preserve" an "adequate" supply of water, the Department must allow the Foxes

to access water despite the instream flow rule. No legal authority supports this

interpretation. See DeHeer v. Seattle Post-Intelligencer. 60 Wn.2d 122, 126, 372 P.2d

193 (1962) ("Where no authorities are cited in support of a proposition, the court is not

required to search out authorities, but may assume that counsel, after diligent search,

has found none."). The Foxes' interpretation means that certain uses will always

supersede appropriative water rights. Neither the water code nor case authority

suggests that the statutory scheme provides the Department the authority to override

appropriated water rights. Indeed, this reasoning was central to the Court's Swinomish

decision. See Swinomish. 178 Wn.2d at 598.

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The Foxes' due process claim fails

The Foxes argue the County's denial of a building permit violated their due

process rights. Arguably, we may ignore this argument because the issue was not

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

Builders. LLC v. GMP Homes VG. LLC. 161 Wn. App. 474, 486, 254 P.3d 835 (2011)

("We will not consider an inadequately briefed argument.").

In any event, the Foxes' due process claim fails. The Foxes have failed to show

a sufficient property interest. Greenhaloh v. Dep't of Corrections. 180 Wn. App. 876,

890, 324 P.3d 771 (2014) ("A threshold matter to a procedural or substantive due

process claim is whether the plaintiff possessed a property interest."). The Foxes have

no property interest because their permit-exempt well is subject to the senior water

rights protected by the instream flow rule.

Even if we assume a property interest, the Foxes fail to address the remaining

analysis of their due process claim. After concluding that a sufficient property interest is

at stake, the reviewing court must then inquire "(1) whether the regulation aims to

achieve a legitimate public purpose, (2) whether the means adopted are reasonably

necessary to achieve that purpose, and (3) whether the regulation is unduly oppressive

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

(1992). The Foxes fail to analyze any of these considerations. "[N]aked castings into

the constitutional sea are not sufficient to command judicial consideration and

discussion." Seven Gables Corp. v. MGM/UA Entertainment Co.. 106 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

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No. 73315-0-1/22

some water rights must necessarily acquiesce to senior water rights is a natural

consequence of the prior appropriation doctrine. See, e.g.. Swinomish. 178 Wn.2d at

598, n.14 ("there are hardships attendant to any water rightwith a later priority date and

too littlewater available to satisfy all rights.").

For similar reasons, Skagit County's due process argument also fails. The

County contends the Department's instream flow rule interpretation violates the Foxes'

due process rights because it repeals a statutory right by implication. Like the Foxes,

the County's argument assumes the right granted under in RCW 90.44.050's exemption

exists outside of prior appropriation doctrine. As discussed above, the right to withdraw

water via a permit-exempt well under RCW 90.44.050 is like any other water right. That

right is subject to senior rights, such as the instream flow rule. Contrary to the County's

argument, the Department's instream flow rule interpretation does not "vitiate a statutory

right by silence," Br. of Skagit County at 21. The statutory right includes only an

exemption from the permit process, includes no right to "jump to the head of the line" of

priority. Swinomish. 178 Wn.2d at 598.

We also reject the County's claim that the Department's instream flow rule

interpretation is "new." The County was on notice that the rule might infringe permitexempt wells with later priority dates. For example, the introductory comments to the

proposed rule provide that it "would affect all future water use, if not exempted," CP at

277, and permit-exempt wells are not listed in the exemptions section of the rule. WAC

173-503-070. In the responsiveness summary and concise explanatory statement for

the rule, issued in March 2001, the Department explained that "[groundwater

withdrawals will be treated as surface water appropriations unless the applicant can

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

that same statement, the Department explained a statutory exemption exempts well

users only from the permit process, but those permit-exempt wells remain subject to

senior water rights:

Ecology has made statements in the environmental documents and public

hearing to clarify that an exempt well is only exempt from permit

reouirements. It becomes a water right when it is drilled and put to

beneficial use. It has a priority date (the date it is put to beneficial use)

and could be junior to the instream flow if put to beneficial use after the

effective date of the rule. The priority date of the exempt well could

become important during a time of scarcity when senior rights would have

to be protected.

CP at 322 (emphasis added). The County demonstrated the same understanding of the

rule in a 2003 petition for review challenging the rule's validity. The County expressly

acknowledged permit-exempt wells were subject to senior water rights, including the

instream flow rule. Thus, the wells could not provide an adequate water supply for

purposes of the building permit statute:

Though exempt from [permitting under] RCW 90.44.050, exempt wells,

like any other water use, exist within Washington's prior appropriation

scheme. This means that exempt wells that are junior to the [rule] can be

interrupted ifthe [rule's] instream flow level... is not being met.

Interruptible water sources do not meet the requirements for an adequate

reliable supply of water needed to authorize issuance of a building permit

under RCW 19.27.097.

CP at 10. In 2001, the Department believed the instream flow rule would supersede

subsequently acquired water rights such as permit-exempt wells, and the County

understood this interpretation. As discussed above, this interpretation properly

conforms with the statutory scheme and case law. See Swinomish. 178 Wn.2d at 598.

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CONCLUSION

For reasons discussed above, we affirm.

WE CONCUR:

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