                               ..." i h l 1.   '->'



                              20I5FEB23 fcilhS"




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



WHATCOM COUNTY,                                       No. 70796-5-1
                                                      (consolidated with Nos.
                     Petitioner,                       72132-1-1 and 70896-1-1)

ERIC HIRST; LAURA LEIGH BRAKKE;                       DIVISION ONE
WENDY HARRIS; DAVID STALHEIM;
and FUTUREWISE,

                     Cross Petitioners,

              v.



WESTERN WASHINGTON GROWTH                             PUBLISHED
 MANAGEMENT HEARING BOARD,
                                                      FILED: February 23, 2015
                     Respondent.



      Cox, J. — Whatcom County appeals the Growth Management Hearings

Board's Final Decision and Order dated June 7, 2013 (FDO). The Board

determined that the Rural Element of the County's comprehensive plan and

zoning code, as amended by Ordinance No. 2012-032, fails to comply with the

Growth Management Act (GMA). Eric Hirst, Laura Leigh Brakke, Wendy Harris,

David Stalheim, and Futurewise (collectively Hirst) cross-appeals the FDO,

arguing that the Board erred by declining to declare the ordinance invalid.
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1 -l)/2



       We hold that the Board engaged in unlawful procedure by taking official

notice of and relying on two documents without first providing the County the

opportunity to contest information in these documents. We also hold that the

Board erroneously interpreted and applied the law in determining that Ordinance

No. 2012-032 fails to comply with the GMA. But the Board did not abuse its

discretion by declining to declare the ordinance invalid. We affirm in part,

reverse in part, and remand for further proceedings.

       In August 2012, Whatcom County adopted Ordinance No. 2012-032.1 By

its terms, Ordinance No. 2012-032 amended the Whatcom County

Comprehensive Plan and Zoning Code.2 Among other things, this ordinance

amended certain Rural Element policies and adopted by reference various pre

existing County regulations. These amendments were in response to a series of

prior rulings from the Board and the courts requiring that the Rural Element of the

County's comprehensive plan and development regulations be brought into

compliance with the GMA.

      Hirst petitioned the Board for review, challenging the adoption of

Ordinance No. 2012-032. In particular, Hirst challenged the ordinance on rural

land use planning, which included a challenge to the adequacy of the County's

measures to protect surface and groundwater resources.




      1 Clerk's Papers (Case No. 70796-5) at 178-93.

      2 Id. at 178.
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/3



       The Board held a hearing in April 2013. Thereafter, the Board issued its

FDO. The Board concluded that the Rural Element amendments to the County's

comprehensive plan and development regulations do not constitute measures to

protect rural character by protecting surface and groundwater resources. Thus,

according to the Board, Hirst met its burden of demonstrating that the County

failed to comply with the GMA, specifically RCW 36.70A.070(5)(c).3 But the

Board denied Hirst's request for a declaration of invalidity.4 The Board remanded

the ordinance to the County to take corrective action within 180 days.5

       Both parties appealed. The County sought review in Skagit County

Superior Court, challenging the Board's determination of noncompliance with the

GMA. Hirst sought review in Thurston County Superior Court, challenging the

Board's decision not to declare the ordinance invalid.

      Thurston County superior court transferred Hirst's appeal to Skagit County

superior court, where the cases were consolidated under the Skagit County

cause number.6 The Board issued its Certificates of Appealability regarding the

FDO, certifying the consolidated appeals for direct review by this court.

      In April 2014, the Board held a compliance hearing. The Board concluded

that "Whatcom County [was] in continuing non-compliance with the Growth



      3]d,at1559(FDOat44).

      4 id, at 1565 (FDO at 50).



      6 Id. at 147-149.
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/4



Management Act [as determined in the FDO]."7 The Board issued a Second

Order on Compliance.8

      The County moved for discretionary review of the FDO, and we accepted

the consolidated appeals for direct review. We also granted the County's request

for discretionary review of the Second Order on Compliance. Based on the

agreement of the parties at oral argument and our review of the records before

us, we consolidate these matters.9

                              LEGAL PRINCIPLES

       In reviewing growth management hearings board decisions, courts give

"'substantial weight'" to a board's interpretation of the GMA.10 "Courts' deference

to boards is superseded by the GMA's statutory requirement that boards give

deference to county planning processes."11 Accordingly, a board's ruling that




      7 Clerk's Papers (Case No. 72132-1) at 26 (emphasis omitted).

      8 Id at 19-26.

      9 Pursuant to RAP 3.4, the title of this case in this court remains the same
as in the superior court. See Joint Stipulation, Motion, and Order Consolidating
Appeals. Clerk's Papers (Case No. 70796-5) at 147-49.

       10 Kittitas County v. E. Wash. Growth Mqmt. Hr'qs Bd., 172 Wn.2d 144,
154, 256 P.3d 1193 (2011) (internal quotation marks omitted) (quoting Lewis
County v. W. Wash. Growth Mqmt. Hr'qs Bd., 157 Wn.2d 488, 498, 139 P.3d
1096(2006)).

       11
            Id.
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/5



fails to apply this "more deferential standard of review to a county's action is not

entitled to deference" from the courts.12

       Comprehensive plans and development regulations are presumed valid

upon adoption.13 "To make a finding of noncompliance with the GMA, a board

must find that the county's actions are clearly erroneous, meaning the board has

a 'firm and definite conviction that a mistake has been committed.'"14 The GMA

"'is not to be liberally construed.'"15

       The Administrative Procedures Act (APA) governs judicial review of

challenges to decisions by a board. Courts apply the standards of the APA,

chapter 34.05 RCW, and look directly to the record before the board.16 The party

challenging the board's decision bears the burden of proving it is invalid.17 The

validity of the decision is determined under the standards of review provided in




      12 Quadrant Corp. v. State Growth Mqmt. Hr'qs Bd., 154 Wn.2d 224, 238,
110 P.3d 1132 (2005) (internal quotation marks omitted).

       13 RCW 36.70A.320(1); Town of Woodwav v. Snohomish County. 180
Wn.2d 165, 174, 322 P.3d 1219 (2014).

       14 Kittitas County, 172 Wn.2d at 154-55 (citation omitted) (internal
quotation marks omitted) (quoting Lewis County, 157 Wn.2d at 497).

       15 ]d (quoting Thurston County v. W. Wash. Growth Mqmt. Hr'qs Bd., 164
Wn.2d 329, 342, 190 P.3d 38 (2008)).

       16 ]d at 155.

       17 Thurston County v. Cooper Point Ass'n, 148 Wn.2d 1, 7, 57 P.3d 1156
(2002).
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/6



RCW 34.05.570(3), which sets forth nine subsections for granting relief from the

board's decision.


       A court reviews de novo alleged errors of law under RCW 34.05.570(3)(b),

(c), and (d).18 In reviewing claims under RCW 34.05.570(3)(e) that an order is

not supported by substantial evidence, a court determines whether there is "'a

sufficient quantity of evidence to persuade a fair-minded person of the truth or

correctness of the order.'"19

       Here, the County primarily relies on three of these grounds for relief—

RCW 34.05.570(3)(c), (d), and (e)—to argue that the Board erred when it

concluded that the County's measures to protect water resources (water

availability and water quality) did not comply with the GMA.

                           ASSIGNMENTS OF ERROR

       As an initial matter, Hirst argues that the County's failure to assign error to

the Board's findings of fact in its opening brief makes them verities on appeal.

We disagree.

       RAP 10.3(g) requires a party to assign error to each finding of fact it

contends was improperly made with reference to the finding by number. 'The

appellate court will only review a claimed error which is included in an




       18 Kittitas County, 172 Wn.2d at 155.

       19 Jd. (internal quotation marks omitted) (quoting Thurston County. 164
Wn.2dat341).
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/7



assignment of error or clearly disclosed in the associated issue pertaining

thereto."20 Unchallenged findings of fact become verities on appeal.21

       But a "'technical violation of the rules will not ordinarily bar appellate

review, where justice is to be served by such review.'"22 The Rules of Appellate

Procedure "allow appellate review of 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."23

       Here, the Board did not enumerate and consolidate its findings of fact in

one location. But, to the extent it made such findings, the nature and extent of

the County's challenges to them are clear. Thus, this court's review is not in any

way hindered by the absence of any formal assignments of error. Significantly,

Hirst fails to claim any prejudice by the County's failure to assign error to any

findings in its opening brief. For both of these reasons, we reject Hirst's

argument and reach the merits of the County's challenges.




       20
            RAP 10.3(g).

       21 Spokane County v. E. Wash. Growth Mqmt. Hr'qs Bd., 176 Wn. App.
555, 576, 309 P.3d 673 (2013), review denied, 179 Wn.2d 1015 (2014).

     22 State v. Olson, 126 Wn.2d 315, 322, 893 P.2d 629 (1995) (quoting
Dauqhtrv v. Jet Aeration Co., 91 Wn.2d 704, 592 P.2d 631 (1979)).

      23 Ferry County v. Growth Mqmt. Hr'qs Bd.,    Wn. App.       , 339 P.3d
478, 495 (2014); see also Yakima County v. E. Wash. Growth Mqmt. Hr'qs Bd.,
168 Wn. App. 680, 687 n.1, 279 P.3d 434 (2012) (concluding that the court was
sufficiently apprised of the challenged findings for review despite Yakima
County's failure to assign error to the Growth Management Hearing Board's
informal findings).
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/8



                               WATER AVAILABILITY


       The County argues that the Board erred when it concluded that the

County's measures to protect water availability were clearly erroneous.

Specifically, the County contends that the Board's conclusion is based on an

erroneous interpretation of the law under RCW 34.05.570(3)(d). We agree.

        Under RCW 34.05.570(3)(d), courts "'accord deference to an agency

interpretation of the law where the agency has specialized expertise in dealing

with such issues, but [courts] are not bound by an agency's interpretation of a

statute.'"24

                                   GMA Provisions

        RCW 36.70A.020 states goals to guide the development and adoption of

comprehensive plans and development regulations. One of the stated goals is to

"[p]rotect the environment and enhance the state's high quality of life, including

air and water quality, and the availability of water."25

       RCW 36.70A.070 sets forth mandatory elements of a comprehensive plan.

It states that "[c]ounties shall include a rural element."26 It further states that the

rural element "shall include measures that apply to rural development and protect

the rural character of the area, as established by the county, by ... [protecting ..



       24 Utter v. Dep't of Soc. & Health Servs., 140 Wn. App. 293, 300, 165 P.3d
399 (2007) (quoting City of Redmond v. Cent. Puqet Sound Growth Mqmt. Hr'qs
Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998)).

       25RCW36.70A.020(10).

       26 RCW 36.70A.070(5).

                                               8
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/9



. surface water and groundwater resources ... ,"27 "'Rural character' refers to

the patterns of land use and development established by a county in the rural

element of its comprehensive plan" that, among other things, "are compatible

with the use of the land by wildlife and for fish and wildlife habitat" and "are

consistent with the protection of natural surface water flows and groundwater and

surface water recharge and discharge areas."28

       After looking to these statutes and others, the Board concluded that the

GMA is "replete with requirements to protect ground and surface water and

ensure land uses are compatible for fish and wildlife."29 It also concluded that a

county's comprehensive plan rural lands provision "must include measures

governing rural development to protect water resources."30

       We agree that these initial conclusions of the Board were proper

interpretations of the law. The County properly concedes in its opening brief that

the GMA requires it to "adopt a rural element that includes measures to protect

[water availability and water quality]."31 Accordingly, the question is whether the

Board properly concluded that the ordinance fails to protect water availability and

water quality as required by the GMA.



       27 RCW 36.70A.070(5)(c)(iv).

       28 RCW 36.70A.030(15)(d), (g).

       29 Clerk's Papers (Case No. 70796-5) at 1537 (FDO at 22).

       30 jd, at 1536 (FDO at 21).

       31 Brief of Appellant Whatcom County at 1.

                                              9
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/10



       In Kittitas County v. Eastern Washington Growth Management Hearings

Board, the supreme court interpreted the GMA requirements for the protection of

water resources, specifically water availability.32 At issue in that case was

whether the Board properly concluded that Kittitas County's subdivision

regulations failed to protect water resources as required by the GMA.33 The

Board concluded that the subdivision regulations violated the water protection

requirements of the GMA because they "allow[ed] multiple subdivisions side-by-

side, in common ownership, which then [could] use multiple exempt wells."34

And the Board concluded that this "fail[ed] to assure that authorized subdivisions

[did] not contravene or evade water permitting requirements."35

       In upholding the Board's decision, the supreme court rejected the

argument that Kittitas County was preempted from adopting regulations related

to the protection of groundwater resources.36 Rather, it concluded that "several

relevant statutes indicate that the County must regulate to some extent to assure

that land use is not inconsistent with available water resources."37 Itfirst pointed

to one of the same provisions we quoted earlier in this opinion to assert that the



       32172Wn.2d 144, 175-81, 256 P.3d 1193 (2011).

       33 JcLat 175.

       34 ]cL (internal quotation marks omitted).

       351^177.

       36 \±a\M8.

       37 jd at 178.

                                             10
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/11



"GMA directs that the rural and land use elements of a county's plan include

measures that protect groundwater resources."38 It then pointed to other

provisions, codified at RCW 19.27.097 and 58.17.110, to assert that these

provisions "require counties to assure adequate potable water is available when

issuing building permits and approving subdivision applications."39 After looking

to these provisions it concluded, "[T]he County is not precluded and, in fact, is

required to plan for the protection of water resources in its land use planning."40

       Accordingly, with respect to the issue in that case, the supreme court held

that 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."41 And it affirmed the Board's

decision that Kittitas County's subdivision regulations failed to comply with that

mandate.


       Here, as the Board expressly acknowledged in the FDO, the County's

subdivision regulations do not present the same problem that was at issue in

Kittitas. As the Board stated, the subdivision regulations "do not allow the 'daisy-

chaining' of plat applications that was the specific target of the Supreme Court's


       38 id at 178 (citing RCW 36.70A.070(1), (5)(c)(iv)).

       39 Id at 179.

       40 Id

       41 id at 181.


                                             11
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1 -l)/12



finding of noncompliance in the Kittitas case."42 In fact, the County's subdivision

regulations state that "[a]ll contiguous parcels of land in the same ownership

shall be included within the boundaries of any proposed long or short subdivision

of any of the properties" and that "lots so situated shall be considered as one

parcel... ,"43

       Rather, at issue in this case, is the Board's decision that certain provisions

of the Whatcom County Code do not comply with the GMA because they

incorporate Department of Ecology rules respecting water availability and "this is

not the standard to determining legal availability of water."44 Specifically, the

Board took issue with Policies 2DD-2.C.6 and 2DD-2.D.7.

       Policy 2DD-2.C.6 states:

       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.1451




       42 Clerk's Papers (Case No. 70796-5) at 1555 (FDO at 40).

       43 Whatcom County Code 21.01.040(3)(a) (emphasis added).

       44 Clerk's Papers (Case No. 70796-5) at 1556 (FDO at 41).

       45 id at 1554-55 (FDO at 39-40).

                                             12
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/13



       With respect to this policy, the Board concluded: "Policy 2DD-2.C.6 does

not govern development in a way that protects surface water flows and thus fails

to meet the requirements of RCW 36.70A.070(5)(c)(iv)."46

       The Board noted similar concerns with Policy 2DD-2.D.7, which states:

       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.1471

       With respect to this policy, the Board determined that Policy 2DD-2.C.7

"fails to limit rural development to protect ground or surface waters with respect

to individual permit-exempt wells as required by RCW 36.70A.070(5)(c)(iv)."48

       In reaching these conclusions, the Board focused on the following: "The

Board notes the water withdrawals allowed under Policy 2DD-2.C.6 and 2.C.7

adopt by reference three existing code sections all of which allow use of exempt

wells except 'where [the Department of Ecology] has determined by rule that

water for development does not exist.' However, this is not the standard to

determining legal availability of water."49

       As we read these regulations, they essentially provide that in determining

the availability of water, the County seeks to meet the requirements of the GMA




       46id at 1556 (FDO at 41).

       47 \±

       48 id at 1557 (FDO at 42).

       49 id at 1556 (FDO at 41).

                                              13
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/14



by following consistent Department of Ecology regulations regarding the

availability of water. Yet, the Board concluded that the County's use of Ecology's

rules as a means of meeting the requirements of the GMA fails to comply with

this statute. Rather, the Board appears to conclude that the County must make

its own, separate determination of the availability of water in order to fulfil the

requirements of the GMA. This conclusion is an erroneous interpretation of the

law.


       As explained earlier, Kittitas established that counties are not preempted

from adopting regulations for the protection of groundwater resources.50 The

supreme court squarely rejected Kittitas County's argument that only Ecology

has this authority, stating that preemption prevents counties from "separately

appropriating groundwaters."51 The court went on to hold that counties "must

regulate to some extent to assure that land use is not inconsistent with available

water resources."52

       The court was silent about what other actions counties may take in order

to comply with the GMA. Thus, Kittitas does not expressly answer the question

before this court—whether the County must make its own determination about

the availability of water or whether it may meet the requirements of the GMA by

invoking the assistance of Ecology by the code provisions at issue here.



       50 Kittitas County, 172 Wn.2d at 178.

       51 id

       52 id (emphasis omitted).

                                              14
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/15



       While Kittitas does not expressly answer this question, it provides helpful

guidance into the proper relationship between Ecology and counties for purposes

of the GMA. In rejecting Kittitas County's argument, based on RCW 90.44.040,

that it was preempted from adopting regulations related to the protection of

groundwater resources, the supreme court stated:

       While [RCW 90.44.040] preempts the County from separately
       appropriating groundwaters, it does not prevent the County from
       protecting public groundwaters from detrimental land uses.
       Nothing in the text of chapter 90.44 RCW expressly preempts
       consistent local regulation^

       It further explained:

             While Ecology is responsible for appropriation of
      groundwater by permit under RCW 90.44.050, the County is
      responsible for land use decisions that affect groundwater
      resources, including subdivision, at least to the extent required by
      law. In recognizing the role of 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, we 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.[54]

      Thus, the supreme court in Kittitas anticipated consistent local regulation

by counties in land use planning to protect water resources. This necessarily

contemplates proper cooperation between Ecology and counties regarding the

protection of such resources.




      53 Jd (emphasis added) (emphasis omitted).

      54 id at 180 (emphasis added).

                                           15
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/16



       Here, under the County's regulations, it will only approve a subdivision or

building permit application that relies on an exempt well when the well site "does

not fall within the boundaries of an area where [Ecology] has determined by rule

that water for development does not exist."55 For example, relevant to this case,

the County's regulations do not permit development based on a private well that

is inconsistent with Ecology's rule for the Nooksack Water Resource Inventory

Area (WRIA 1), the "Nooksack Rule."

       By incorporating Ecology's regulations to determine availability of water for

development, the County's regulations provide for cooperation between the

County's exercise of its land use authority and Ecology's management of water

resources. This method is consistent with the cooperative relationship

contemplated by Kittitas and is consistent with the laws regarding protection of

water resources under the GMA. The Board erred when it concluded otherwise.

       Additionally, the Board's conclusion that the County may not rely on

Ecology to assist in this determination allows for inconsistent conclusions

between the County and Ecology about the availability of water. The Board's

conclusion would mandate such a result in this case, where the Board's

conclusions about the availability of water in WRIA 1 is contrary to Ecology's own

interpretation about the availability of water in that area. We address this more

fully in the next section.




       55 Clerk's Papers at 1555 (FDO at 40).

                                            16
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1 -l)/17



                                  Nooksack Rule


      As stated earlier, the Board determined that the County's comprehensive

plan and development regulations fail to protect instream flows from impairment

by groundwater withdrawals. And the Board determined that the policies fail to

protect ground or surface waters with respect to individual permit-exempt wells.

Contained in its analysis is the Board's determination that the County must deny

a building or subdivisions permit in WRIA 1 unless the applicant can demonstrate

that the proposed groundwater withdrawal in that area will not impair minimum

instream flows. By concluding that the GMA mandate to protect water resources

requires the County to deny such applications, the Board again erroneously

interpreted the law and effectively required the County to adopt a policy

inconsistent with Ecology's administrative rules.

      To provide context, we turn to the supreme court's review of general water

law principles in Postema v. Pollution Control Hearings Board and other relevant

cases.56 The doctrine of prior appropriation applies when an applicant seeks to

obtain a water right in Washington.57 "Under this doctrine, a water right may be

acquired where available public water is appropriated for a beneficial use, subject

to existing rights."58 The same principles apply to groundwater.59



      56 142 Wn.2d 68, 79, 11 P.3d 726 (2000).

      57 id

      58 id

      59 id

                                            17
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/18



       Ecology is responsible for appropriation of groundwater by permit under

RCW 90.44.050. When a person seeks a permit to appropriate groundwater,

Ecology must investigate the application pursuant to RCW 90.03.290 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."60 "The groundwater code recognizes that surface waters and

groundwater may be in hydraulic continuity."61 Thus, "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."62

       An exemption to the groundwater permitting requirement exists in RCW

90.44.050. Specifically, that statute provides an exemption for withdrawal of

groundwater for domestic uses in an amount not exceeding 5,000 gallons a

day.63 Accordingly, where the exemption applies, Ecology does not engage in

the usual review of a permitting application under RCW 90.03.290.64




       60 id

       61 id at 80.

       62 id at 80-81.

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

       64Jdat16.

                                               18
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/19



       Ecology also has the exclusive authority to establish minimum instream

flows or levels to protect fish, game, birds, other wildlife resources, and

recreational and aesthetic values.65 Under this exclusive authority, Ecology

adopted a regulation dividing the state into 62 areas, commonly known as "Water

Resource Inventory Areas" (WRIAs).66 Ecology has adopted various rules

governing new appropriations of water in these areas.

       Here, the Board stated its view of the law as follows:

               In Postema v. Pollution Control Hearings Board, the
       Supreme Court made clear that where Ecology has administratively
       by adoption of rules closed a surface water body as in much of
       Whatcom County, and an applicant intends to rely on a new
       withdrawal from a hydraulically connected groundwater body, new
       water is no longer legally available for appropriation and the
       application must be denied. Likewise where Ecology has set
       minimum instream flow by rule, as in Nooksack WRIA 1,
       subsequent groundwater withdrawals may not contribute to the
       impairment of the flows.[67]

       The Board then concluded that the County's regulations, which allow

approval of a subdivision or building permit that relies on a private well when the

proposed well site does not fall within the boundaries of an area where Ecology

has determined by rule that water for development does not exist, "falls short of

the Postema standard, as it does not protect instream flows from impairment by

groundwater withdrawals."68



       65 RCW 90.03.247; RCW 90.22.010.

       66 WAC 173-500-040.

       67 Clerk's Papers (Case No. 70796-5) at 1555 (FDO at 40).

       68 \±

                                             19
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/20



      The Board also concluded that the County's regulations allowing approval

of a subdivision or building permit using an exempt well except "where [Ecology]

has determined by rule that water for development does not exist" was

inconsistent with the availability of water in closed basins or where instream flows

were not met.69 It stated:

       If Ecology has closed a stream to additional withdrawals, it is
       unlawful to initiate a permit-exempt groundwater withdrawal
       that would impact the stream. Where the proposed
       groundwater withdrawal is located within a basin closed to
       new surface water appropriations, or where Ecology has set
       instream flows that are not consistently met, there is a
       presumption that no additional water is legally available.
       Under RCW 19.27.097 or RCW 58.17.110, it is the applicant's
       burden to "provide evidence" that water is available for a new
       building or subdivision. Thus, according to Ecology, the County
       must deny a permit for a new building or subdivision unless
       the applicant can demonstrate factually that a proposed new
       withdrawal from a groundwater body hydraulically connected
       to an impaired surface water body will not cause further
       adverse impact on flows. The Board notes Whatcom County's
       regulations allow mitigations, purchase or transfer of water rights,
       and other appropriate strategies, but 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 J701

       Implicit in its analysis is the Board's determination that water is not

available for permit-exempt withdrawals in WRIA 1. And it effectively concluded

that the County must deny a building or subdivisions permit unless the applicant




       69 id at 1556 (FDO at 41).

       70 id at 1556-57 (FDO at 41-42) (emphasis added).

                                             20
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/21



can demonstrate that a proposed new permit-exempt groundwater withdrawal will

not impair minimum instream flows.

       The Board's conclusions are erroneous for several reasons.

       First, the Board erroneously interpreted and applied Postema. The Board

concluded that the County's regulations fell short of the "Postema standard." But

Postema addressed issues arising from Ecology's denial of "applications for

groundwater appropriation permits" not permit-exempt withdrawals.71 Thus, the

County's regulations do not "fall short" of the "Postema standard," as we read

that case, because Postema does not squarely address the protection of

instream flows from permit-exempt groundwater withdrawals.

       Second, the Board erroneously applied legal principles from one rule, the

Skagit River Basin Instream Flow Rule, to the rule at issue in this case, the rule

for WRIA 1 also known as the "Nooksack Rule."72 As stated earlier in this

opinion, the Board concluded that "[i]f Ecology has closed a stream to additional

withdrawals, it is unlawful to initiate a permit-exempt groundwater withdrawal that

would impact the stream."73 And it concluded that "according to Ecology, the

County must deny a permit for a new building or subdivision unless the applicant

can demonstrate factually that a proposed new withdrawal from a groundwater




      71 Postema, 142 Wn.2d at 73.

      72 Seech. 173-501 WAC.

      73 Clerk's Papers at 1556-57 (FDO at 41-42).

                                            21
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/22



body hydraulically connected to an impaired surface water body will not cause

further adverse impact on flows."74

      To support these conclusions, the Board relied on a December 19, 2011

letter from Ecology to the Director of Snohomish County Planning and

Development Services. According to the Board, it believed that letter "explained]

the effect of closed basins and instream flows on rural residential

development."75 Significantly, the instream flow rule discussed in the letter was

the Skagit River Basin Instream Flow Rule, WAC 173-503.76 That is not the

Nooksack Rule, which covers most of Whatcom County. Nevertheless, the

Board reasoned, "While Snohomish County facts differ, the applicable legal

principles are the same."77

       But the Board's reasoning directly conflicts with Postema. That is

because it is based on a uniform interpretation of instream flow rules,

erroneously assuming that they regulate permit-exempt withdrawals in different

regions in the same manner. In Postema, the supreme court recognized that

different basin rules contain different language and expressly declined "to search

for a uniform meaning to rules that simply are not the same."78 Thus, the Board


       74 id at 1557 (FDO at 42).

       75 id at 1556 (FDO at 41).

       76 Clerk's Papers (Case No. 70796-5) at 616.

       77 id at 1556 (FDO at 41 n.154).

       78 Postema, 142 Wn.2d at 87.


                                            22
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/23



improperly relied on this letter concerning another basin to apply its reasoning to

the Nooksack Rule.


       Finally, the Board erroneously interpreted the Nooksack Rule and required

the County to adopt an interpretation that is inconsistent with Ecology's

interpretation of the rule.

       As the Board noted in the FDO, 'WRIA 1 comprises most of Whatcom

County."79 The regulation is fully set forth in WAC 173-501-010 et seq. In its

regulation for WRIA 1, Ecology established minimum instream flows and closed

specific sub-basins to new surface water appropriations.80

       The Board concluded that if Ecology has closed a stream to additional

withdrawals, or if Ecology has set instream flows that are not consistently met, it

is unlawful to initiate a permit-exempt groundwater withdrawal that would impact

the stream. Accordingly, this assumes that the Nooksack Rule's closure of

certain water bodies bars permit-exempt groundwater use in WRIA 1 as a matter

of law. But this is contrary to Ecology's interpretation of the Nooksack Rule,

which is that the Nooksack Rule does not govern permit-exempt withdrawals.

       On this latter point, we base our conclusion on the Department of

Ecology's amicus curiae brief in this case.81 We do so because courts generally




       79 Clerk's Papers (Case No. 70796-5) at 1530 (FDO at 15 n.44).

       80 See WAC 173-501 -030-040.

       81 State of Washington, Department of Ecology's Amicus Curiae Brief.

                                            23
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/24



"accord deference to an agency interpretation of the law where the agency has

specialized expertise in dealing with such issues."82

       Ecology argues that "the Nooksack Rule does not mandate that water is

no longer available for certain new permit-exempt groundwater uses in rural

areas of Whatcom County and that land use applications relying on private wells

for water supply would have to be denied in all instances."83

       First, Ecology argues that the express language of the Nooksack Rule

"only governs water uses proposed through the water right permitting system,

and not permit-exempt groundwater withdrawals."84 We agree.

       Several provisions in the rule pertain only to whether water rights may be

established under the permitting system. And as Ecology asserts, "This

emphasis on the permitting system indicates that Ecology did not intend this Rule

to govern permit-exempt groundwater use under RCW 90.44.050."85 These

provisions are as follows:

      WAC 173-501-030, which establishes instream flows in WRIA 1, states in

subsection (4), "Future consumptive water right permits issued hereafter for




      82 Utter. 140 Wn. App. at 300.

      83 State of Washington, Department of Ecology's Amicus Curiae Brief at
20.


      84idat14.

      85]dat16.


                                           24
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/25



diversion of surface water in the Nooksack WRIA and perennial tributaries shall

be expressly subject to instream flows ... ."86

         WAC 173-501-040, which establishes closures and partial year closures of

certain areas of the Nooksack River and in several creeks, states that when a

project is proposed on a stream that is closed to further appropriations, "the

department shall deny the water right application unless the project proponent

can adequately demonstrate that the project does not conflict with the intent of

the closure."87

         WAC 173-501-060 relates to groundwater use. It provides:

                 If department investigations determine that there is
         significant hydraulic continuity between surface water and the
         proposed groundwater source, any water right permit or certificate
         issued shall be subject to the same conditions as affected surface
         waters. If department investigations determine that withdrawal of
         groundwater from the source aquifers would not interfere with
         stream flow during the period of stream closure or with
         maintenance of minimum instream flows, then applications to
         appropriate public groundwaters may be approved.^

         As Ecology correctly states, 'The language in all the above sections

pertains to the issuance of water right permits, and cannot be read to also apply

to permit-exempt groundwater withdrawals which occur outside of the permitting

system administered by Ecology."89



         86 (Emphasis added.)

         87 WAC 173-501-040(2) (emphasis added).

         88 WAC 173-501-060 (emphasis added).

         89 State of Washington, Department of Ecology's Amicus Curiae Brief at
17-18.

                                             25
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/26



       Additionally, WAC 173-501-070, which is titled "Exemptions," provides the

following exemption:

             (2) Single domestic, (including up to 1/2 acre lawn and
       garden irrigation and associated noncommercial stockwatering)
      shall be exempt from the provisions established in this
      chapter, except that Whatcom Creek is closed to any further
      appropriation, including otherwise exempted single domestic use.
      For all other streams, when the cumulative impact of single
      domestic diversions begins to significantly affect the quantity of
      water available for instream uses, then any water rights issued after
      that time shall be issued for in-house use only, if no alternative
      source is available.1901

      As Ecology notes, this expressly exempts single domestic uses and there

is no express language in this section limiting the exempted domestic use to

groundwater.

       In sum, these provisions do not, by their express terms, indicate that water

is not available under the circumstances of this case. We agree with Ecology

that "the Nooksack Rule, in its present form, does not govern permit-exempt

groundwater use."91

       Ecology also argues that this is clear when read in contrast to water

management rules for other basins which include express language indicating

that they govern permit-exempt uses of water. For example, Ecology cites WAC

173-503, the rule for the Skagit River Basin. This is the basin rule in the

December 2011 letter on which the Board relied. The Skagit River Basin rule



      90 (Emphasis added.)

      91 State of Washington, Department of Ecology's Amicus Curiae Brief at
18.



                                            26
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/27


states that "[f]uture consumptive water right permits issued hereafter for diversion

of surface water in the Lower and Upper Skagit (WRIA 3 and 4) and perennial
tributaries, and withdrawalof groundwater in hydraulic continuity with

surface waterin the Skagit River and perennial tributaries, shallbe expressly
subject to instream flows         "92 As this emphasized language makes clear, in

contrast to the Nooksack Rule, this rule expressly indicates that it governs

permit-exempt uses of water

       In sum, the Board's decision effectively requires the County to reach a

legal conclusion regarding water availability for permit-exempt withdrawals that is

inconsistent both with Postema and with Ecology's interpretation of the Nooksack

Rule. That simply is not the law.

       The County also argues that the Board's "conclusion regarding the

County's obligations in making water availability determinations in closed basins

is not supported by substantial evidence . . . ,"93 In support of this, it argues that

the Board improperly relied on the December 2011 letter from Ecology to the

Director of Snohomish County Planning and Development Services. We agree.

The letter addresses issues in another basin having nothing to do with the

Nooksack Rule. Thus, it is not evidence of how Ecology administers the

Nooksack Rule.




      92 WAC 173-503-040(5) (emphasis added).

      93 Brief of Appellant Whatcom County at 25.

                                             27
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/28



       Hirst argues that the County "may not raise the issue of a controlling

'Ecology Interpretation' for the first time on appeal."94 But the issue of how to

properly interpret the Nooksack Rule was before the Board. And the County

expressly argued to the Board the legal position that Ecology confirms in its

amicus brief. Thus, this argument is without merit.

       Hirst argues that Steensma v. Department of Ecology & Baves Brothers

LLC, a case cited by the County to support its position that Ecology has

interpreted the Nooksack Rule in a manner inconsistent with that advanced by

the Board, does not constitute a uniform agency interpretation that is entitled to

great weight.95 But the County cited this case as an example, to illustrate that

Ecology interpreted the rule this way in this one instance. It did not cite it to

establish a formal Ecology interpretation of the rule.

       In any event, Ecology's amicus brief in this appeal fully explains its

interpretation of the Nooksack Rule. And that interpretation is fully consistent

with the position that the County took below and continues to take in this appeal.

       Hirst argues that even if there was "an 'Ecology interpretation' expressing

a 'legal conclusion' that the [Nooksack Rule] 'was not intended to apply to permit

exempt withdrawals,' as the County claims, it would not immunize the County




     94 Appellants' Brief & Brief of Respondents Eric Hirst, Laura Leigh Brakke,
Wendy Harris and David Stalheim, and Futurewise at 20.

       95 Brief of Appellant Whatcom County at 21-23 (citing Steensma v. Dep't
of Ecology & Baves Bros., LLC, No. 11-053, 2011 WL 4301319 (Wash. Pollution
Control Hr'gs Bd. Sept. 8, 2011)).


                                              28
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/29



from its obligation to protect surface and ground water under the GMA."96 We

agree. But that argument does not come to grips with our conclusion that it is

proper for the County to fulfill its requirements under the GMA by adopting

regulations that are consistent with Ecology's Nooksack Rule.

       Hirst argues that the Board's decision and reasoning are consistent with

state water law. Hirst is mistaken.


       Hirst argues that "Postema establishes that 'a minimum flow set by rule is

an existing right which may not be impaired by subsequent groundwater

withdrawals."97 And he cites Swinomish Tribal Community v. Department of

Ecology for the proposition that the water code "does not contain 'any provision

permitting a jump to the head of the line in priority' for exempt wells."98

Accordingly, he asserts that "Postema and Swinomish . . . support the Board's

conclusion that the GMA requires the County to avoid impairment of surface

waters" and that even if the County's interpretation of the Nooksack Rule was

correct, "this original intent must change with changes in science and the law."99

       As we already discussed, Postema did not address the issue of permit-

exempt withdrawals. Rather, its focus was on interpretation and application of



       96 Brief of Respondents Eric Hirst, Laura Leigh Brakke, Wendy Harris,
David Stalheim, and Futurewise at 29.

       97
            id at 30 (emphasis omitted) (quoting Postema, 142 Wn.2d at 81)

       98 id. at 31-32 (internal quotation marks omitted) (quoting Swinomish
Indian Tribal Cmtv. v. Dep't of Ecology. 178 Wn.2d 571, 598, 311 P.3d 6 (2013)).

       99 id at 32.


                                             29
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/30



the decision criteria when reviewing applications for permits. Additionally,

Swinomish is distinguishable on its facts, as it involved the Skagit Basin Rule, a

rule that expressly prohibited permit exempt withdrawals.100 In short, Hirst's

reliance on these cases is not persuasive.

      We conclude that the Board incorrectly interpreted and applied the

relevant law in determining that the ordinance fails to comply with the GMA by

failing to include measures to protect rural character by protecting surface and

groundwater resources. Moreover, the letter on which it relied to interpret WRIA

1 requirements is not substantial evidence of how Ecology administers the

Nooksack Rule.


                                WATER QUALITY

      The County next argues that the Board erred when it concluded that the

County's measures to protect surface and ground water quality were clearly

erroneous. Specifically, the County contends that the Board's conclusion is

based on an unlawful procedure. The County also contends that the Board's

conclusion is based on an erroneous interpretation and application of the law and

is not supported by substantial evidence.

                               Unlawful Procedure

      The County argues that the Board's conclusion is based on unlawful

procedure because it took official notice of two documents in a manner

inconsistent with its own rules. We agree.



      100 Swinomish. 178 Wn.2d at 577.


                                             30
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/31



       RCW 34.05.570(3)(c) provides for relief from an agency order if the court

determines that the agency "has engaged in unlawful procedure or decision

making process, or has failed to follow a prescribed procedure." This court

reviews de novo a claim under this subsection.101

       Additionally, RCW 34.05.570(h) provides for relief from an agency order if

the court determines that the order "is inconsistent with a rule of the agency

unless the agency explains the inconsistency by stating facts and reasons to

demonstrate a rational basis for inconsistency."

       WAC 242-03-630, which was promulgated by the Board, provides that the

board or presiding officer may officially notice matters of law, including

Washington state law. The "Washington state law" category includes, among

other things, "decisions of administrative agencies of the state of Washington"

and "codes or standards that have been adopted by an agency of this state or by

a nationally recognized organization or association."102

       Another regulation, WAC 242-03-640, provides that, "[i]n the absence of

conflicting evidence, the board or presiding officer, upon request made before or

during a hearing, may officially notice" certain material matters including, (a)

business customs, (b) notorious facts, and (c) technical or scientific facts.103 It

further states, "Parties shall be notified either before or during a hearing of the



       101 Spokane County, 176 Wn. App. at 583.

       102 WAC 242-03-630(2).

       103 WAC 242-03-640(1).


                                             31
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/32



material fact(s) proposed to be officially noticed, and shall be afforded the

opportunity to contest such facts and materials."104

       Here, as part of its analysis in the FDO of water availability and water

quality problems the Board cited three documents that it termed "authoritative

references."105 The first document is the 2070 WRIA 1 State of the Watershed

Report.™6 The other two documents are documents of which the Board took

official notice—the Puget Sound Partnership's 2012/2013 Action Agenda for

Puget Sound, and the Washington State Department of Fish and Wildlife's Land

Use Planning for Salmon, Steelhead and Trout.107 The Board described the first

document as "a document adopted by a state agency" and described the second

document as "a science-based land use planner's guide to salmonid habitat

protection and recovery."108 The Board cited WAC 242-03-630 as its authority to

take official notice of these documents.109

       Under WAC 242-03-630(2), the Board is authorized to take notice of,

among other things, "decisions of administrative agencies of the state of

Washington" or of "codes or standards that have been adopted by" a state



       104 WAC 242-03-640(3) (emphasis added).

       105 Clerk's Papers (Case No. 70796-5) at 1545 (FDO at 30).

      106 id

      107 id at 1524, 1546-50 (FDO at 9, 31-35).

      108 id at 1524 (FDO at 9).

      109 id


                                              32
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/33



agency.110 Neither of these two documents falls within these categories. And no

other categories in this regulation appear to apply to these documents.111 Thus,

the Board improperly relied on this regulation to take official notice of these two

documents.


       Hirst argues that the Board had the authority to take official notice of

government documents under a different regulation, WAC 242-03-640.112 We

disagree.

       Under this regulation, the Board may take official notice of material facts

including "specific facts which are capable of immediate and accurate

demonstration by resort to accessible sources of generally accepted authority"

such as "facts stated in any publication authorized or permitted by law to be

made by any federal or state officer, department, or agency."113 Any party may



       110 WAC 242-03-630(2) ("The board or presiding officer may officially
notice ... (2) Washington state law. The Constitution of the state of Washington;
decisions of the state courts; acts, resolutions, records, journals, and committee
reports of the legislature; decisions of administrative agencies of the state of
Washington; executive orders and proclamations by the governor; all rules,
orders, and notices filed with the code reviser; and codes or standards that have
been adopted by an agency of this state or by a nationally recognized
organization or association.").

       in
            See WAC 242-03-630(1 )-(6).

      112 Appellants' Brief & Brief of Respondents Eric Hirst, Laura Leigh
Brakke, Wendy Harris and David Stalheim and Futurewise at 41-42.

         113 WAC 242-03-640(1 )(b) ("In the absence of conflicting evidence, the
board or presiding officer, upon request made before or during a hearing, may
officially notice ... (b) Notorious facts. Facts so generally and widely known to
all well-informed persons as not to be subject to reasonable dispute or specific
facts which are capable of immediate and accurate demonstration by resort to
accessible sources of generally accepted authority, including, but not exclusively,
                                             33
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/34



request that official notice be taken of a material fact, or the board or presiding

officer may take official notice of a material fact on its own initiative.114 Taking
such notice is expressly conditioned on "the absence of conflicting evidence."115

       Hirst's argument fails for several reasons.

       First, there is no showing that there was an "absence of conflicting

evidence" required under this subsection in order for the Board to take notice of

such material facts.116 Second, under this regulation, the parties "shall be

notified either before or during a hearing of the material fact(s) proposed to be

officially noticed, and shall be afforded the opportunity to contest such facts and

materials."117 This record fails to show any notice to any party either before or

during the hearing that the Board intended to take notice of these documents.

Finally, there is no showing that the parties were provided an opportunity to

contest these materials. To the contrary, the briefing indicates the County was

first aware that these two documents were the subjects of official notice by the

Board in its analysis when it issued the FDO.




facts stated in any publication authorized or permitted by law to be made by any
federal or state officer, department, or agency.").

      114 WAC 242-03-640(2).

      115 WAC 242-03-640(1).

      116 id

      117 WAC 242-03-640(3) (emphasis added).

                                             34
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1 -l)/35



       Hirst argues that the notice requirement "only applies to materials

'proposed' to be officially noticed."118 And he argues that these materials were

not "proposed," but rather, the Board took notice on its own initiative. But we

cannot accept the untenable proposition that the County should be deprived of

the opportunity to contest these materials on the basis that the Board took official

notice on its own initiative. Notice and an opportunity to be heard are,

necessarily, a part of these procedures. In short, this argument is not

persuasive.

       For these reasons, we conclude that the Board engaged in unlawful

procedure when it took official notice of these two documents without notifying

the County and without affording it an opportunity to contest the materials prior to

the FDO. Additionally, the Board's actions are inconsistent with its rules, and the

Board did not explain the inconsistency. Accordingly, the question is what

remedy is appropriate.

       Hirst argues that even if the Board erred, the County was not substantially

prejudiced.119 We cannot agree.

       In the FDO, the Board characterized these two documents as

"authoritative references" when it discussed the factual basis for identifying water

availability and water quality issues. As such, we reject the argument that the




       118 Appellants' Brief & Brief of Respondents Eric Hirst, Laura Leigh
Brakke, Wendy Harris and David Stalheim, and Futurewise at 42.

       119 id at 43-44.


                                            35
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/36



Board's reliance on these documents for its decision did not prejudice the
County.

       Hirst points out that in addition to these two documents, the Board relied

on a third document to support its finding that the link between land development

and water resources is well-established. Hirst contends that the third document,

alone, could support this finding.

       We do not quarrel with the proposition that land development can and

does impact water resources. We acknowledge that the Board refers in the FDO

to other evidence that was properly part of the administrative record as part of its

analysis of the water quality issue. Nevertheless, we simply do not know

whether the Board would have reached the same decision without the

documents that it improperly considered in its analysis. It is not our function to

make factual findings in this important area. Rather, it is the Board, in the first

instance, who must do so. We decline to speculate on what the Board would

have done on the basis of a proper record.

       We conclude that the proper remedy is to reverse this portion of the FDO

and remand for reconsideration by the Board on a proper administrative record.

               Erroneous Interpretation and Application of the Law

       The County also argues that the Board's conclusion on the County's

measures protecting water quality is based on an erroneous interpretation and

application of the law "by effectively requiring the County to correct past or




                                             36
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/37



existing impacts."120 The County argues that this conclusion is implicit based on

the Board's reliance on preexisting water quality problems as evidence to find

new regulations inadequate. To the extent that the Board implicitly concluded

that the County has a duty to "enhance" water quality rather than "protect" it, we

agree.


         RCW 34.05.570(3)(d) provides that the court shall grant relief from an

agency order if it determines that the agency has erroneously interpreted or

applied the law. A court reviews de novo a claim brought under this

subsection.121

         Under the GMA, the County is required to include measures to protect

water quality. RCW 36.70A.070(1) states, 'The land use element shall provide

for protection of the quality and quantity of groundwater used for public

water supplies."122 RCW 36.70A.070(5)(c)(iv) states, "Counties shall include a

rural element," which "shall include measures that apply to rural development

and protect the rural character of the area ... by .. . [protecting... surface

water and groundwater resources ... ."123 Rural character "refers to the

patterns of land use and development established by a county in the rural

element of its comprehensive plan" that, among other things, "are consistent with



         120 Brief of Appellant Whatcom County at 47.

         121 Kittitas County. 172 Wn.2d at 155.

         122 (Emphasis added.)

         123 (Emphasis added.)

                                             37
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/38



the protection of natural surface water flows and groundwater and surface

water recharge and discharge areas."124

       In Swinomish Indian Tribal Community v. Western Washington Growth

Management Hearings Board, the supreme court expressly considered the

definition of the word "protect" as it was used in RCW 36.70A.172(1), which

requires counties "to protect the functions and values of critical areas."125 In that

case, the Board had concluded that the requirement under the GMA to "protect"

critical areas is met when local governments prevent new harm to critical

areas.126 The Swinomish Indian Tribal Community challenged this, arguing that

where an area is already in a degraded condition, it is not being protected unless

that condition is improved or enhanced.127

       The supreme court rejected this argument. First, it looked to the dictionary

definition of the word "protect" provided by the Tribe, which was "to shield from

injury, danger or loss" and to protect, which "can result in [an object's]

enhancement."128 The supreme court stated that even under this definition,

"'can' is used to describe an option of enhancement, rather than a requirement




       124 RCW 36.70A.030(15)(g) (emphasis added).

       125 161 Wn.2d 415, 427-30, 166 P.3d 1198 (2007).

       126 id at 427.

       127 Id

       128 id at 428 (alteration in original) (internal quotation marks omitted).

                                             38
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/39



of enhancement, when defining 'protect.'"129 And it concluded that this definition

"illustrates that something can be protected without it being enhanced."130

       Further, the supreme court looked to the GMA itself and noted that "[t]he

legislature has also recognized that 'protect' has a different meaning than

'enhance.'"131 It cited to several examples to support this assertion. After

reviewing these statutes, the court concluded that the legislature had not

imposed a duty on local governments to enhance critical areas, although it does

permit it.132 It stated, "Without firm instruction from the legislature to require

enhancement of critical areas, we will not impose such a duty."133 Thus, it

concluded that the "no harm" standard protects critical areas by maintaining

existing conditions.134

       Swinomish Indian Tribal Community is instructive here. While that case

involved a different provision under the GMA, there is no reason this distinction

should be viewed differently in this context. A review of the relevant GMA

provisions provided above shows that the legislature has not imposed a duty on

the County to "enhance" the water quality as part of its efforts to protect it.



       129 id

       130 id

       131 id at 429.

       132 id at 429-30.

       133 Jd at 430.

       134 Id.


                                              39
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/40



Rather, each of the relevant statutes requires the County to include measures to

"protect" water quality. Accordingly, like in Swinomish Indian Tribal Community,

without firm instruction from the legislature to require enhancement, we decline to

impose a duty to enhance water quality.

       In sum, to the extent that the Board concluded that the County has an

obligation under the GMA to "enhance" water quality, this was an erroneous

interpretation of law.

       Hirst argues that "the legislature has imposed a duty to 'enhance' water

quality."135 In support of this, Hirst points to Swinomish Indian Tribal Community

and asserts that, the supreme court, after examining RCW 36.70A.020(10),

"discussed the 'duty to enhance the quality of water.'"136

       It is true that in that case the supreme court cited and briefly discussed

RCW 36.70A.020(10).137 It stated, "RCW 36.70A.020(10)[] lists as a goal of the

GMA to 'enhance the state's high quality of life, including air and water

quality.'"138 It is also true that the supreme court, in concluding that there was no

duty to enhance critical areas, later stated, "A duty to enhance the quality of




       135 Appellants' Brief & Brief of Respondents Eric Hirst, Laura Leigh
Brakke, Wendy Harris and David Stalheim, and Futurewise at 40.

       136 id (emphasis omitted) (quoting Swinomish Indian Tribal Cmtv., 161
Wn.2d at 429-30).

       137 Swinomish Indian Tribal Cmtv.. 161 Wn.2d at 429.

       138 id (quoting RCW 36.70A.020(10)).

                                             40
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/41



water is not a duty to enhance fish habitat."139 But whether RCW

36.70A.020(10) imposes a duty to enhance the water quality was not at issue in

Swinomish Indian Tribal Community. Further, RCW 36.70A.020(10) sets forth a

goal of the GMA, not a requirement. Accordingly, reliance on this case and

statute as establishing a duty to enhance water quality is not persuasive.

                               Substantial Evidence

       The County contends that the Board's conclusion that the County's

measures fail to protect water quality is not supported by substantial evidence.140

First, the County argues that the Board's conclusion is based on general

evidence of existing water quality problems, which are insufficient to prove that

the ordinance fails to comply with the GMA. Second, the County also asserts

that the Board did not adequately evaluate or consider its water quality

protections. We conclude that we need not decide either question on the basis

of the record that is currently before us. But we do express concerns the Board

should consider on remand.


      With regard to the first question, we need not decide whether the County's

characterization of the Board's action is correct. But it is something the Board

should address on remand. Importantly, as we already discussed, two of the

three documents that the Board considered as "authoritative resources" were

improperly considered by the Board in its FDO.



      139 id. (emphasis added).

      140 Brief of Appellant Whatcom County at 38-45.

                                           41
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1 -l)/42



       As for the second question, we view that as a question whether the Board

has adhered to the standard set in the GMA that "boards give deference to

county planning processes."141 As the law provides, a board's ruling that fails to

apply this "'more deferential standard of review' to a county's action is not entitled

to deference" from the courts.142

       Beyond these two observations, we need not address the question of

water quality any further.

                    REQUEST FOR FINDING OF INVALIDITY

       In his cross-appeal, Hirst contends that the Board erred when it denied his

request for a finding of invalidity. Specifically, 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.

       "If the growth board finds that the plan or regulation is flawed, it has two

options: (1) it may enter a finding of noncompliance or (2) it may enter a finding

of invalidity."143 If the growth board finds noncompliance, it remands the matter

to the county with instructions to comply within a certain time, and the county

plans and regulations remain valid during the remand period.144 "If the flaw in the


       141 Kittitas County. 172 Wn.2d at 154.

       142 Quadrant Corp.. 154 Wn.2d at 238.

       143 Town of Woodwav. 180 Wn.2d at 174 (emphasis added).

       144 id

                                             42
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/43



plan or regulation represents a major violation of the GMA, the growth board has

the option of determining that the plan or regulation is invalid."145 "'Upon a

finding of invalidity, the underlying provision would be rendered void.'"146

       RCW 36.70A.302(1) sets out the legal standards to apply in deciding

whether to make a determination of invalidity. It provides:

       (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.11471

       Here, the Board denied Hirst's request for a finding of invalidity. It did so

after determining that the ordinance failed to comply with the GMA.

       As the use of the word "may" necessarily implies, this decision is a matter

of discretion.148 Thus, the question is whether the Board abused its discretion.

       In the final order, it stated:



       145 id at 175 (emphasis added).

       146 Id (quoting King County v. Cent. Puget Sound Growth Mgmt. Hr'gs
Bd., 138 Wn.2d 161,181, 979 P.2d 374 (1999)).

       147 RCW 36.70A.302(1) (emphasis added).

       148 See Strenqe v. Clarke. 89 Wn.2d 23, 28, 569 P.2d 60 (1977).


                                              43
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/44



              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,
       [Hirst] ha[s] not met the standard for a declaration of invalidity.11491

       As case law and the relevant statute indicate, the Board's decision to

make a finding of invalidity is discretionary. As the supreme court stated, "If the

growth board finds that the plan or regulation is flawed, it has two options ...

."150 And as the GMA states, 'The board may determine that part or all of a

comprehensive plan or development regulations are invalid .. . ,"151 Here, the

Board's statements merely reflect its view that this not a proper case to find

invalidity, not that Hirstfailed to satisfy the statutory requirements for invalidity.

This is a proper exercise of discretion.

       Hirst argues, "The 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.'"152 And Hirst points out that

RCW 36.70A.302 nowhere requires a finding that noncompliant provisions are

"the most egregious" or that they threaten the local government's "future ability"




       149 Clerk's Papers (Case No. 70796-5) at 1565 (FDO at 50) (footnote
omitted).

       150 Town of Woodwav, 180 Wn.2d at 174 (emphasis added).

       151 RCW 36.70A.302(1) (emphasis added).

       152 Appellants' Brief & Brief of Respondents Eric Hirst, Laura Leigh
Brakke, Wendy Harris and David Stalheim, and Futurewise at 45-46 (quoting
Clerk's Papers (Case No. 70796-5) at 1565 (FDO at 50)).


                                              44
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/45



to comply with the GMA. But with these statements, the Board was not

attempting to state the applicable test for invalidity under the statute. Rather, it

appears to be stating its own specific standard of when it chooses to exercise its

statutory authority to make an invalidity determination. This is seen by the

opening sentence, which states, "This Board has previously held it will declare

invalid only the most egregious noncompliant provisions which threaten the local

government's future ability to achieve compliance with the Act."153 This is

consistent with the GMA, which as stated above, grants the Board discretion.

       Hirst also argues that the Board's denial of the invalidity request is not

supported by substantial evidence.154 Hirst argues that the record before the

Board shows that all of the requirements for invalidity are met, and he points to

different documents and evidence in the record to support the assertion that

continued validity of the ordinance will "substantially interfere with the goals of

the GMA."155 But given that this is a discretionary decision by the Board, this

argument is not relevant.

       Hirst cites Spokane County v. Eastern Washington Growth Management

Hearings Board, where Division Three upheld a Board's determination of

invalidity, stating that the Board had "correctly interpreted and applied the law



       153 Clerk's Papers (Case No. 70796-5) at 1565 (FDO at 50) (emphasis
added).

      154 Appellants' Brief & Brief of Respondents Eric Hirst, Laura Leigh
Brakke, Wendy Harris and David Stalheim, and Futurewise at 44-50.

       155 Id. at 47 (internal quotation marks omitted).

                                             45
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/46



upon thorough reasoning with due consideration for the facts."156 Hirst contrasts

Spokane County, arguing that in this case, the Board summarily dismissed

his invalidity argument. But because that case involved a determination of

invalidity, rather than a Board's decision not to find invalidity, it is distinguishable

and not helpful.

                       SECOND ORDER ON COMPLIANCE

       The County also asks this court to reverse the Second Order on

Compliance. That order followed issuance of the FDO and a subsequent hearing

on whether the County had corrected the problems to bring the County into

compliance with the GMA. The County argues that the Board erred when it

concluded that the County's measures to protect surface and groundwater

availability, including the measures incorporated by the 2014 Ordinance, were

clearly erroneous.157 We agree.

       As an initial matter, Hirst argues that the County is barred from raising and

arguing the issues it raises in this case "because it did not argue them before the

board, as RCW 34.05.554 requires."158 But because "[t]he various stages of this

litigation are part of a single proceeding," we reject this argument.159


       156176 Wn. App. 555, 578, 309 P.3d 673 (2013), review denied. 179
Wn.2d 1015 (2014).

       157 Opening Brief of Whatcom County (Case No. 72132-1) at 3.

      158 Respondents' Brief of Eric Hirst, Laura Leigh Brakke, Wendy Harris,
David Stalheim, and Futurewise (Case No. 72132-1) at 11.

      159 Clallum County v. W. Wash. Growth Momt. Hr'gs Bd., 130 Wn. App.
127, 131-33, 121 P.3d 764 (2005).
                                               46
No. 70796-5-1 (consolidated with Nos. 72132-1-1 and 70896-1-l)/47



      This issue is controlled by the prior parts of this opinion. We held that the

FDO should be reversed and the matter remanded to the Board for

reconsideration on a proper record. Thus, we also reverse the second order.

      We affirm the FDO on its invalidity determination and reverse on its

determinations regarding water availability and water quality. We also reverse

the Second Order on Compliance. We remand to the Board for reconsideration

on a proper record.

                                                        CuX,^3~,
WE CONCUR:




  IA* cAe -f          -1




                                           47
