One fallout from the Swinomish v. Ecology decision in 2013 was the Department of Ecology’s instruction to Skagit County that it could no longer accept permit-exempt wells in the Skagit basin as proof of an adequate water supply for building permits. RIchard and Marnie Fox purchased and subdivided a property in Skagit County near the Town of Lyman before 2000, when the Skagit River Instream Flow Rule (WAC 173-503) was adopted. They also drilled a well intending to build their home on the property. After the Supreme Court’s Swinomish decision, they applied for a building permit, but Skagit County determined their application was “incomplete” for failure to include a mitigation plan to avoid any impacts to instream flows in the Skagit River. The Foxes filed a writ of mandamus action in Skagit County Superior Court claiming that their permit-exempt well was sufficient under RCW 90.44.050 to establish a legal water supply, and sought an order forcing the County to issue the building permit. Ecology and the Swinomish Tribe intervened and argued that permit-exempt wells were subject to the instream flow rule, and did not establish uninterruptible water rights. The superior court denied the writ and the Foxes appealed to the Washington Court of Appeals, which agreed with the superior court in a published opinion dated April 11, 2016.
Following the Court of Appeals decision, the Foxes asked Tom Pors to assist their attorney, Peter Ojala, with a petition for review to the Washington Supreme Court. Tom focused their effort on three issues to convince the Supreme Court to accept the case for review:
- Is a rulemaking determination of hydraulic continuity enough, by itself, to conclude as a matter of law that a permit-exempt groundwater use is subject to the minimum instream flows and interruptible under WAC 173-503-040, and therefore an inadequate water supply under RCW 19.27.097?
- Did the Court of Appeals err in ruling that Skagit County can impose a new requirement on building permit applicants, who otherwise qualify for the groundwater permit exemption, to either obtain a water right permit or prove legal water availability and nonimpairment of instream flows?
- Did the Court of Appeals err by determining, as a matter of law, that Fox’s permit-exempt groundwater use would be junior in priority date to an instream flow water right, without a trial on factual issues concerning whether the priority date precedes the instream flow rule pursuant to the common law relation back doctrine?
Click here to read the Foxes’ Petition for Review. Skagit County filed a response supporting the Foxes’ petition. Ecology and the Swinomish Tribe filed responses opposing the petition. The Supreme Court is expected to either accept the petition or deny it within two to four months.
Contact either Tom Pors or Citizens Alliance for Property Rights (CAPR) if you are interested in supporting this case. Fighting against state government and tribes to maintain property rights, including the limited groundwater supply that the Legislature deemed in the pubic interest by exempting it from permitting requirements (see RCW 90.44.050), is an uphill and expensive battle. The Foxes and other Skagit County residents appreciate your support. CAPR’s contact for the Fox case is Gary Clancey, 360-293-7403.