¶89 (concurring) — I agree with the majority that the Growth Management Act (GMA), chapter 36.70A RCW, places a burden on counties to assure the factual and legal availability of water before issuing building permits. And Whatcom County (County) failed to meet this burden by simply relying on the Department of Ecology’s “Nooksack Rule”15 rather than actually making a finding that water was available. I write separately to emphasize the duty of the State, tribes, and local governments to work together to ensure there is available water before issuing building permits, rather than letting their burden fall onto individual permit applicants.
Discussion
¶90 The majority holds that the County failed to meet its duty under the GMA to ensure water was factually and legally available before issuing building permits. Majority at 658, 668. I agree with this holding. The GMA places a duty on counties to ensure that water is both factually and legally available before they issue building permits. RCW 19.27.097(1); RCW 58.17.110(2); see majority at 672-74. This court has recognized this duty before. Kittitas County v. E. Wash. Growth Mgmt. Hr’gs Bd., 172 Wn.2d 144, 179-80, 256 P.3d 1193 (2011); see majority at 674-75.
¶91 Here, the County failed to ascertain whether there was available water before issuing building permits. Rather, the County shifted its statutory duty under the GMA to Ecology by adopting Ecology’s presumptive Nooksack Rule. Where, as here, Ecology has not actually determined whether water is available, the County is not entitled simply to rely on Ecology’s rule.16 As the majority holds, the County *697has an independent duty under the GMA to ensure water is both factually and legally available before issuing building permits.
¶92 I write separately to address the dissent’s concern that the majority is shifting the burden of showing water availability onto individual permit applicants. Dissent at 700, 711. Like the dissent, I fear the majority could be read to say that if the County cannot rely on Ecology’s rule, then it can shift its burden onto permit applicants. But that is not so. Rather, the State and local governments have independent statutory duties to ensure water availability, and they must work together to protect water resources and ensure water availability as part of their comprehensive planning process.17
¶93 The State and the counties each have an independent statutory duty to ensure water availability. For example, before issuing a groundwater permit, Ecology must investigate and affirmatively find “(1) that water is available, (2) for a beneficial use, and that (3) an appropriation will not impair existing rights or (4) be detrimental to the public welfare.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 8, 43 P.3d 4 (2002) (citing RCW 90.03.290). Under the GMA, a county’s comprehensive plan, RCW 36.70A.040, must include a land use element that provides for the “protection of the quality and quantity of groundwater used for public water supplies.” RCW 36.70A.070(1). And before issuing a building permit, a county must determine that there are potable water supplies. RCW 58.17.110(2)(a). Thus, both the State and the counties have an independent duty to ensure water availability prior to issuing permits.
*698¶94 Although each has an independent statutory duty, the legislature envisioned cooperation between the State and local governments when it enacted the Water Resources Act of 1971 (WRA), chapter 90.54 RCW, and, later, the GMA. The legislature included language highlighting this cooperative approach throughout the statutes:
To ensure that available water supplies are managed to best meet both instream and offstream needs, a comprehensive planning process is essential .... Through a comprehensive planning process that includes the state, Indian tribes, local governments, and interested parties, it is possible to make better use of available water supplies and achieve better management of water resources. Through comprehensive planning, conflicts among water users and interests can be reduced or resolved. It is in the best interests of the state that comprehensive water resource planning be given a high priority.
RCW 90.54.010(1)(b) (emphasis added); RCW 36.70A.103 (state agencies shall comply with local comprehensive plans), .106(1) (state agencies may provide comments to local governments on a proposed comprehensive plan); RCW 19.27.097(2) (county and State may mutually determine to which areas the building permit requirements do not apply); see also WAC 365-196-700(5) (“The [WRA] is a mandate to government at all levels to engage in coordinated planning and cooperative implementation.”).
¶95 This court has recognized the cooperative spirit that the legislature envisioned when enacting these statutes. In Kittitas County, while reaffirming the county’s responsibility in land use decisions, we emphasized, “[W]e do not intend to minimize the role of Ecology. Ecology maintains its role, as provided by statute, and ought to assist counties in their land use planning to adequately protect water resources.” 172 Wn.2d at 180 (emphasis added). The majority too recognizes the cooperative approach that the GMA envisions. Majority at 680-81. But the majority focuses on how the County cannot use the cooperative approach to “disregard evidence of minimum flow impairments in reliance on *699an outdated regulation.” Id. at 684. While I agree, I think it should be made clear that the statutes do not expect the burden to fall on individual applicants where the County has failed to meet its initial burden of determining water availability through its comprehensive planning and development regulations.
¶96 When the counties and Ecology combine their planning and water resources authority, the technical resources and planning solutions offer a wide range of tools to ensure water availability. For example, a county can make its densities consistent with water availability, provide water mitigation, or ensure there are limited impervious surfaces so that more water goes into streams.18 Although the legislature has placed a burden on individual applicants to provide evidence of water, RCW 19.27.097(1), there are steps that the State and the counties must take under their statutory duties to protect water resources, ensure water availability, and engage in a comprehensive planning process. The burden on permit applicants under RCW 19.27.097(1) assumes that the State and the counties have already complied with their statutory duties to ensure the availability of water. Thus, the burden to provide evidence of water falls on individual applicants only where the State and the counties have first fulfilled their statutory duties of ensuring that water is available.
¶97 The State and the counties cannot meet their respective duties to protect this State’s dwindling water resources by relying on one another’s rules or shifting their burdens to others. As stewards of our valuable water resources, the State and the counties must work together to develop *700comprehensive plans to address water usage in our State. RCW 90.54.010(1)(b). I write separately to emphasize it is the burden of the State and local governments, independently and in cooperation, to determine water availability in the first instance. This is not a burden to be shifted onto individual permit applicants.
The Nooksack Water Resource Inventory Area, chapter 173-501 WAC.
By adopting the Nooksack Rule, the County presumes there is an adequate supply to provide water for a permit-exempt well unless Ecology has expressly closed that area to permit-exempt appropriations. Majority at 658. As the majority notes, this means the County’s position is that “water is presumptively available— *697i.e., that ‘not unavailable’ is synonymous with ‘available.’ ” Id. at 665. For further discussion of the Nooksack Rule, see id. at 676.
Ecology is, of course, not a party to this case, so this court cannot direct what it must do to assist the County in the development of a comprehensive plan and zoning code that meets the County’s obligations under the GMA. But this case presents an opportunity to highlight the generally applicable importance of comprehensive planning between the State and local governments under the Water Resources Act of 1971, chapter 90.54 RCW, and the GMA.
Wash. Supreme Court oral argument, Whatcom County v. W. Wash. Growth Mgmt. Hr’gs Bd., No. 91475-3 (Oct. 20, 2015), at 30 min., 50 sec., audio recording by TVW, Washington State’s Public Affairs Network, http://www.tvw.org; see also Kittitas County Conserv. Coal. v. Kittitas County, Nos. 07-1-0004c & 07-1-0015, 2014 WL 4809403, at *8-11, 2014 GMHB LEXIS 123, at *20-32 (E. Wash. Growth Mgmt. Hr’gs Bd. Aug. 13, 2014) (detailing the comprehensive plan, developed after remand from this court in Kittitas County, 172 Wn.2d 144, found in compliance with the GMA).