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Home My WebLink AboutR-2002-098 United States / State of Washington Department of Ecology Water Rights Settlement (re: Naches River water rights in D.O.RESOLUTION NO. R-2002-98 A RESOLUTION authorizing and ratifying actions by the Mayor and the City Manager to execute a City of Yakima Water Rights Settlement Agreement with the United States and the State of Washington Department of Ecology concerning the City's Naches River water rights in Acquavella. WHEREAS, the City of Yakima filed Claim No. 2110 with the Yakima County Superior Court in Department of Ecology v. Acquavella, Cause No. 77-2-01484-5 to confirm surface water rights from the Naches River that the City uses in its municipal water systems; and WHEREAS, on January 13, 2000, the Acquavella Court entered an Order of Mediation and Appointment to mediate certain issues in the Major Claimant surface water right claims, including the City's water rights, and the Court also entered a Protective Order for Mediation providing for confidentiality and preventing public disclosure of confidential information relating to the mediation; and, WHEREAS, the City of Yakima participated in the confidential mediation with the other parties in an attempt to settle the claims of the City and other Major Claimants in Acquavella, ongoing since 1977, and to avoid further expense and uncertainty from continued litigation; and WHEREAS, the City of Yakima has negotiated a Water Right Settlement Agreement with the State of Washington Department of Ecology and the United States that contains favorable terms and conditions concerning the City's Naches River water rights; and WHEREAS, on July 9, 2002, the Mayor and the City Manager signed the Water Right Settlement Agreement on behalf of the City,of Yakima and authorized the filing of the Agreement and necessary,. legal pleadings with the Acquavella Court; and WHEREAS, the City Council deems it to be,in the best interest of the City to enter into the Water Right Settlement.Agreement and to request the Acquavella Court to confirm the City's ,Naches River, water rights as provided therein, now, therefore, BE IT RESOLVED BY THE .CITY COUNCIL OF THE CITY OF YAKIMA: The signatures of the Mayor and the City Manager on the attached City of Yakima Water Right Settlement Agreement between the City of Yakima, the State of Washington Department of Ecology, and the United States is hereby authorized, ratified and approved. ADOPTED BY THE CITY COUNCIL this 6th day of August, 2002. ATTEST: Karen Roberts, City Clerk • K:\25739\00025\AWG\AWG N20Y5 ary Place, Mayor CITY OF YAKIMA WATER RIGHT SETTLEMENT AGREEMENT This is an Agreement ("Agreement") by and between the City of Yakima ("City"), the Washington State Department of Ecology ("Ecology"), and the United States ("US") for the settlement and agreement of certain issues involving certain water rights in the Washington State Department of Ecology v. Acquavella ("Acquavella") adjudication, each of which is a "Party" and together the "Parties" to this Agreement. The Parties will provide the Acquavella Court with a contemporaneously executed Stipulation Re: City of Yakima Claim No. 2110 ("Stipulation") setting forth the elements of these water rights from Paragraphs 1 and 2 below, a Joint Memorandum in Support of Stipulation Re: City of Yakima's Water Rights Claim, and a copy of this Agreement for the Court's information. 1.a: The Parties agree that the City should and shall be confirmed the following "Old Union" Water Right. i. Quantity (acre-feet) Total quantity applied to beneficial use is 5;585 acre-feet. ii. Diversion Rate (cubic feet per second, "cfs") April 1 through August 31 —17.73 'cfs. September 1-30 11.82 cfs. October 1-15 — 8.87 cfs. iii. Purpose of Use Municipal supply. City of Yakima Water Rights Settlement Agreement Page 2 of 23 1.b. iv. Priority Date June 30, 1878. v. Point of Diversion Nelson Bridge, 1,790 feet south and 1,600 east from northwest corner of Section 9, being within the SE '/4 NW 1/4 of Section 9, Township 13N, Range 18 EWM. vi. Place of Use City service area as of the date of this Agreement, as set forth on the Service Area Map attached hereto as Exhibit A and incorporated by referenceherein. The City service area is located within the 1/4 1/4 section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A is controlling as to place of use. vii. Period of Use April 1 through October 15. The Parties agree that the City should and shall be confirmed the following "Glaspey" Water Right. i. Quantity (acre-feet) Total quantity applied to beneficial use is 945 acre-feet. ii. Diversion Rate April 1 through'August 31 — 3 cfs. September 1-30 — 2 cfs. October 1-15 - 1'.5 cfs. City of Yakima Water Rights Settlement Agreement Page 3 of 23 iii. Purpose of Use Municipal supply. iv. Priority Date April 1, 1869. v. Point of Diversion Nelson Bridge, 1,790 feet south and 1,600 east from northwest corner of Section 9, being within the SE '/4 NW 1/4 of Section 9, Township 13N, Range 18 EWM. vi. Place of Use City service area as of the date of this Agreement, as set forth on the Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the '/4 1/4 section legal description attached hereto as Exhibit B and incorporated by referenceherein: Exhibit A is controlling as to place of use. vii. Period of Use April 1 through October 15. 1.c. The Parties agree that the City should and shall be confirmed the following "10 cfs" Water Right. i. Quantity (acre-feet) Total quantity applied to beneficial'use is 7;260 acre-feet. City of Yakima Water Rights Settlement Agreement Page4of23 ii. Diversion Rate 10 cfs. iii. Purpose of Use Municipal supply. iv. Priority Date June 30, 1902. v. Point of Diversion Naches River Water Treatment Plant (also known as the Rowe Hill or Gleed Plant), 900 feet north 64° 20' east of the southwest corner of Section 13,'being within the SW 1/4 SW 1/4 of Section 13, Township 14N, Range 17 EWM. vi. Place of Use City service area as of the date of this Agreement, as set forth on the Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the 1/4 I/4 section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A is controlling as to place of use. vii. Period of Use January 1 -December 31. 1.d. The Parties agree that the City should and shall be confirmed the following "1951 Off -Season" Water Right. (also referred to as the 30 cfs water right) City of Yakima Water Rights Settlement Agreement Page 5 of 23 i. Quantity (acre-feet) Total quantity applied to beneficial use is 4,414 acre-feet, subject to the combined quantity limitation set forth in Paragraph 1.f. below. ii. Diversion Rate 29 cfs. iii. Purpose of Use Municipal supply. iv. Priority Date January 29, 1951. v. Point of Diversion Naches River Water Treatment Plant (also known as the Rowe Hill or Gleed Plant), 900 feet north 64° 20' east of the southwest corner of Section 13, being within the SW 1/4 SW 1/4 of Section 13, Township 14N, Range 17 EWM. vi. Place of Use City service area as of the date of this Agreement, as set forth on the Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the '/4 1/4 section legal description attached hereto a's Exhibit B and incorporated by reference herein. Exhibit A is controlling as to place of use. City of Yakima Water Rights Settlement Agreement Page 6 of 23 vii. Period of Use October 16 to the beginning of storage control, as determined by the US Bureau of Reclamation. 1.e. The Parties agree that the US should and shall be decreed in the name of the US on behalf of the City the following water right under Bureau of Reclamation Contract No. 14-06- W53, dated December 12, 1952, as amended on December 10, 1965 ("Reclamation contract water right"). i. Quantity (acre-feet) Total quantity applied to beneficial use is 5,083, of which a maximum of 3,583 acre-feet`rriay be divertedat the Naches River Water Treatment Plant and a maximum "of 1,500 acre-feet may be diverted at Nelson Bridge, subject to the combined quantity limitation set forth in Paragraph 1.£ below. ii. Diversion Rate 29 cfs at the Naches River Water Treatment Plant diversion point. 6.2 cfs at the Nelson Bridge diversion point. iii. Purpose of Use Municipal supply. iv. Priority Date. May 10, 1905. City of Yakima Water Rights Settlement Agreement Page 7 of 23 v. Points of Diversion Nelson Bridge, 1,790 feet south and 1,600 east from northwest corner of Section 9, being within the SE ' NW ' of Section 9, Township 13N, Range 18 EWM, at which a maximum of 1,500 acre-feet may be diverted. Naches River Water Treatment Plant (also known as the Rowe Hill or Gleed Plant), 900 feet north 64° 20' east of the southwest corner of Section 13, being within the SW ' SW % of Section 13, Township 14N, Range 17 EWM, at which a maximum of 3,583 acre-feet may be diverted. vi. Place of Use' City service area as of the date of this Agreement, as set forth on the Service`Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the ' ' section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A is controlling as to place of use. vii. Period of Use The beginning of storage control, as determined by the US Bureau of Reclamation, through October 15. 1.f. The maximum combined quantity that the City may divert in any single calendar year under the 1951 off-season water right described in'Paragraph 1.d and the portion of the Reclamation contract water right diverted at the Naches River Water Treatment Plant described in Paragraph 1.e above is 7,826 acre-feet. This•maximum combined quantity provision does not City of Yakima Water Rights Settlement Agreement Page 8 of 23 apply to the permit for the inchoate portion of the 1951 off-season water right described in Paragraph 2.d below or to the portion of the Reclamation contract water right diverted at Nelson Bridge. 1.g. This Agreement among the Parties resolves all claims to water by the City in Acquavella under Claim No. 2110. The City is consequently waiving all other claims that the City did or could have filed in Acquavella not expressly listed herein. The claims waived include, but are not limited to, the "50 cfs right," the "1000 cfs right," and the "water right reservation" in Rattlesnake Creek that are set forth in Claim No. 2110. Nothing herein shall act as a legal or factual disposition or admission involving or concerning water rights other than those claimed by the City. Notwithstanding the above, the City does not waive and this Agreement does not address, resolve, or waive the arguments of any Party concerning 1) City Claim No. 0675 regarding the Yakima Airport water rights in the Ahtanum subbasin, and 2) City "Oak Flats" water right certificate No. 938-D that is the subject of Yakima County Water Conservancy Board No. 11-2000 (May 31, 2000) and Ecology modification and approval (August 14, 2000). 2.a. The Parties agree to a limitation of the annual quantities of the Old Union water right and the portion of the Reclamation contract water right diverted at Nelson Bridge after the end of the Transition Period as defined in this Paragraph 2. "Transition Period" means the period of time beginning on (i) the 61st day after the Yakima County Superior Court's entry of a Conditional Final Order regarding the City's' Water Right Claim No. 2110 in the event that no appeals are filed within that time, or (ii) after the final resolution of any appeals concerning said Conditional Final Order, and ending ten (10) years thereafter. At the end of the Transition City of Yakima Water Rights Settlement Agreement Page 9 of 23 Period, the annual quantity of the Old Union water right shall be reduced to 2,879 acre-feet and the annual quantity of the portion of the Reclamation contract water right diverted at Nelson Bridge shall be reduced to 917 acre-feet.1 The following table summarizes the City water rights diverted at Nelson Bridge during and after the Transition Period: Water Right Annualuantrt Q duringthe ;.Transition Perio ;:Annual .Quantity; at the end of the.' ;Transition Period.: Glaspey 945 945 Old Union 5,585 2,879 Reclamation contract water right diverted at Nelson Bridge 1,500 917 Total annual quantity diversion at Nelson Bridge 8,030 4,741 The purpose of the Transition Period is to provide the City with a reasonable period of time to plan, arrange funding for, and construct a water—efficient system for delivery of water diverted at Nelson Bridge. 2.b. In accordance with Paragraph 2.a., above, at the conclusion of the Transition Period, the City agrees that it shall voluntarily waive its rights to 2,706 acre-feet per year of water under the Old Union water right, and 583 acre-feet per year of water under the portion of the Reclamation contract water right diverted at Nelson Bridge. The water rights so waived will remain with or revert to the U.S. for the purposes identified in Paragraph 3.c. At the direction of At the end of Transition Period, the total of the Reclamation Contract water right is 4,500 acre feet (a maximum of 3,583 acre-feet diverted at the Naches River Water Treatment Plant and a maximum of 917 acre-feet diverted at Nelson Bridge). City of Yakima Water Rights Settlement Agreement Page 10 of 23 the Court, after the entry of the final adjudication decree in Acquavella, Ecology shall issue adjudicated water right certificates for the Old Union water right and the Reclamation contract water right that shall include two sections. The first section of the adjudicated water right certificates for these two water rights shall confirm the water rights elements set forth in Paragraphs 1.a. for the Old Union water right, and 1.e. for the Reclamation contract water right, above. The second section of the adjudicated water right certificates for these two water rights shall confirm the water rights elements set forth in Paragraphs 1.a. for the Old Union water right and 1.e. for that portion of the Reclamation contract water right that is diverted at Nelson Bridge, as modified by the reductions in annual quantity for these two water rights that will take effect at the end of the Transition Period as set forth in paragraph 2.a., above. This second section of the adjudicated water right certificates for the Old Union water right'and that portion of the Reclamation contract water right diverted at Nelson Bridge shall specify the date when the reduced maximum annual quantities for the two water rights shall take effect. In the event that the final adjudication decree in Acquavella is entered after the end of the Transition Period, the adjudicated water right certificates for the Old Union water right and that portion of the Reclamation contract water right diverted at Nelson Bridge shall contain the same first section, and the same second section, but shall explain that the second section contains the effective maximum annual quantities for the two water rights,, as required by this Agreement. The Parties agree that they shall waive any right to appeal the issuance of the adjudicated water right certificates for the City, as long as the certificates comport with the terms of this Agreement. 2.c. The City shall not transfer any Of ifs water rights diverted at the Nelson Bridge, in whole or in part, to any third party for consumptive use outside of the City place of use during City of Yakima Water Rights Settlement Agreement Page 11 of 23 the Transition Period. In the event that excess water becomes available under the water rights diverted at Nelson Bridge during the Transition Period, such excess water shall be applied to the uses set forth, in paragraph 3.c below. 2.d. . Ecology shall issue to the City a permit for 1,986 acre-feet, which is the inchoate portion of the 1951 off-season water right in Paragraph 1.d above, and 29 cfs. Ecology shall issue said permit in the form attached hereto as Exhibit C, which is incorporated by reference herein. The 1,986 acre-feet is additive to the annual quantity, but the 29 cfs is not additive to the instantaneous quantity, of the 1951 off-season water right stated in Paragraph 1.d above. The maximum combined quantity provision in Paragraph 1.f above does not apply to the 1,986 acre- feet described in this Paragraph 2.d. Ecology shall issue, in the form attached hereto as Exhibit D which is incorporated by reference herein, to the City a superceding certificate for the 1951 off-season water right quantity set forth in Paragraph 1.d. above. 2.e. The City agrees to use the water rights described in Paragraphs 1 and 2, above, of this Agreement only within the place of use identified in Exhibit A; provided, however, that the City may seek to enlarge said place of use by submitting an application(s) pursuant to RCW 90.03.380 in which the City proposes to add to the City's municipal water system a new water right(s) not described in Paragraph's 1 or 2, above, to a new place of use not described in Exhibit A. In the event that such an application(s) is approved under RCW 90.03.380, then Exhibit A would be amended to describe the enlarged place of use. Any such new water right(s) shall then become subject to the limitations set out in'this paragraphs 2.c, 2.e, and 2.f of this Agreement. 2.f. The City shall not, without the written consent of the Parties, transfer, sell, or lease any part of the water rights described in Paragraphs 1 and 2,. above, of this Agreement City of Yakima Water Rights Settlement Agreement Page 12 of 23 outside of the place of use identified in Exhibit A; provided, however, nothing herein shall preclude the City from selling or otherwise transferring the consumptive use portion of said water rights for instream flow purposes, or otherwise by the written agreement of the Parties, pursuant to and in compliance with applicable state and federal law. 2.g. The following table summarizes the total maximum annual and instantaneous quantities of the City water rights under Acquavella Claim No. 2110 resolved in this Agreement diverted at Nelson Bridge and at the Naches River Water Treatment Plant at the conclusion of the Transition Period. At the conclusion of the Transition Period _ ; Nelson Bridge ` 'Naches' River Water .. ., reatmerit. f ; Plant, Total maximum annual quantity 4,741 acre-feet 15,086 acre-feet Total maximum instantaneous quantity, 26.93 cfs (includes the highest qt -the seasonal diversion rates under Glaspey and Old Union water rights) 39 cfs The summary of the total maximum annual quantity at the Naches River Water Treatment Plant in the above chart does not include any amounts, up to a maximum of 1,986 acre-feet, that the City may divert, use, and perfect under the permit described in Paragraph 2:d above. 3.a. Ecology, US, and the City agree not to object to or to appeal the above terms in Paragraphs 1 and 2 that are present in any Report of the Court, Conditional Final Order, or other City of Yakima Water Rights Settlement Agreement Page 13 of 23 judicial order or determination as to the City's Water Right Claim No. 2110, subject to Paragraph 11, below. This does not preclude the Parties from cross appealing or responding to an appeal in the event that either the Report(s) of the Court or Conditional Final Order for the City is appealed by any non -signatory to this Agreement; provided, that in any such cross appeal or response to an appeal a Party shall not take positions or advance arguments that are in opposition to or inconsistent with the terms in Paragraphs 1 and 2 above. 3.b. RESERVED 3.c. The Parties agree that any water interests claimed by, but waived or not confirmed to the City, remain with or revert to the US for use in satisfaction of the Yakama Nation's reserved water rights and Yakima Project purposes as described below. Those uses include the following: i. meeting the Yakama Nation's' time immemorial Treaty rights; ii. meeting the Yakama Nation's 1855 Treaty'rights; iii. complying with the 1945 federal Consent Decree in Kittitas Reclamation District v. Sunnyside Valley Irrigation District (E.D. Wash.) (Civil Action No. 21) ("1945 Consent Decree"), including meeting nonproratable and proratable rights; iv. enhancing Yakama Nation Treaty trust assets; v. implementing the Yakima River Basin Water Enhancement Project, P.L. 103-434, Title XII, Act of October 31, 1994, 108 Stat. 4526, 4550 (YRBWEP); vi. retention of water in carryover storage from year to year; City of Yakima Water Rights Settlement Agreement Page 14 of 23 vii. other existing federal contractual water distribution obligations within the Basin; and viii. other federally authorized project purposes consistent with federal law and state law (unless preempted by federal law). The listing of these uses is not intended to and does not prioritize these uses or establish water rights. 3.d. The Parties further agree that unless and until there exists an agreement or judicial resolution determining that the US has no ability to beneficially use the water interests and surface water for purposes referenced in Paragraph 3.c., above, the water remains within the total water supply available ("TWSA") for use, distribution, and storage by the US. 3.e. The US agrees that it will not deliver water to an entity holding water delivery contracts in amounts in excess of quantities confirmed in an agreement or judicial resolution for that entity's water rights. The US further agrees that it will not issue new contracts for new uses, or amend existing contracts for the delivery of additional quantities without first acquiring a concomitant state water right, unless in satisfaction of a federal reserved water right in accordance with law, or unless there exists an agreement or judicial resolution to the contrary. 3.f. Ecology agrees that it will riot issue new water rights without consulting with the US and the Yakama Nation. Ecology fiirtlier agrees that, unless and until such time as there exists an agreement or judicial resolution determining that the US has no ability to beneficially use water interests and surface water for purposes referenced iri Paragraph 3.c., above, Ecology will not issue new surface water rights anywhere in the Yakima River Basin without a concomitant commitment by the US to contract for' the delivery of water associated with such a City of Yakima Water Rights Settlement Agreement Page 15 of 23 water right, or without a release by the US of water from the federal enhancement program withdrawal pursuant to RCW 90.40. 3.g. Nothing.herein shall be construed to impair a senior water right or to authorize impairment of a senior water right. 4. The City owns certain shares in the Broadgauge, Fruitvale- Schanno, New Schanno, Old Union and RS&C ditch companies, Yakima Tieton Irrigation District, Naches- Cowiche Canal Company , and Yakima Valley Canal Company ("Ditch Companies"). As to Ditch Company shares owned by the City, the City agrees not to return the shares to the respective Ditch Company' for• new uses and not to transfer shares'to athird party for consumptive use outside of the City service area. Nothing in this Agreement, however, limits the City's right to seek to transfer water rights relating to Ditch Company shares owned by the City to the City's municipal water system for use within its service area. Nothing in this Agreement limits the City's right to acquire Ditch Company shares owned by other parties and to seek to transfer the underlying water rights t� the City municipal water system for use within its service area. The City agrees that any such transfers it may propose are subject to the process set out in RCW 90.03.380. 5. Should the US apply to Ecology for administrative recognition of fish, wildlife or recreation as additional purposes of use for project water"with a 1905 priority date to be administered in accordance with the legal obligations and commitments of the US, the City will support such application(s) and Ecology will give expedited consideration to such application(s) and process them without requiring or claiming any waiver of federal sovereign immunity. The administrative recognition by Ecology of such additional purposes of use shall riot be interpreted City of Yakima Water Rights Settlement Agreement Page 16of23 to prejudice the obligation of the US to deliver water to the City nor the interests of the City in the rights described in Paragraphs 1 and 2, above. 6. The US, the City, and Ecology waive any and all claims against each other -- including breach of trust, attorneys fees or costs -- that arise directly and unequivocally from the negotiation and execution of this Agreement and from the terms and provisions herein for the determination of the surface water rights ofthe City. Nothing herein shall act to limit any Yakama Nation water right or right to the delivery of water, except to the extent that the Yakama Nation's right to the delivery of its share of proratable irrigation water from TWSA is limited in any given water -short year as a direct 'result of the City receiving its share of TWSA water under the terms of this Agreement as TWSA is defined in the 1945 Consent Decree. This Agreement shall not preclude any of the Parties from exercising anyremedy available in the event of a breach'under this Agreement or of a determination that this Agreement is void and unenforceable. Nothing herein shall- act to limit or diminish the trust responsibility owed by the US to the Yakama Nation including the duty to protect the Treaty rights of the Yakama Nation. Except as directly and unequivocally provided for herein, nothing in this Agreement shall act to waive claims for violations of state or federal law, or expand or limit the regulatory authority or property interest of any entity under applicable federal, tribal, or state law. Nothing herein shall act to waive any claims surrounding or concerning water management in the Yakima Basin as discussed 'in Paragraph 3, above. 7. This Agreement shall go into effect upon execution by the Parties. If for any reason within the Acquavella adjudication the quantification of water rights for the City as City of Yakima Water Rights Settlement Agreement Page 17 of 23 finally determined by the Acquavella Court differs from Paragraphs 1 and 2, above, each Party retains the right to revoke or rescind this Agreement. 8. This Agreement constitutes the entire Agreement among the Parties with respect to the subject matter of this Agreement. It does not invalidate any prior agreements among or between the Parties except as expressly specified herein. No amendment, modification or waiver of any of the provisions of this Agreement, or subsequent agreements, which the Parties have agreed to or negotiated concerning this Agreement, shall go into effect unless set forth in a separate written instrument signed hereafter by the Parties to be bound thereby. 9. Nothing in this Agreement is intended to create a cause of action nor other rights for any third party not a signatory to this Agreement, nor would any such party be intended to be a third party beneficiary of this Agreement. Nothing in this Agreement waives the sovereign immunity held by any Party to this Agreement. 10. This Agreement has been prepared jointly by the Parties following negotiations among them. All parties were represented by legal counsel of their choosing. It shall be construed according to its terms and not for or against any of the Parties. 11. Nothing in this Agreement shall be deemed to be inconsistent with the requirements of applicable federal, state, tribal law and/or treaties. Nothing in this Agreement .I. shall be deemed to waive, abrogate,' diminish, define or interpret the Treaty rights of the Yakama Nation. The Parties do not construe this Agreement to waive, abrogate, diminish, define or interpret the Treaty rights of the Yakama Nation. The US reserves the right to appeal or seek reconsideration of a Report of the Court that it believes to be inconsistent with this Paragraph. City of Yakima Water Rights Settlement Agreement Page 18 of 23 12.a. This is a contractual settlement agreement binding on the Parties and enforceable as may be appropriate in a court of competent jurisdiction, under appropriate principles of state and/or federal law. Only signatory parties have the right to seek enforcement of this Agreement. 12.b. This Agreement will be implemented by the US, at least in part, pursuant to, and in the course of implementing, YRBWEP and the Reclamation Act of 1902 and acts amendatory thereof and supplementary thereto, and through the operation of the Yakima Project pursuant to applicable federal laws and treaties. 12.c. Upon alleged breach of this Agreement by any Party, or other disputes arising hereunder, representatives of the State of Washington, the US, and the City shall meet and confer in good faith to resolve their differences. In the event of any such alleged breach or other dispute, the Parties will meet and seek to reach a mutually agreeable modification. The Parties may employ a mutually agreed upon mediator or other suitable facilitator if they believe this may help resolve their dispute. 12.d. If, after a reasonable period of time, the Parties are unable to resolve a dispute by the process outlined above, any of the Parties may seek appropriate relief. The Parties agree to seek declaratory relief first where they reasonably believe that declaratory relief will adequately resolve the conflict. Under appropriate circumstances, other relief, including extraordinary relief, e.g., injunction, mandamus, replevin, restitution, etc., may be awarded against any of the Parties in breach of this Agreement. Breach of this Agreement is a' mixed question of fact and law that must be determined by a court of competent jurisdiction. 12.e. All Parties shall be given timely notice of any action to enforce this Agreement. The Parties agree not to object to (i) intervention or (ii) a request for removal to federal court by City of Yakima Water Rights Settlement Agreement Page 19 of 23 any of the Parties. The City agrees to venue in either State court or Federal District Court for the Eastern District of Washington. If -an effort by a Party to gain judicial relief is unsuccessful due to sovereign immunity, the Parties shall not oppose an action by the City to revoke or rescind this Agreement. 12.f. Failure to seek relief in one instance of breach' shall not waive the right to seek relief for a later breach. 13. For purposes of determining proration in any water short year, the parties agree that the City's Reclamation contract water right described in Paragraph 2, above, shall be prorated based on 6,000 acre-feet subject to and consistent with the terms set forth in the Reclamation Contract No. 14-06-W53, dated December 12, 1952, as amended on December 10, 1965, between the City and the Bureau of Reclamation, except that actual deliveries shall not exceed the maximum annual quantities stated in Paragraph 2, above. The Parties agree to this interpretation of the relationship of the *City's water rights for purposes of compromising and settling differences among the Parties as to the water rights forthe City. 14. The Parties agree that this Agreement shall not be presented for approval to the Acquavella Court because some of the provisions of the Agreement may be beyond the interest or jurisdiction of the Acquavella Court in the adjudication. For the Court's information, however, the Parties agree to provide a copy of the Agreement to the Court separately from the Stipulation. This Agreement is not intended to bind or affect any non -signatory party, and the failure of a non -signatory party to object to any provision of this Agreement cannot be viewed as waiving, affecting or prejudicing any non -signatory party's rights, factual arguments, legal arguments, or legal positions. City of Yakima Water Rights Settlement Agreement Page 20 of 23 15. This Agreement is the resultof negotiations that occurred over the course of more than a year, which negotiations involved written and oral communications by, between, and among the Parties, their representatives, their attorneys, a mediator, and others. The negotiations that preceded this Agreement at times considered arrangements that were at variance with the provisions of this Agreement. All preceding and contemporaneous oral and written statements, understandings, representations, warranties, and promises by, between, and among the parties, or any of them, whether consistent or inconsistent herewith, are agreed to be of no force or effect for any purpose whatsoever unless expressly and explicitly stated in this Agreement. This Agreement represents the complete and final agreement of the Parties; is intended as the complete and exclusive statement of all Parties' group and individual intent, and supersedes all prior and contemporaneous consistent and inconsistent statements, representations, warranties, understandings, negotiations,and agreements among all of the Parties hereto or between any of the Parties hereto that relates to the subject matter hereof, made during the course of these negotiations. This Agreement may not be supplemented, modified or amended by evidence, either oral or written, of any such matters or by course of dealing, but only by the written agreement of the Parties executed with the same formality of this Agreement. The Parties hereto hereby stipulate that each and every provision contained in this Agreement was expressly bargained for and that the plain meaning of said provisions memorializes the intent of the Parties. 16. This Agreement may be signed in counterparts: Each signed counterpart shall be deemed an original, and all counterparts together shall constitute one and the same agreement. 07/31/02 WED 14:15 FAX 21002 of Yakima Water Rights Settlement reement age 21 of 23 IN WITNESS WHEREOF, each Party has caused this Agreement to be signed by its duly authorized officer or representative as of the date set forth below its signature. CITY OF YAKIMA: Date: JL( I b'i a 0 Li Richard A. Zais, Jr., City Manager Date: BOO,_ STATE OP WASHINGTON DEPARTMENT OF ECOLOGY: Tom Fitzsimmons, Director Date UNITED STATES OP AMERICA: Charles R. Shockey, Attorney, United States Department of Justice Date: < 5739100025/AWG/AWGA20Y1.tl06 07/31/02 WED 14:15 FAX 2) 004 City of Yakima Water Rights Settlement Agreement Page 21 of 23 IN WITNESS WHEREOF, each Party has caused this Agreement to be signed by its duly authorized officer or representative as of the date set forth below its signature. CITY OF YAKIMA: Mary Place, Mayor Date: Richard A. Zais, Jr., City Manager Date: STATE OF WAS INGTON DEPARTMENT OF ECOLOGY: om Fit :1 mons, Director Date 7-3a -02, UNITED STATES OF AMERICA: Charles R. Shockey, Attorney, United States Department of Justice Date: Kl25778100025(AWG,AWG A20Y1,doc 07/31/02 WED 14:15 FAX City of Yakima W'Ater,Rlghts Settlement Agreement Page 21 of 23 IN WITNESS WHEREOF, each Party has caused this Agreement to be signed by its duly authorized officer or representative as of the date set forth below its signature. CITY OF YAKIMA: Mary Place, Mayor Date: Richard A. Zais, Jr., City Manager Date: STATE OF WASHINGTON DEPARTMENT OF ECOLOGY: Tom Fitzsimmons, Director Date UNITED STATES OF AMERICA: ® /4444. Charles R. Shockey, 7 orney, United States Department of Justice Date: %' 14, 479. 11I25739100025/AWO/AWO A20Y1 doc 2003 Exhibit B City of Yakima 1/4 % Section Legal Description An asterisk (*) denotes a legal subdivision that is only partially within the City's place of use. The Service Area Map (Exhibit A) is controlling as to place of use. T. 12 N. R. 18 E.W.M. Section 1 * Gov Lot 4(from * NW 1/4 NW 1/4), * SW 1/4 NW 1/4 Section 2 * Gov Lot 1(from * NE 1/4 NE 1/4), * SW 1/4 NW 1/4 , * SE 1/4 NW 1/4 , * SW 1/4 NE 1/4, * SE 1/4 NE 1/4, Gov Lot 4 (from NW 1/4 NW 1/4), Gov Lot 3 (from NE 1/4 NW 1/4), Gov Lot 2 (from NW '/4 NE 1/4), Section 3 * Gov Lot 2 (from * NW 1/4 NE 1/4), * SW 1/4 NE 1/4, * SE '/a NE 1/4, and Gov Lot 1(from NE 1/4 NE 1/4) T. 13 N. R.18E.W.M. Section 4 * SW 1/4 SW 1/4 Section 5 * Gov Lot 2 (from * NW 1/4 NE 1/4), * SW 1/4 NE 1/4, * NE 1/4 SE 1/4, * SW %SE'/4,and * SE'/4SE'/4 Section9 *SW'/4NE1/4,*. NW. 1/4SE1/4,*.NE1/4SE1/4,*SW%4SE1/4, and SE1/4 SE 1/4 Section 10 *NW1/4SW'/4,*SE1 SE 1/4, * SW 1/4 SE 1/4, * SE 1/4 SW 1/4, and * SW 1/4 SW 1/4 Section 11 *NE%SE%,*SE%SE'/4,*SW1/4SE1/4,*SE%SW1/4,and *SW 1/4 SW 1/4 .. Section 12 *NW1/4 SW 1/4, * NE WSW 1/4, * NW % SE 1/4, * NE 1/4 SE 1/4, and S1/2 S1/2 Section 13 All Section 14 All Section 15 All Sectionl6 *NW1/4NE1/4,*SE,'/4NE1/4,*SW%4NE1/4,*NW1/4SE1/4,*SW1/4 SW1/4,*'SE1/4SW'/4,*SW'/4 SE1/4,NE1/4NE1/4,and E'/2SE'/4 Section2l *NW'/4NW1/4,*NE1/4NW1/4, *NE 1/4NE1/4;.*SW1/4NW1/4,*SE1/4 NW1/4,*SW'/4NE1/4, and* SE 1/4 NE I/4 Section22 *NW1/4NW'/4,*SW1/4 NW 1/4, * NW 1/4 SW 1/4, *NE 1/4SW1/4,*SW 1/4 SW'/4,E%2NW 1/4,E%2,and SE1/4 SW 1/4 Section 23 All Section 24 All Section 25 All Section 26 All Section27 *NW1/4NW'/4,*SW1/4 NW 1/4, *NW '/4SW%,*NW'/4SE1/4,*SW 1/4 SW 1/4, * SW 1/4 SE 1/4, E1/2 NW 1/4, NE 1/4, and E1/2 SE 1/4 Section 34 * NW 1/4 NE 1/4, * SW 1/4 NE 1/4, E1/2 NE 1/4, and E'/2 SE 1/4 Section 35 All Section36 *NW1/4SW1/4,*NE'/4SW1/4,*NW1/4SE1/4, *SW 1/4SW1/4, *SE 1/4 SW 1/4, N1/2 T. 13 N. R. 19 E.W.M. Section 7 * NW'/ SW 1/4, * SW 'A SE 1/4, * SE 1/4 SW 1/4, and SW 1/4 SW 1/4 Section 17 * SW '/4 SW 1/4 Section 18 *:NW 1/4 NE 1/4, * SE 1/4 NE 1/4, * NE 1/4 SE 'A, NW 1/4, SW 1/4 NE 1/4, SW 1/4, NW °1/4 SE 1/4, and S'/2 SE '/4, Section 19 All Section 20 * NE 1/4 NW 1/4, *NW 1/4 NE 1/4, *NE '/ NE 'A, * SE 1/4 NE 1/4, *NE '/ SE '/4,*SE'/4SE'/4,S'/2NW'/4, SW `/4 NE'/4,SW'/4, and W'Y2SE'/4, Section 28 * SW '/4 NW 1/4, * NE'/4 SW 1/4, * .SW '/4 SW 1/4, * SE 'A SW 1/4, and NW 1/4 SW 1/4 Section 29 All of Section 29 except a portion of * NE 1/4 NE '/ (NE 1/4 NE '/4 partially covered) Section 30 All Section 31 * NW Y4 SW 1/4, * NE'/ SW 1/4, * NW 1/4 SE IA, * SW 'A SE I/4, * NW 1/4 SW `/4, N'/2, and E'/2 SE 'A, Section 32 * NE'/4 NE'/4, * SW i/4 NW `/4, * SE 1/4 NW Vi, * SE 1/4 NE 1/4, * NE 1/4 SW 1/4, * SE 'ASW 1/4, and NW V4 SW '/4, Section 33 * NW '/4 NW 1/4, and * SW '/4 NW '/4 T. 14 N. R. 18 E.W.M. Section 29 * NW 'A SW 'A, and * SW `/4 SW'/4, Section 30 * Gov Lot 3 (from *.NW.'/4 SW 1/4); * NE 1/4 SW 1/4, and * SE 1/4 SW 1/4 Section 31 * NW '/4 NE 1/4, *, NE 1/4 NE :'/4, * SW '/4 NE `/4, * SE '/4 NE '/4, and * NE '/4 SE %4, Section 32 * NW 1/4 NW `/4, * SW 1/4 NW 1/4, and * NW 'A SW 1/4 City of Yakima 129N2"St Yakima WA 98901 WASHINGTON NATE DEPARTMENT OF ECOLOGY • • STATE OF WASHINGTON SUPERSEDING CERTIFICATE OF WATER RIGHT Supersedes Certificate No: S4 -01141C issued January 6, 1975. This docuiuent is issued concurrently with Surface Water Permit No. S4-01141P(B). Document Title: Superseding Certificate of Water Right Agency: Department of Ecology Central Regional Office 15 W. Yakima Avenue, Suite 200 Yakima, WA 98902 Reference Number: PRIORITY DATE January 29, 1951 APPLICATION NUMBER 10095 Applicant: City of Yakima 129 N 2°d St Yakima WA 98901 PERMIT NUMBER 9116 CERTIFICATE NUMBER S4-01141C(A) This is to certify that the herein named applicant has made proof to the satisfaction of the Depar ment of Ecology of a right to the use of the public waters of the State of Washington as herein defined, and under and specifically subject to the provisions contained in the Permit issued by the Department of Ecology, and that said right to the use of said waters has been perfected in accordance with the laws of the State of Washington, and is hereby confirmed by the Department of Ecology and entered of record as shown, but is limited to an amount actually beneficially used. PUBLIC WATERS TO BE APPROPRIATED SOURCE Naches River TRIBUTARY OF (IF SURFACE WATERS) Yakima River MAX. CUBIC FEET PER SECOND 29 MAX. GALLONS PER MINUTE MAX. ACRE-FEET PER YEAR 4414 QUANTITY/TYPE OF USE/PERIOD OF USE For municipal supply from October 16 to the beginning of Yakima Project storage control, as determined by the US Bureau of Reclamation. LEGAL DESCRIPTION OF LOCATION OF DIVERSION/WITHDRAWAL 1/4 1/4 SW'/4SW'/4 SECTION 13 TOWNSHIP N. 14 RANGE (E. OR W.) W.M. 17 E. W.R.I.A. 38 COUNTY Yakima PARCEL NO.: 17141399999 LEGAL DESCRIPTION OF PROPERTY ON WHICH WATER IS TO BE USED 1/4 1/4 SECTION TOWNSHIP N. RANGE (E. OR W.) W.M. W.RI.A. COUNTY See attached map and legal description. ("0777 T7 ADDITIONAL LEGAL IS ON PAGE 2 ( 4 CONTINUED LEGAL DESCRIPTION FOR LOCATION OF DIVERSION/WITHDRAWAL Naches River Water Treatment Plant diversion, approximately 900 ft N 64° 20' E from the SW corner Section 13 (aka Rowe Hill or Gleed Plant) CONTINUED LEGAL DESCRIPTION FOR PROPERTY ON WHICH WATER IS TO BE USED See attached map and legal description. PROVISIONS All conditions and requirements contained in reports of examination or permits previously issued apply to this certificate unless specifically noted below. Screening of the diversion intake shall be maintained in accordance with applicable law of Department of Fisheries and Wildlife. No dam shall be constructed in connection with this diversion. This right and the portion of the US Bureau of Reclamation Contract No. 14-06-W53 dated December 12, 1952, as amended on December 10, 1965, water right diverted at Naches River Water Treatment Plan have a combined maximum annual quantity of 7826 acre-feet per year. It is intentional that the combined total is less than the sum of the individual maximum annual quantities. The right to use of the water aforesaid hereby confirmed is restricted to the lands or place of use herein described, except as provided in RCW 90.03.380, 90.03.390, and 90.44.100. Given under my hand and the seal cifaii,9ffice at Yakima, Washington, this 12th day of May 2005. • • Ito PDS Offill: ENGIN RING DATA OK ECY 040-1-2 (Rev. 8-97) Attachment: Map & Legal Description Jay J. Manning, Director Department of Ecology By • • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 1 For Meeting of 8/6/02 ITEM TITLE: A resolution authorizing and ratifying actions by the Mayor and the City Manager to execute a City of Yakima Water Rights Settlement Agreement with the United States and the State of Washington Department of Ecology concerning the City's Naches River water rights in Acquavella. SUBMITTED BY: Dueane Calvin, Water/Irrigation Manager Adam Gravley, Preston Gates & Ellis LLP CONTACT PERSON/TELEPHONE: Dueane Calvin, 576-6154 SUMMARY EXPLANATION: To avoid further expense and uncertainty from continued litigation in the Yakima River basin water rights adjudication, Department of Ecology v. Acquavella, the City has participated in mediated settlement negotiations. The City, the US, and the State successfully negotiated a City of Yakima Water Rights Settlement Agreement and accompanying legal papers to seek Court approval of the settlement, including a stipulation regarding the City's water rights, supporting legal memorandum, and supporting declaration of David E. Brown. The Settlement Agreement is attached, and the related legal papers are available upon request. The settling parties are requesting the Court to issue an order confirming the City's water rights as provided in the settlement agreement. Under the settlement, all five of the City's Naches River water rights would be confirmed for municipal use within the City's current water service area. Adequate water quantities are provided to meet expected current and future demand. The quantity of water diverted at Nelson Bridge would be voluntarily reduced after a 10 -year transition period during which a more efficient water delivery system will be developed. The settlement provides other technical terms and conditions to protect the City's municipal water supply and to prevent injury to water rights held by other parties. Resolution X Ordinance Other (Specify) Contract Mail to (name and address): Phone: Funding Source: N/A APPROVED FOR SUBMITTAL:' City Manager STAFF RECOMMENDATION: Adopt the resolution. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION NO R-2002-98 PrestonlGateslEllis LLP EVIORANDUvi TO' Honorable City Council Members Dick Zais, City Manager Adam W Gravley July 31, 2002 Acquavella Settlement Regarding City's Naches River Water Rights FROM DATE. SUBJECT Attached please find a copy of the City of Yakima Water Rights Settlement Agreement with the United States and the State,of.WashingtonDepartment of Ecologyin theNakimaRiver, basin water rights adjudication, Department of Ecology v. Acquavella. The Settlement Agreement concerns the,City's Naches .Riverwater<rights andis:implemented'by-the filingof.a stipulation and supporting legal-memorandumand:declarationNwithzthe,Acquavella.Court:. Because the settlement .requires.the-approvakofthe'Court; ittmay,be=necessary=to submit additional supportive pleadings. As past discussions have highlighted, we believe that, on balance, the benefits of the settlement outweigh the potential risks The essential benefits of the proposed settlement may summarized be as follows. • The proposed settlement provides the City with adequate water quantities to meet current demand and planned future growth. • The proposed settlement provides the City with adequate flexibility to perform its municipal service functions The settlement provides for all of the City's affected water rights to be "municipal" purpose This provides maximum flexibility for future use and protects them from relinquishment (i.e., forfeiture statute for five consecutive years of nonuse) Also, all of the City's affected water rights could be used throughout the City's service area. A LAW FIRM I A LIMITED LIABILITY PARTNERSHIP INCLUDING OTHER LIMITED LIABILITY ENTITIES 701 FIFTH AVFNIIF SIIITF 5000 SFATTI F WA 90104- 7070 TFI (7001 073-7500 FAX (7001 fi73-7077 www nrestnnnafns r•.nm MEMORANDUM July 31, 2002 Page 2 • The proposed settlement provides the City with adequate certainty to make project decisions For example, it would allow the City to move forward with the improvement project for delivery of water diverted at Nelson Bridge, but it retains flexibility as to the type of project. Without a settlement, in contrast, it could be years before a judicial determination of the City's water rights is concluded. Even if the Court issues a report on the City's rights this year, another round of exceptions is likely and appeals could then occur • A significant benefit of the proposed settlement is that, if confirmed by the Court, it would avoid the risks and uncertainties associated with further litigation of the City's water rights These risks and uncertainties range from the substantive outcome to time and expense of further litigation. • Without settlement, the City could end up with less water than in this settlement. • In addition, determination of the City's water rights by the Court could limit the City's flexibility to meet its municipal service functions For example, a Court determination could result in place of use, purpose of use, and point of diversion problems that could require application to Ecology to resolve • If accepted by the Court, the proposed settlement wouldsignificantly reduce the time and cost associated with further litigation. The next stage of expected litigation in superior court (i.e., following the court's report) would be costly, and possible appeals would add significantly to the cost. In the event of Court approval, then settlement also gives rise to obligations for the City including the following. • The City must complete the improvement project for water diverted at Nelson within the 10 year "transition period " The diversion reductions at Nelson begin at the end of the 10 year period regardless of the project status. • The Department of Ecology will reissue a portion of an off-season water right in permit form. The permit will have a 20 year development schedule, which means that the City must put the water to use within the 20 -year period. • The City commits not to return or transfer any its ditch company water for use outside of the City service area. The City will need to implement a process to make use of ditch company water within its service area. K:\25739\00025WWG\AWG M20YG 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF YAKIMA IN THE MATTER OF THE DETERMINATION OF THE RIGHTS TO THE USE OF THE SURFACE WATERS OF THE YAKIMA RIVER DRAINAGE BASIN, IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 90.03, REVISED CODE OF WASHINGTON STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Plaintiff, v. JAMES J. ACQUAVELLA, et al., Defendants. No. 77-2-01484-5 STIPULATION RE: CITY OF YAKIMA CLAIM NO. 2110 The State of Washington Department of Ecology ("Ecology"), the United States ("US"), and the City of Yakima ("City"), after extensive Court -approved facilitated negotiations and mediation, hereby respectfully submit this Stipulation Re: City of Yakima Claim No. 2110 ("Stipulation") to resolve Claim No. 2110. The parties request that the Court include the water rights identified herein in a Conditional Final Order and Final Decree for the City of Yakima as adjudicated water rights Attached is the STIPULATION - 1 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE. (206) 623-7580 FACSIMILE (206) 623-7022 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Declaration of David E. Brown in Support of Stipulation Re: City of Yakima Water Right Claim No. 2110, which the parties request be admitted as Exhibit COY 103. This Stipulation is supported by the contemporaneously -filed Joint Memorandum in Support of Stipulation Re City of Yakima's Water Rights Claim No. 2110. 1. CITY OF YAKIMA WATER RIGHTS. To be decreed in the name of the City of Yakima the following water rights: a. "Old Union" Water Right. i. Quantity (acre-feet) Total quantity applied to beneficial use is 5,585 acre-feet. ii. Diversion Rate (cubic feet per second, "cfs") April 1 through August 31 — 17.73 cfs September 1-30 — 11.82 cfs October 1-15 — 8.87 cfs iii Purpose of Use Municipal supply. iv. Priority Date June 30, 1878. v. Point of Diversion Nelson Bridge, 1,790 feet south and 1,600 east from northwest corner of Section 9, being within the SE '/4 NW '/4 of Section 9, Township 13N, Range 18 EWM. STIPULATION - 2 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vi. Place of Use City service area as of the date of this Stipulation, as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the I/4 I/4 section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use. vii. Period of Use April 1 through October 15. b. "Glaspey" Water Right. 1. Quantity (acre-feet) Total quantity applied to beneficial use is 945 acre-feet. ii. Diversion Rate April 1 through August 31 — 3 cfs September 1-30 — 2 cfs October 1-15 — 1 5 cfs iii. Purpose of Use Municipal supply. iv. Priority Date April 1, 1869. STIPULATION - 3 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v. Point of Diversion Nelson Bridge, 1,790 feet south and 1,600 east from northwest corner of Section 9, being within the SE VI NW '/4 of Section 9, Township 13N, Range 18 EWM. vi. Place of Use City service area as of the date of this Stipulation, as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the '/4 1/4 section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use. vii. Period of Use April 1 through October 15. c. "10 cfs" Water Right. 1. Quantity (acre-feet) Total quantity applied to beneficial use is 7,260 acre-feet. ii. Diversion Rate 10 cfs iii. Purpose of Use Municipal supply. iv. Priority Date June 30, 1902. STIPULATION - 4 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v. Point of Diversion Naches River Water Treatment Plant (also known as the Rowe Hill or Gleed Plant), 900 feet north 64° 20' east of the southwest corner of Section 13, being within the SW 1/4 SW 1/4 of Section 13, Township 14N, Range 17 EWM. vi. Place of Use City service area as of the date of this Stipulation, as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the 1/4 '/4 section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use. vii. Period of Use January 1 through December 31 d. "1951 Off Season " Water Right. i. Quantity (acre-feet) Total quantity applied to beneficial use is 4,414 acre-feet, subject to the combined quantity limitation set forth in Paragraph 2(viii) below. ii. Diversion Rate 29 cfs STIPULATION - 5 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 1 iii. Purpose of Use 2 Municipal supply. iv. Priority Date January 29, 1951. v. Point of Diversion 6, 7 Naches River Water Treatment Plant (also known as the Rowe Hill or Gleed Plant), 900 feet north 64° 20' east of the southwest corner of Section 13, being within the SW 1/4 SW 1/4 of Section 13, Township 14N, Range 17 EWM. vi. Place of Use City service area as of the date of this Stipulation, as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City 16 service area is located within the 1/4 1/4 section legal 17 description attached hereto as Exhibit B and incorporated by 18 reference herein. Exhibit A shall control as to place of use 3 8 9 10 11 12 13 14 19 vii. Period of Use 20 October 16 to the beginning of storage control, as 21 2? determined by the US Bureau of Reclamation 23 2. US/CITY WATER RIGHTS. To be decreed in the name of the United 24 States of America on behalf of the City of Yakima, a Bureau of Reclamation contract 25 water right ("Reclamation contract water right") sufficient to permit diversion for STIPULATION - 6 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206)623-7580 FACSIMILE (206) 623-7022 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 beneficial use of: i. Quantity (acre-feet) Total quantity applied to beneficial use is 5,083, of which a maximum of 3,583 acre-feet may be diverted at the Naches River Water Treatment Plant and a maximum of 1,500 acre-feet may be diverted at Nelson Bridge, subject to the combined quantity limitation set forth in Paragraph 2(viii) below. ii. Diversion Rate 29 cfs at the Naches River Water Treatment Plant diversion point. 6.2 cfs at the Nelson Bridge diversion point. iii Purpose of Use Municipal supply. iv. Priority Date May 10, 1905. v. Points of Diversion Nelson Bridge, 1,790 feet south and 1,600 east from northwest corner of Section 9, being within the SE 1/4 NW '/4 of Section 9, Township 13N, Range 18 EWM, at which a maximum of 1,500 acre-feet may be diverted STIPULATION - 7 Naches River Water Treatment Plant (also known as the Rowe Hill or Gleed Plant), 900 feet north 64° 20' east of the southwest corner PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE. (206) 623-7580 FACSIMILE (206) 623-7022 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of Section 13, being within the SW 1/4 SW 1/4 of Section 13, Township 14N, Range 17 EWM, at which a maximum of 3,583 acre-feet may be diverted. vi. Place of Use City service area as of the date of this Stipulation, as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the 1/4 1/4 section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use vii. Period of Use The beginning of storage control, as determined by the US Bureau of Reclamation, through October 15. viii. Combined Quantity Limitation. The maximum combined quantity that the City may divert in any single calendar year under the 1951 off-season water right described in Paragraph 1.d and the portion of the Reclamation contract water right diverted at Naches River Water Treatment Plant is 7,826 acre-feet. The maximum combined quantity provision in the foregoing sentence does not not apply to the portion of the Warren Act contract water right diverted at Nelson Bridge. STIPULATION - 8 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3. SCOPE OF STIPULATION This Stipulation applies only to City of Yakima Claim No. 2110, and it is not intended to address or resolve any other water right claims or issues. This Stipulation, or other writings evidencing the agreement of the parties, is not intended to be an admission as to any legal or factual issue and is not intended to waive or concede any legal arguments in this case or any other case. Accordingly, the parties hereto withdraw their exceptions to Claim No. 2110. This Stipulation does not address, resolve, or waive the arguments of any Party concerning 1) City of Yakima Claim No. 0675 regarding the Yakima Airport water rights in the Ahtanum subbasin, or 2) the City's "Oak Flats" water right certificate No. 938-D that is the subject of Yakima County Water Conservancy Board No 11-2000 (May 31, 2000), Ecology modification and approval (August 14, 2000), and the City's letter to the Court dated March 13, 2002. 4. WRITTEN AGREEMENT In addition to this Stipulation, the parties hereto have entered a full written agreement incorporating the terms in Paragraphs 1 and 2, above, and additional provisions between the parties including voluntary diversion reductions. Because some of the provisions of the agreement may be beyond the interest or jurisdiction of this Court, the parties are not asking the Court to approve the agreement. A copy of the agreement is separately provided only for the Court's information. The agreement itself is not intended to affect any non -signatory party. STIPULATION - 9 PRESTON GATES & ELLIS LLI' 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 5. REVOCATION OF STIPULATION If for any reason the Court rejects, modifies, amends, or alters this Stipulation or 3 fails to adopt a Conditional Final Order with these terms on the water rights for the City, 4 the individual parties retain the right to revoke or rescind this Stipulation, provided that 5 any such revocation or recission shall not affect in any way the validity of the concurrent 6 agreement. In the event of a revocation or recission, this Stipulation and any issues 8 contained herein shall not be an admission as to any legal or factual issue nor waive any 9 argument of the Parties, and no Party shall argue that it constitutes any such admission or 10 waiver. 11 6. REQUEST FOR EXPEDITED CFO FOR THE CITY WATER 12 RIGHTS 13 14 The parties respectfully request that the Court expedite the issuance of a 15 Conditional Final Order for the City's water rights in Claim No 2110 consistent with the 16 elements outlined in Paragraphs 1 and 2 of this Stipulation 17 7. REQUEST FOR CFO AS FINAL ORDER FOR PURPOSES OF 18 APPEAL 19 The parties respectfully request that the Court issue the Conditional Final Order 20 for the City's water rights in Claim No. 2110 as a final order for appeal pursuant to Civil 21 22 Rule 54(b) and Rule of Appellate Procedure 2.2(d) 23 The parties respectfully request that the Court expressly determine, in the 24 Conditional Final Order, that there is no just reason for delay of appeal and make 25 supporting specific findings, including the following: STIPULATION - 10 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE. WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 2 3 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "The claims adjudicated by this Conditional Final Order are separate and discrete claims apart from the remaining multiple claims in this case. The claims adjudicated by this Conditional Final Order are asserted by one of the multiple parties to this proceeding and are less than all of the multiple claims of other major claimants and other parties. Numerous claims remain unadjudicated in the proceeding, and any appeal from this Conditional Final Order is unlikely to delay trial of unadjudicated matters. The claims that would be reviewed on any appeal from this Conditional Final Order are not likely to be rendered moot by the continuing proceedings before this court. As a practical matter, an immediate appeal of this Conditional Final Order will likely prevent a waste of judicial resources and prevent a waste of resources for the parties to this case. Absent separate appeal of this Conditional Final Order, the parties and the Court will be involved in a single appeal of numerous, separate, discrete and diverse claims from separate .hearings. A combined appeal of all such claims at the end of the adjudication will be unwieldy and urunanageable and result in substantial waste of judicial resources and the resources of the parties. As stated in the STIPULATION - 1 1 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623.7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Declaration of David E. Brown in Support of Stipulation Re: City of Yakima Water Right Claim No. 2110, the City of Yakima intends to undertake a water system improvement project in reliance on this Conditional Final Order. Accordingly. the Court finds that the City would be prejudiced by any delay." 8. CONCLUSION The opinion of the parties is that this Stipulation for the City of Yakima will save the parties and the Court significant time and expenses that would be necessary to litigate the complex issues regarding municipal water rights and other related water issues for City of Yakima. It also promotes judicial economy and will likely shorten the Acquavella 1)tiaation DATED this 3 / day of July, 2002. STIPULATED AND AGREED TO. ADAM W. GRA EY. BA #20343 Preston Gates & Ellis LLP Attorneys for City of Yakima ALAN M REICHMAN, WSBA 423874 Assistant Attorney General Attorneys for Plaintiff State of Washington Department of Ecology K /25739/00025/AWG/AWG_P2OXZ DOC STIPULATION - 12 CHARLES R. SHOCK iT, D C Bar 4 914879 U. S. Department of Ju ice Environmental & Natural Resources Division Attorney for United States of America PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE. WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Declaration of David E. Brown in Support of Stipulation Re: City of Yakima Water Right Claim No. 2110, the City of Yakima intends to undertake a water system improvement project in reliance on this Conditional Final Order. Accordingly, the Court finds that the City would be prejudiced by any delay." 8. CONCLUSION The opinion of the parties is that this Stipulation for the City of Yakima will save the parties and the Court significant time and expenses that would be necessary to litigate the complex issues regarding municipal water rights and other related water issues for City of Yakima. It also promotes judicial economy and will likely shorten the Acquavella litigation. DATED this _ day of July, 2002. STIPULATED AND AGREED TO: ADAM W. GRAVLEY, WSBA #20343 Preston Gates & Ellis LLP Attorneys for City of Yakima j ALAN M. REICHMAN, WSBA #23874 Assistant Attorney General Attorneys for Plaintiff State of Washington Department of Ecology K /25739/00025/AWG/AWG_P2OXZ DOC STIPULATION - 12 CHARLES R. SHOCKEY, D.0 Bar # 914879 U. S. Department of Justice Environmental & Natural Resources Division Attorney for United States of America PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 I 1 , • ....„ . z `i z ,, -........, I 3 ! i 30 i 1 . . . City of Yakirpa Placp of 1 2.,' 2 , d ate E ; i: . se Page 1 of 5 28 I &CLAN NAF1.11 11111 ..... ! 1 I i ME I ! 4Pc 1 .4 1 I Place of Use 4.... 41 44.• 1. No 4.4 I . . 1 • ..,4. t ; To . •. i e ......• E • r 1 ."--- 51, CMEIGHT1 SAO 100,0 • mma .. i , z ..:! .. I , : BLAME 11.0 Om 1.••••••• my 31 1 Tow9s' I I .' 1 I I 1, i i ffi1i Ii, N32 hip 14N Rqnge 18 33 , c.a... 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' l'. qtty of Yakima PlaCe-of Use P , ; • ; I• 'o f 5 28, w MItCHFICL I ' ; ANTAINIUM NO 2 Townshi 12N Range 18,E.W.M. • I ! •7.- ,,:.. 1; I i If ;': . ,__;.! !. ,x .. :. ! 1 : I 1 Exhibit B City of Yakima'/4 '/a Section Legal Description An asterisk (*) denotes a legal subdivision that is only partially within the City's place of use. The Service Area Map (Exhibit A) is controlling as to place of use. T. 12 N. R. 18 E.W.M. Section 1 * Gov Lot 4(from * NW 1/4 NW 1/4), * SW 1/4 NW 1/2 Section 2 * Gov Lot 1(from * NE '/4 NE 1/4), * SW 1/4 NW 1/4 , * SE '/4 NW 1/4 * SW '/4 NE 1/4, * SE '/4 NE '/4 , Gov Lot 4 (from NW '/4 NW '/4), Gov Lot 3 (from NE 1/4 NW '/4), Gov Lot 2 (from NW '/4 NE 1/2). Section 3 * Gov Lot 2 (from * NW '/4 NE '/4), * SW '/4 NE 1/2, * SE '/4 NE 1/4, and Gov Lot 1(from NE '/4 NE 1/4) T. 13 N. R. 18 E.W.M. Section 4 * SW 1/4 SW 1/4 Section 5 * Gov Lot 2 (from * NW '/4 NE 1/4), * SW 1/4 NE '/4, * NE 1/4 SE '/4, * SW 1/4 SE 1/4 , and * SE 1/2 SE 1/4 Section 9 * SW 1/4 NE 1/2, * NW 1/4 SE 1/4, * NE 1/2 SE 1/4, * SW 1/4 SE 1/2, and SE'/4SE'/4 Section 10 * NW 1/4 SW 1/2, * SE 1/4 SE 1/4, * SW 1/4 SE 1/4, * SE 1/4 SW 1/2, and * SW 1/4 SW 1/2 Section 11 * NE 1/4 SE 1/4, * SE 1/2 SE 1/2, * SW 1/4 SE 1/4, * SE 1/4 SW 1/4, and * SW 1/4 SW 1/4 Section 12 * NW 1/4 SW 1/2, * NE 1/4 SW 1/2, * NW 1/2 SE 1/4, * NE 1/2 SE 1/4, and S'/2 S'/2 Section 13 All Section 14 All Section 15 All Section 16 * NW 1/4 NE 1/4 * SE 1/4 NE 1/4 * SW 1/4 NE 1/4 * NW 1/4 SE 1/2 * SW 1/2 SW 1/4, * SE 1/4 SW 1/4, * SW 1/2 SE 1/4, NE 1/2 NE 1/4, and E1/2 SE '/4 Section 21 * NW '/4NW 1/4, * NE 1/4 NW 1/4, *NE 1/4 NE 1/4, * SW '/4NW 1/4, * SE'/4NW'/4, * SW 1/2 NE 1/4, and * SE'/ NE 1/4 Section22 *NW'/4NW'/4,*SW'/4NW'/4,*NW'/4 SW'/4,*NE'/4SW'/4, * S W 1/4 SW 1/4, E'/2 NW 1/4, E'/2, and SE 1/4 SW 1/4 Section 23 All Section 24 All Section 25 All Section 26 All Section27 *NW'/4NW'/4,* SW 1/4 NW'/4, *NW '/4SW'/4,* NW'/4SE'/4, * SW 1/2 SW 1/4, * SW 1/4 SE 1/2, E1/2 NW 1/4, NE 1/4, and E'/2 SE 1/2 Section 34 * NW 1/4 NE 1/2, * SW 1/4 NE 1/4, E'/2 NE 1/2, and E'/2 SE 1/4 Section 35 All Section 36 * NW 1/4 SW 1/4, * NE 1/4 SW 1/2, * NW 1/4 SE 1/4, *SW 1/4 SW 1/4, *SE 1/4 SW 1/4, N1/2 T. 13 N. R. 19 E.W.M. Section 7 * NW IA SW 1/2, * SW 1/4 SE 1/4, * SE 1/4 SW 1/4, and SW `/4 SW'/4 Section 17 * SW '/4 SW 1/4 Section 18 * NW '/4 NE 1/4, * SE 1/2 NE 1/4, * NE 1/4 SE 1/4, NW '/4, SW '/4 NE '/4, SW 1/4, NW 1/4 SE '/4, and S'/z SE 1/4, Section 19 All Section 20 * NE 1/4 NW 1/4, *NW 1/4 NE 1/4, *NE 1/4 NE '/4, * SE 1/4 NE 1/2, *NE 1/2 SE 1/4 , * SE 1/4 SE 1/4, S'/2 NW 1/2, SW 1/4 NE 1/2, SW 1/4, and W'/z SE 1/4, Section 28 * SW 1/4 NW 1/4, * NE 1/4 SW 1/2, * SW 1/4 SW 1/2, * SE 1/2 SW 1/2, and NW 1/4 SW 1/4 Section 29 All of Section 29 except a portion of * NE 1/2 NE 1/4 (NE 1/4 NE 1/4 partially covered) Section 30 All Section31 *NW 1/4 SW'/4*NE'/4SW'/4 *NW'/4 SE 1/4*SW'/4SE'/4 * NW 1/4 SW 1/4, N'/z, and E'/z SE 1/4, Section 32 * NE 1/4 NE 1/4 * SW 1/2 NW 1/4 * SE 1/4 NW 1/4 * SE 1/4 NE 1/4 * NE 1/4 SW 1/4, * SE 1/4 SW' /4, and NW'/4SW'/4, Section 33 * NW 1/4 NW 1/4, and * SW 1/4 NW 1/2 T. 14 N. R. 18 E.W.M. Section 29 * NW 1/4 SW 1/4, and * SW '/4 SW 1/4, Section 30 * Gov Lot 3 (from * NW 1/4 SW 1/4), * NE 1/4 SW 1/4, and * SE 1/2 SW '/4 Section 31 * NW 1/4 NE 1/4, * NE 1/4 NE 1/4, * SW 1/2 NE 1/4, * SE 1/4 NE 1/4, and * NE 1/2 SE 1/4, Section 32 * NW 1/4 NW 1/4, * SW 1/4 NW 1/4, and * NW 1/4 SW 1/4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF YAKIMA IN THE MATTER OF THE DETERMINATION OF THE RIGHTS TO THE USE OF THE SURFACE WATERS OF THE YAKIMA RIVER DRAINAGE BASIN, IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 90.03, REVISED CODE OF WASHINGTON STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Plaintiff, v. JAMES J. ACQUAVELLA, et al., Defendants. No. 77-2-01484-5 JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM CLAIM NO. 2110 (CITY OF YAKIMA) I. INTRODUCTION The undersigned parties submit this joint memorandum in support of the Stipulation re: City of Yakima, Claim No. 2110 ("Stipulation"). The memorandum provides legal and evidentiary support for confirmation of the City's water rights according to the terms set out in the Stipulation. The memorandum provides detailed analysis only for those elements of the City's water rights that differ from the preliminary Report of the Court on the City's claims (Vol. 22A) ("Report"). A. Sound Public Policy and Settled Case Law Support Settlement The policy and the law in Washington, as elsewhere, favor amicable settlement of claims. See Seattle v. Blume 134 Wn.2d 243, 257 (1997) ("express public policy of this state strongly .. JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 1 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE: (206) 623-7580 FACSIMILE. (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 encourages settlement"); Seafirst Ctr. Ltd. Partnership v. Erickson, 127 Wash. 2d 355, 365, 898 P.2d 299 (1995) (the law "`strongly favors' settlement (quoting Seafirst Ctr. Ltd. Partnership v. Kargianis. Austin & Erickson, 73 Wash. App. 471, 476, 866 P.2d 60 (1994)); Kirk v. Moe, 114 Wn. 2d 550, 554-55, 789 P.2d 84 (1990) ("settlement of a claimant's entire claim should be strongly encouraged"); see also Carson v. American Brands, 450 U.S. 79, 88 (1981) (recognizing that parties to litigation have a "right to compromise their dispute on mutually agreeable terms" which may include incorporation of terms into a judicial decree); United States v. Cannons Eng'g, 899 F.2d 79, 84 (1st Cir. 1990) ("[I]t is the policy of the law to encourage settlements."). The Cannons Court observed that the general policy favoring settlements "has particular force where ... a governmental actor committed to the protection of the public interest has pulled the laboring oar in constructing the proposed settlement." 899 F.2d at 84. In the present case, three governmental bodies have worked together to craft a settlement to eliminate the need for further litigation which would be extremely costly for all the parties involved and expend considerable judicial resources. B. Standard of Review for Settlements This Court has been clear that it will not confirm a water rights settlement that fails to conform with applicable law. The standard of review for settlements is generally whether "the court decides that it is fair, reasonable and equitable and does not violate the law or public policy." Sierra Club v. Electronic Controls Design, 909 F.2d 1350, 1355 (9th Cir. 1990). Courts do not consider whether the settlement terms are ideal or those they would have fashioned in a trial on the merits. Instead, courts consider "whether the proposed decree is fair, reasonable and faithful to the objectives of the governing statute." Cannons, 899 F.2d at 84. This standard of review has been recognized by water law scholars as applying to adjudications of water rights. As Professor Dan Tarlock has commented, "[a]n adjudication can be greatly facilitated by settlements among the parties. ... [b]asically, the court must determine if the settlement was reached in good faith, all parties received due process, the terms are fair to the JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 2 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE. (206) 623.7580 FACSIMILE (206) 623.7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 settling parties and do not prejudice other claimants." A. Dan Tarlock, Adjudication of Water Rights, in Law of Water Rights and Resources 1998, § 7.24, 7-38 (Environmental Law Series, No. 10, 1998). As a result, the review of a settlement agreement by this Court is not to "be turned into a trial or rehearsal for trial on the merits." The Court does not need "to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements." Officers for Justice v. Civil Service Comm., 688 F.2d 615, 624-25 (9th Cir. 1982); Pickett v. Holland America Line-Westours. Inc., 145 Wn.2d 178, 190 (2001) (quoting Officers for Justice). C. Settlements Have No Precedential Value Because a court does not scrutinize a settlement as it would an issue on the merits, its decision to approve a settlement does not establish legal precedent. See, e.g. Kelly ex rel. Michigan DNRC v. FERC, 96 F.3d 1482 (D.C. Cir. 1996); Office of Special Counsel v. FERC, 783 F.2d 206, 235 (D.C. Cir. 1986). Settlement agreements have no stare decisis effect on future litigation. Orange County v. Air California, 799 F.2d 535 (9th Cir. 1986). This is particularly true where, as here, the settlement agreement provides benefits to many non -settling parties and the general public that a decision on the merits could not. The Stipulation is fair, reasonable and equitable and does not violate the law or public policy. The results achieved here may or may not match exactly a decision on the merits, but it is the fundamental purpose of this settlement to avoid the time, expense and uncertainty of pursuing such a decision. And without a decision on the merits, there can be no precedent on the merits. Thus, one can neither complain today that the Stipulation would not precisely match a decision on the merits, nor complain in the future that a decision on the merits on a different matter in this adjudication or another proceeding does not match the terms of this Stipulation. Approval of the Stipulation can JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 3 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE. (206) 623-7580 FACSIMILE. (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 neither be used by those seeking to gain a water right nor those seeking to contest one. See Kelly, 96 F.3d at 1490. We recognize, however, that it is possible that another party may complain that the Stipulation will result in material injury to their rights. If that is the case, such a party must be given the opportunity prove that this Stipulation does not meet the standard described above. Failing that burden, this Court should approve the Stipulation. II. INDIVIDUAL WATER RIGHTS A. "10 CFS" Water Right Quantity (Acre Feet): Evidence admitted at the 1998 exceptions hearing demonstrates that the City has historically diverted 7,260 AF under its 10 cfs year-round right. This is demonstrated in summary form in COY 100 (annual quantity summary table), and in a more detailed form in COY 87/101 (Naches River Water Treatment Plant daily diversion table). The Court should therefore confirm the annual quantity for the City's 10 cfs right as set forth in the Stipulation — 7,260 AF. Diversion Rate. 10 cfs (same as Report). Purpose of Use. Municipal supply (same as Report). Priority Date: June 30, 1902 (same as Report). Point of Diversion: Naches River Water Treatment Plant (same as Report — see Stipulation for legal description). Place of Use The Report requested the City to provide the current place of use for both the 10 cfs right and for the 1951 off-season right. Report at 169. As the Report notes, the City's RCW 90.14 claim for the 10 cfs right states "City of Yakima" as the place of use.) Report at 19; COY 27. The Report concludes that the place of use description is broad enough to include areas served that are outside of the "greater City of Yakima." Report at 19. There was, however, some uncertainty at trial regarding areas actually served outside of City limits. Accordingly, the Court declined to set the ) Similarly, the 1902 Notice of Appropriation for this right identifies the place of use as "the City of North Yakima and vicinity." COY 28. JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 4 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104.7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 place of use until the City provided an updated accurate description of service to these outside areas. Report at 19. Attached to the Stipulation is the Declaration of David E. Brown in Support of Stipulation (identified as COY 103) demonstrating the City's current service area. The Brown Declaration includes a Service Area Map (Ex. A to Brown Declaration) and a table of the 1/4 1/4 sections in which the City provides service (Ex. B to Brown Declaration). The undersigned parties request admission of the Brown Declaration and its exhibits which support confirmation of the place of use for the 10 cfs right as set forth in the Stipulation — the area described in the Service Area Map and the table of '/4 1/4 sections. The Service Area Map will control as the specified place of use for the City's water rights. Period of Use. January 1 through December 31 (same as Report). B. "1951 Off -Season" Water Right Ouantiry: Evidence admitted at the 1998 exceptions hearing demonstrates that the City has historically used 4,414 AF under the 1951 off-season water right. COY 100 (annual quantity summary table), COY 87/101 (Naches River Water Treatment Plant daily diversion table). The Court should therefore confirm the quantity for the City's 1951 off-season water right as set forth in the Stipulation — up to 4,414 AF as part of a combined maximum quantity of 7,826 AF under this water right and the portion of the Reclamation contract water right that the City diverts at the Naches River Water Treatment Plant (see below). Diversion Rate: Evidence admitted at the 1998 exceptions hearing demonstrates that the City has historically used 29 cfs under the 1951 off-season right. This is demonstrated in summary form in COY 92 (instantaneous quantity summary table), and in a more detailed form in COY 87/101 (Naches River Water Treatment Plant daily diversion table) and COY 83 (strip chart of instantaneous diversion rates). The Court should therefore confirm the diversion rate as set forth in the Stipulation for the City's 1951 off-season water right — 29 cfs. JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE. CITY OF YAKIMA'S WATER RIGHTS CLAIM - 5 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE- (206) 623-7580 FACSIMILE: (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Purpose of Use • Municipal supply (same as Report). Priority Date: January 29, 1951 (same as Report). Point of Diversion Naches River Water Treatment Plant (same as Report). Place of Use • As with the City's 10 cfs right, the Court requested the City to provide the current place of use for the 1951 off-season water right. The Service Area Map (COY 103, Ex. A to Brown Declaration) and the table of I/4 sections (COY 103, Ex. B to Brown Declaration) provide this information and support confirmation of the areas described therein as the place of use for the 1951 off-season right, as set forth in the Stipulation. The Service Area Map will control as the specified place of use for the City's water rights. Period of Use The Certificate for this water right establishes its season of use as extending from October 16th until the start of storage control, regardless of when that may occur. COY 35 (Certificate). This period of use is complimentary with the period of use for the City's Reclamation contract water right (the beginning of storage control through October 15`h). Evidence admitted at the 1998 exceptions hearing demonstrates that the City has historically diverted water under the 1951 off-season water right during this October 16 until storage control period of use. COY 87/101 (Naches River Water Treatment Plant daily diversion table). The Court should therefore confirm the period of use for the City's 1951 off-season water right as set forth in the Stipulation — from October 16th until the beginning of storage control, as determined by the US Bureau of Reclamation. C. "Glaspey" and "Old Union" Water Rights Quantity. Glaspey, 945 AF; Old Union, 5,585 AF (both same as Report). Diversion Rate. Glaspey varies from 3 cfs to 1.5 cfs; Old Union varies from 17.73 cfs to 8.87 cfs (both same as Report — see Stipulation for specific monthly diversion rates). Purpose of Use: The record before the Court supports the Stipulation and demonstrates that the City established (through substantial compliance with the RCW 90.03.380 change process) and has used the Glaspey and Old Union water rights as municipal supply rights. Unlike other water JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 6 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104.7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 rights for which parties have claimed municipal purpose in the Acquavella litigation, the City of Yakima followed the statutory change process, set forth in what is today RCW 90.03.380, for both the Glaspey and Old Union water rights. This Court addressed the issue of what constitutes a water right for municipal purposes in the Report of the Court Concerning the Water Right of Naches-Cowiche Canal Company, Volume 22. In that report, the Court indicated that, generally, for a water right to be a municipal right, it must either have been initially perfected as a municipal right, or have been changed to a municipal right by receiving a change in purpose of use as required under RCW 90.03.380. See Report of the Court Concerning the Water Rights for the Naches Cowiche Canal Company, Volume 22, October 10, 1994, at 15-18. When the City acquired the Glaspey and Old Union rights in the early 1920s, it complied with the newly -required statutory change process.2 Immediately after acquiring these rights, the City drafted and filed petitions with the State Supervisor of Hydraulics for changes of points of diversion, and, for the Glaspey right, for a change of place of use. COY 22A and 23A (petitions to transfer former Old Union rights); COY 26A (petition to transfer former Glaspey right). At the time these change petitions were filed (1923-25), there were no detailed form applications for water right changes that would have required specification of the precise type of change requested. This is in sharp contrast with Ecology's current and longstanding practice of using such forms. Compare COY 23A, 24A and 26A (1920s petitions for change) with COY 34B (modern Application for Change of Water Right form with "check the box" selection of type of change requested -- i.e., change of "purpose," "place," "diversion or withdrawal," or "additional point or points"). The City therefore developed and filed the change petitions for the Old Union and Glaspey water rights in several different forms varying from simple one page signed submissions in 1923 and 1924 (COY 2 The statutory change process now embodied in RCW 90.03.380 was not established until 1917 with the adoption of the surface water code. 1917 Laws of Washington Ch 117, Section 39. JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE. CITY OF YAKIMA'S WATER RIGHTS CLAIM - 7 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE. (206) 623-7580 FACSIMILE: (206) 623.7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 22A and COY 23A) to a substantially more formal notarized pleading style submission in 1925 (COY 26A). In all cases, however, after providing the required public notice, the Supervisor granted the requested changes — establishing the City of Yakima, in its municipal capacity, as the user, and establishing the City -owned municipal irrigation system as the point of diversion. COY 22, 23 and 26. Since receiving approval of the transfers, the City has continually used the water for municipal purposes, i.e., by delivering it though the City -owned and operated General Irrigation System to meet the needs of the general public. The totality of facts and circumstances surrounding the City's application for, and receipt of, change certificates demonstrate that the City substantially complied with the requirements of the change statute. Ecology v Adsit, 103 Wn. 2d 698, 704, 694 P.2d 1065 (1985) (finding substantial compliance with Water Code where adequate information was actually provided despite use of improper form). The petitions the City drafted and filed, the resulting public notices, related correspondence, and finally, the Supervisor's certificates all clearly described the proposed change that the City was requesting — which was from private irrigation use to municipal use. COY 22; 22A; 23; 23A; 26; 26A. Accordingly, although the certificates are not entitled "change of purpose of use," the totality of the circumstances indicates the overall intent of the parties to change the rights to municipal purpose and the certificates should be interpreted as effecting a change to municipal purpose. A contrary finding would elevate form over substance by applying a 2151 century standard of regulatory specificity to the City's and State's actions in the early 1920s. The City's substantial compliance with the change statute also distinguishes this case from both Ecology v Abbott, 103 Wn. 2d 686, 694 P.2d 1071 (1985), and from the Naches-Cowiche Canal Company proceeding in this adjudication. The claimants in those cases did not pursue any change process Abbott, 103 Wn. 2d at 696; Report of the Court Concerning the Water Rights for the Naches-Cowiche Canal Company, Volume 22, October 10, 1994 at 18. The State therefore did not have the information necessary to evaluate the proposed changes. Here, on the other hand, JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 8 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104.7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623.7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 because the City pursued and obtained statutory changes, the Supervisor of Hydraulics had all the necessary facts, demonstrating the City's substantial compliance with the change statute. See Adsit, 103 Wn. 2d at 704. The record before the Court therefore demonstrates that the City established the Glaspey and Old Union water rights as municipal purpose water rights and continues to use them as such to this day. The Court should therefore confirm the purpose of use as set forth in the Stipulation for the Glaspey and Old Union water rights — municipal supply. Priority Date: Glaspey, April 1, 1869; Old Union, June 30, 1878 (both same as Report). Point of Diversion: For both Glaspey and Old Union, Nelson Bridge (same as Report — see Stipulation for legal description). Place of Use: The record before the Court supports confirmation of the City's Glaspey and Old Union water rights in the area set forth in the Stipulation. The City's RCW 90.14 claim for both water rights (COY 20) indicates that the place of use for the rights is "City of Yakima," which, as the Court notes in reference to the 10 cfs right, is broad enough to include areas served that are outside of the "greater City of Yakima." Report at 19. Similarly, the change certificate for the Glaspey water right authorizes use within the City of Yakima. COY 26. Finally, the fact that these water rights are held for municipal supply purposes supports confirmation of a place of use for them that is coextensive with the City's current municipal service area. Exhibits to the Brown Declaration demonstrate the current service area of the City's municipal system. (COY 103, Exs. A and B to Brown Declaration). The entire record before the Court therefore supports confirmation of the place of use for the Glaspey and Old Union water rights as set forth in the Stipulation — the area described in the Service Area Map and the table of 1/4 1/4 sections. The Service Area Map will control as the specified place of use for the City's water rights. Period of Use: For both Glaspey and Old Union, April 1 through October 15. Evidence submitted at trial and at the 1998 exceptions hearing demonstrates that the City has historically used JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 9 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE: (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the Glaspey and Old Union rights at least from April 1 through October 15. COY 39 (BOR diversion records for Nelson Bridge); COY 88 (Nelson Bridge daily diversion table). The Court should therefore confirm the period of use as set forth in the Stipulation for the City's Glaspey and Old Union water rights as April 1 through October 15, rather than October 31 as stated in the Court's Report. D. US / COY Contract Water Right (Reclamation Contract Water Right) Quantity- Evidence admitted at the 1998 exceptions hearing demonstrates that the City has historically used 3,583 AF under the Reclamation contract water right at the Naches River Water Treatment Plant. COY 100 (annual quantity summary table), COY 87/101 (Naches River Water Treatment Plant daily diversion table). Similarly, evidence admitted at the exceptions hearing demonstrates that the City has historically used at least 1,500 AF at Nelson Bridge, the quantity recommended for confirmation in the Report. COY 100, COY 88 (Nelson Bridge daily diversion table); Report at 61. The Court should therefore confirm the quantity for the City's Reclamation contract water right as set forth in the Stipulation — a total of 5,083 AF, of which a maximum of 3,583 AF may be diverted at the Naches River Water Treatment Plant and a maximum of 1,500 AF may be diverted at Nelson Bridge. As set out in the Stipulation, the portion of this water right that is diverted at the Naches River Water Treatment Plant, when combined with the water diverted under the City's 1951 off-season water right, should be subject to a combined maximum quantity limitation of 7,826 AF (see above). The maximum combined quantity limitation does not apply to the portion of the Reclamation contract water right diverted at Nelson Bridge. Diversion Rate. Evidence admitted at the 1998 exceptions hearing demonstrates that the City has historically used 29 cfs under the Reclamation contract water right at the Naches River Water Treatment Plant. COY 92 (instantaneous quantity summary table), COY 87/101 (Naches River Water Treatment Plant daily diversion table), COY 83 (strip chart of instantaneous diversion rates). Similarly, evidence admitted at the exceptions hearing demonstrates that the City has JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE• CITY OF YAKIMA'S WATER RIGHTS CLAIM - 10 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7076 TELEPHONE (206) 623-7560 FACSIMILE (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 historically used at least 6.2 cfs at Nelson Bridge, the quantity recommended for confirmation in the Report . COY 92, COY 88 (Nelson Bridge daily diversion table); Report at 61. The Court should therefore confirm a diversion rate for the City's Reclamation contract water right as set forth in the Stipulation — 29 cfs at the Naches River Water Treatment Plant and 6.2 cfs at Nelson Bridge. Purpose of Use As discussed in Section II. C. above, in general, for a water right to serve a municipal purpose of use it must either have been initially perfected as a municipal right or have received approval for a change in purpose of use pursuant to RCW 90.03.380. See Report of the Court Concerning the Water Rights for the Naches Cowiche Canal Company, Volume 22, October 10, 1994, at 15-18. Evidence admitted at the 1995 evidentiary hearing, the 1998 exceptions hearing, and other hearings demonstrates that the City originally established the entire Reclamation contract water right as a municipal supply right and has continually used it as such. The 1938 contract, for 3,000 AF of water to be delivered to the City's Nelson bridge diversion dam, states that the water was for "domestic purposes and for irrigation within the corporate limits of the City and for municipal purposes within the said City." COY 17 at 1111 (emphasis added). Similarly, the City Resolution authorizing the contract states that the contract water was to supplement the City's existing rights, which the City used for "irrigation, domestic and municipal purposes in said city." COY 17A at p. 1 (emphasis added). Accordingly, the City's right to use Reclamation contract water at the Nelson Bridge diversion, i.e , in the City's General Irrigation System, originated as a municipal supply right. The 1952 contract, which was also for water to be delivered at the City's Nelson Bridge diversion dam, mirrors and builds upon the City's 1938 acquisition of water for municipal supply purposes. First, as with the 1938 contract, the 1952 contract states that the City is a municipal corporation. COY 18 at p. 1. Second, the contract states that the City's existing water supply "is inadequate to furnish the amount of water required by the City for domestic purposes" and that the JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 11 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623.7580 FACSIMILE. (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 City desired to increase its water supply by purchasing additional water from Reclamation.3 Id. at 4 (emphasis added). The contract therefore provided that water, to be delivered to the Nelson Bridge Diversion, was to be used "for domestic, irrigation, and industrial purposes within the corporate limits of the City and adjoining areas served by the City domestic water system." Id. at ¶ 15. Again, the City ordinance authorizing the 1952 contract evidences the City's continued intent to obtain water in its municipal capacity to supplement its domestic (i.e., municipal) water supply. COY 18A at p. 1 ("[T]he City Commission of the City of Yakima deems it necessary to procure additional domestic water for the City of Yakima."). In the context of purposes of use for water rights, it is commonly understood that "municipal" is an umbrella term that incorporates a number of different types of uses. Despite the absence of the word "municipal" in the 1952 contract, the context and documents as a whole demonstrate that the contract is for municipal supply, which includes domestic, irrigation, and industrial uses. The City, a municipal corporation, recognizing that its existing municipal water supplies were inadequate, sought and obtained additional water from Reclamation to add to the Reclamation water it had obtained in 1938 "for municipal purposes." The Bureau therefore understands the entire 6,000 AF contract to be for municipal purposes, and does not believe that the 1952 contract was intended to change the purposes of use authorized under the 1938 contract. Report of Proceedings, Volume I (March 11, 1998), pp. 67-68, 106-08, 126 (Testimony of L. Kj eldgaard). This evidence relating to the contracts between the City and the Bureau is supported by the RCW 90.14 water right claim form associated with the City's Reclamation contract water right that was filed by the Bureau into the State water right claims registry. The claim form, which covers 3 The references in the 1952 Contract and City Ordinance to the City's need to acquire additional supply for domestic purposes demonstrates that the "domestic" use referred to is domestic use traditionally associated with municipal supply, and not merely domestic use that is incidental to irrigation uses. The contracts between the U S and the City of Yakima, and the RCW 90.14 claim form that is discussed below, include language that demonstrates the City's domestic use was to be broad and not limited to domestic use that was merely incidental to irrigation. JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 12 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 water diverted at Nelson Bridge and distributed through the City's General Irrigation System, specifies that the purposes of use for the right are for "irrigation (lawn and garden), domestic, industrial" uses. CE -1 (Lentz Report) at 80; SE -2 in Subbasin No. 19 Proceeding (claim form). While the purposes of use specified on the form do not expressly include "municipal" use, the three listed uses, which include "domestic" and "industrial" are understood to be purposes of use that fall under the "umbrella" as municipal uses. Municipal water systems commonly purvey water for domestic and industrial uses to serve customers in their service areas. The claim form specifies the legal description of the lands of which the water is used as "City of Yakima — Lands within corporate limits thereof; and adjoining areas served by the City domestic water system." SE -2 in Subbasin No. 19 Proceeding. It is significant that the claim for water diverted at both the Nelson Bridge and Naches River water treatment plant diversions covers water purveyed through the City's domestic water system and claims irrigation, domestic, and industrial purposes of use for water diverted at both points. This demonstrates that the water diverted at Nelson Bridge and distributed through the City's General Irrigation System originated as a right under the municipal "umbrella" of uses. All the evidence, when considered together and in the context of the City's operations as a municipal water purveyor, demonstrates that the right was established for municipal supply purposes. Finding to the contrary just because the documents indicate uses for irrigation, domestic, and industrial purposes, and not expressly for "municipal" use, would elevate form over substance and ignore the totality of the circumstances. Accordingly, the evidence supports and the Court should confirm the purpose of use for the entire Reclamation contract water right set forth in the Stipulation — municipal supply. Priority Date. May 10, 1905 (same as Report). Points of Diversion: Naches River Water Treatment Plant and Nelson Bridge (same as Report). JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 13 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE: (206) 623-7580 FACSIMILE. (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Place of Use: The 1952 Reclamation Contract provides that all of the water under the contract is for use "within the corporate limits of the City and adjoining areas served by the City domestic water system." COY 18 at ¶ 15. Exhibits to the Brown Declaration demonstrate the current service area of the City's domestic system. (COY 103, Exs. A and B to Brown Declaration). These exhibits support confirmation of the place of use for the Reclamation contract water right as set forth in the Stipulation — the area described in the Service Area Map and the table of '/4 '/4 sections. The Service Area Map will control as the specified place of use for the City's water rights Period of Use The Reclamation contract for this right establishes its period of use as the period of storage control, regardless of when that may occur. COY 18 (Contract); COY 19 (1965 Amendment). This period of use is complementary with the period of use for the City's 1951 off- season water right (October 16th until the beginning of storage control). Evidence admitted at the 1998 exceptions hearing demonstrates that the City has historically diverted water under the Reclamation contract water right during storage control. COY 87/101 (Naches River Water Treatment Plant daily diversion table). The Court should therefore confirm a period of use for the Reclamation contract water right as set forth in the Stipulation — from the beginning of storage control, as determined by the US Bureau of Reclamation, through October 15tH III. SCOPE OF MEMORANDUM This memorandum is not intended to be an admission as to any legal or factual issue and is not intended to waive or concede any legal arguments in this and other proceedings in this adjudication, and in other cases. IV. CONCLUSION For the reasons stated above, the undersigned parties to the Stipulation re: City of Yakima (Claim 2110) respectfully request the that the Court approve the Stipulation and enter a Conditional JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 14 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104.7078 TELEPHONE (206) 623-7580 FACSIMILE. (206) 623-7022 • a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Final Order confirming the City's water rights in the manner and in the quantities set forth in the Stipulation. DATED this 3 / day of July, 2002. 4() ADAM W. G 891 LEY, SBA #20343 MATTHEW D. WELLS, WSBA #22318 Preston Gates & Ellis LLP Attorneys for City of Yakima ALAN M. REICHMAN, WSBA #23874 Assistant Attorney General Attorneys for Plaintiff State of Washington Department of Ecology K./25739/00025/AWG/AWG P20YO.DOC CHARLES R. SHOC Y, D.C. Bar # 914879 U. S. Department of Justice Environmental & Natural Resources Division Attorney for United States of America JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 15 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 981 04-7 078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Final Order confirming the City's water rights in the manner and in the quantities set forth in the Stipulation. DATED this day of July, 2002. ADAM W. GRAVLEY, WSBA #20343 MATTHEW D. WELLS, WSBA #22318 Preston Gates & Ellis LLP Attorneys for City of Yakima ALAN M. REICHMAN, WSBA #23874 Assistant Attorney General Attorneys for Plaintiff State of Washington Department of Ecology K/25739/00025/AWG/AWG P20Y0.DOC JOINT MEMORANDUM IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA'S WATER RIGHTS CLAIM - 15 CHARLES R. SHOCKEY, D.C. Bar 4 914879 U. S. Department of Justice Environmental & Natural Resources Division Attorney for United States of America PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104.7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623.7022 b 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF YAKIMA IN THE MATTER OF THE DETERMINATION OF THE RIGHTS TO THE USE OF THE SURFACE WATERS OF THE YAKIMA RIVER DRAINAGE BASIN, IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 90.03, REVISED CODE OF WASHINGTON STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Plaintiff, v. JAMES J. ACQUAVELLA, et al., Defendants. No. 77-2-01484-5 DECLARATION OF DAVID E. BROWN IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA WATER RIGHT CLAIM No. 2110 Ex. COY I, DAVID E. BROWN, hereby declare and state as follows: 1. I have been employed by the City of Yakima since 1984, and my responsibilities have at all times included the City's water system. Since 1996, I have held the position of Water/Irrigation Engineer for the City. 2. This Declaration is submitted in support of the Stipulation Re: City of Yakima Water Right Claim No. 2110 ("Stipulation"). DECLARATION OF DAVID E. BROWN IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA WATER RIGHT CLAIM No. 2110 - 1 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104.7078 • TELEPHONE: (206) 623-7580 FACSIMILE (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3. Attached hereto as Exhibit A is the City of Yakima Service Area Map that shows the place of use proposed in the Stipulation for the City's five water rights in Claim No. 2110. The Service Area Map identifies the locations inside and outside of the current City limits where the City currently provides water service. 4. Attached hereto as Exhibit B is a 1/4 '/4 Section Legal Description. The City's current service area (and proposed water rights place of use) shown on the Service Area Map in Exhibit A is located within the '/4 '/4 Section Legal Description in Exhibit B. 5. In the event the Court approves the Stipulation and issues a conditional final order for the City's water rights consistent with the Stipulation, the City intends to undertake certain actions and investments in reliance thereon. Namely, the City intends to plan, design, arrange funding for, and construct a more water -efficient system for delivery of water diverted at Nelson Bridge. The City has not made a decision as to the specific water delivery system improvement project it intends to implement, but the City has reviewed preliminary options. Any water delivery system improvement project will cost tens of millions of dollars and take several years to complete. 6. Because the City intends to undertake a water delivery system improvement project in reliance on the water rights confirmed in a conditional final order consistent with the Stipulation, it is important that any appeals occur after entry of the conditional final order. As a result, the City has a compelling interest in the Court's determination that a conditional final order consistent with the Stipulation is a final order for purposes of appeal and in the Court's inclusion of the specific supporting findings as set forth in the Stipulation. DECLARATION OF DAVID E. BROWN IN SUPPORT OF STIPULATION RE. CITY OF YAKIMA WATER RIGHT CLAIM No. 2110 - 2 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 J: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED July ,2, 3 , 2002, atYakima, Washington. K325739/00025/AWGIAWG P2OXY.DOC DECLARATION OF DAVID E. BROWN IN SUPPORT OF STIPULATION RE: CITY OF YAKIMA WATER RIGHT CLAIM No. 2110 - 3 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE, WASHINGTON 98104-7078 TELEPHONE (206) 623-7580 FACSIMILE (206) 623-7022 Exhibit B City of Yakima '/ % Section Legal Description An asterisk (*) denotes a legal subdivision that is only partially within the City's place of use. The Service Area Map (Exhibit A) is controlling as to place of use. T. 12 N. R. 18 E.W.M. Section 1 * Gov Lot 4(from * NW 1/4 NW '/4), * SW 1/4 NW 1/4 Section 2 * Gov Lot 1(from * NE '/4 NE '/4), * SW 1/4 NW '/4 , * SE '/4 NW '/4 * SW 1/4 NE '/4, * SE 1/4 NE 1/4 , Gov Lot 4 (from NW '/4 NW '/4), Gov Lot 3 (from NE % NW '/4), Gov Lot 2 (from NW 1/4 NE '/4), Section 3 * Gov Lot 2 (from * NW '/4 NE '/4), * SW '/4 NE '/4, * SE '/4 NE 1/4, and Gov Lot 1(from NE 1/4 NE '/4) T. 13 N. R. 18 E.W.M. Section 4 * SW 1/4 SW '/4 Section 5 * Gov Lot 2 (from * NW '/4 NE 1/4), * SW 1/4 NE '/4, * NE 1/4 SE 1/4, * SW'/4SE'/4, and* SE'/4SE'/4 Section 9 * SW 1/4 NE '/4, * NW 1/4 SE '/4, * NE 1/4 SE '/4, * SW '/4 SE 1/4, and SE 1/4 SE 1/2 Section 10 * NW 1/4 SW 1/4, * SE '/4 SE '/4, * SW 1/4 SE 1/4, * SE '/4 SW '/4, and * SW 1/4 SW 1/4 Section 11 * NE 1/4 SE 1/4, * SE 1/4 SE 1/4, * SW 1/4 SE '/4, * SE '/4 SW 1/4, and * SW '/4 SW 1/4 Section 12 * NW 1/4 SW '/4, * NE 1/4 SW 1/2, * NW 1/2 SE 1/4, * NE 1/4 SE 1/4, and S'/2 S'/2 Section 13 All Section 14 All Section 15 All Section 16 * NW 1/2 NE 1/4 * SE '/4 NE 1/4 * SW 1/4 NE 1/4 * NW 1/4 SE 1/2 * SW 1/4 SW 1/4, * SE 1/4 SW 1/4, * SW 1/4 SE 1/4, NE 1/4 NE 1/4, and E'/2 SE '/4 Section 21 * NW 1/4 NW 1/4 * NE 1/4 NW 1/4*NE 1/4 NE 1/4 * SW '/4 NW 1/2 * SE'/4 NW 1/4, * SW 1/4 NE 1/4, and * SE'/ NE 1/4 Section22 *NW'/4NW'/4,* SW 1/4 NW'/4,*NW'/4SW'/4,* NE 1/4 SW 1/4, * S W 1/4 SW 1/4, E'/2 NW 1/4, E''/2, and SE 1/4 SW 1/4 Section 23 All Section 24 All Section 25 All Section 26 All Section27 * NW '/4NW 1/4, * SW'/4NW'/4, *NW 1/4 SW'/4, * NW 1/4 SE 1/4, * SW 1/2 SW 1/4, * SW 1/4 SE 1/4, E'/2 NW 1/4, NE 1/4, and E'/2 SE 1/4 Section 34 * NW 1/4 NE 1/4, * SW 1/4 NE 1/4, E'/2 NE 1/4, and E'/2 SE 1/4 Section 35 All Section 36 * NW 1/4 SW 1/4, * NE 1/4 SW 1/4, * NW 1/4 SE 1/4, *SW 1/4 SW 1/4, *SE 1/4 SW 1/4, N'/2 T. 13 N. R. 19 E.W.M. Section? *NW'/2SW'/4,*SW'/4SE'/4,*SE'/4 SW 1/4, and SW'/4SW'/4 Section 17 * SW 1/4 SW '/4 Section 18 * NW 1/4 NE 1/4, * SE 1/4 NE '/4, * NE 1/4 SE '/4, NW 1/2, SW 1/4 NE '/4, SW 1/4, NW 1/4 SE '/4, and S''/2 SE 1/4, Section 19 All Section 20 * NE 1/4 NW 1/4, *NW 1/4 NE 1/4, *NE 1/2 NE 1/4, * SE 1/2 NE 1/4, *NE 1/4 SE 1/2 , * SE 1/4 SE 1/4, S1/2 NW 1/4, SW 1/4 NE 1/4, SW 1/4, and W1/2 SE '/4, Section 28 * SW 1/4 NW 1/4, * NE 1/4 SW 'A, * SW '/4 SW 1/2, * SE 1/4 SW 1/4, and NW 1/4 SW 1/4 Section 29 All of Section 29 except a portion of * NE 1/4 NE 1/4 (NE 1/4 NE 1/4 partially covered) Section 30 All Section3l *NW'/4SW'/4,*NE'/4SW'/4,*NW'/4SE'/4,* SW 1/2 SE'/4,* NW 1/2 SW 1/4, NV2, and E'/2 SE 1/2, Section 32 *NE'/4NE'/4 * SW 1/4 NW 1/2 * SE 1/4 NW 1/2 * SE'/4NE'/4 * NE 1/4 SW 1/4, * SE 1/4 SW 1/4, and NW 1/4 SW 1/4, Section 33 * NW 1/4 NW 1/4, and * SW 1/4 NW 1/4 T. 14 N. R. 18 E.W.M. Section 29 * NW 1/4 SW 1/4, and * SW 1/4 SW 1/4, Section 30 * Gov Lot 3 (from * NW 1/2 SW 1/4), * NE 1/4 SW 1/4, and * SE 1/4 SW '/4 Section 31 * NW 1/4 NE 1/4, * NE 1/2 NE 1/4, * SW 1/4 NE 1/4, * SE 1/4 NE 1/4, and * NE 1/4 SE 1/4, Section 32 *NW'/4NW'/4,*SW'/4NW'/4,and *NW'/4SW'/4 STATE OF WASHINGTON DEPARTMENT OF ECOLOGY PERMIT TO APPROPRIATE PUBLIC WATERS OF THE STATE OF WASHINGTON Supersedes Certificate of Water Right S4 -01141C issued January 6, 1975 This document is issued concurrently with Surface Water Certificate S4-01141C(A) • Surface Water (Issued in accordance with the provisions of Chapter 117, Laws of Washington for 1917, and amendments thereto, and the rules and regulations of the Depanment of Ecology ) ❑ Ground Water (Issued in accordance with the provisions of Chapter 263, Laws of Washington for 1945, and amendments thereto, and the rules and regulations of the Department of Ecology.) PRIORITY DATE January 29, 1951 APPLICATION NUMBER 10095 PERMIT NUMBER S4-01141P(B) CERTIFICATE NUMBER NAME City of Yakima ADDRESS (STREET) (CITY) (STATE) (ZIP CODE) 129 N 2nd St Yakima WA 98901 The applicant is, pursuant 10 the settlement agreement dated , hereby granted a permit to appropriate the following public waters of the State of Washington, subject 10 existing rights and to the limitations and provisions set out herein. SOURCE Naches River PUBLIC WATERS TO BE APPROPRIATED TRIBUTARY OF (IF SURFACE WATERS) Yakima River MAXIMUM CUBIC FEET PER SECOND 29 cubic feet per second QUANTITY, TYPE OF USE, PERIOD OF USE MAXIMUM GALLONS PER MINUTE MAXIMUM ACRE -FEET PER YEAR 1986 For municipal supply from October 16 to the beginning of Yakima Project storage control, as determined by the US Bureau of Reclamation. APPROXIMATE LOCATION OF DIVERSION --WITHDRAWAL LOCATION OF DIVERSION/WITHDRAWAL The Naches River Water Treatment Plant diversion (aka Rowe Hill and Gleed Plant) located 900 feet N 64° 20' W from the SW corner of Section 13 LOCATED WITI-IIN (SMALLEST LEGAL SUBDIVISION) SWY4SW1V4 SECTION 13 TOWNSHIP N 14 RANGE, (E. OR W) W M. 17E. W R I A. 38 COUNTY Yakima LOT BLOCK RECORDED PLATTED PROPERTY OF (GIVE NAME OF PLAT OR ADDITION) LEGAL DESCRIPTION OF PROPERTY ON WHICH WATER IS TO BE USED See attached map and legal description. PERMIT EXHIBIT C 1 No. S4-01141P(B) DESCRIPTION OF PROPOSED WORKS N/A DEVELOPMENT SCHEDULE BEGIN PROJECT BY THIS DATE COMPLETE PROJECT BY THIS DATE: WATER PUT TO FULL USE BY THIS DATE. * See below PROVISIONS Screening of the diversion intake shall be maintained in accordance with applicable law of Department of Fisheries and Wildlife. No dam shall be constructed in connection with this diversion. This authorization is in addition to the annual quantity under Surface Water Certificate No. S4-01 141C(A) or its replacement certificate subsequent to the issuance of the Decree in Ecology v. Acquavella. The right perfected under this permit will be additive to the combined maximum annual quantity of 7826 acre-feet under Certificate No. S4-01 141C(A) and the portion of the US Bureau of Reclamation Contract No. 14-06-W53 dated December 12, 1952, as amended on December 10, 1965, water right diverted at the Naches River Water Treatment Plant. The permitted instantaneous quantity under Surface Water Permit No. S4-01141P(B) diverted at the Naches River Treatment Plant is not additive to the instantaneous quantity under Surface Water Certificate No S4-01 141 C(A). * Development Schedule. Full beneficial use shall be within 20 years of issuance of this permit. The pennittee shall submit status reports to the Department of Ecology, Central Region Office, Water Resources Program through submittal of the Department of Health required Water System Plans This authorization shall in no way excuse the permittee from compliance with any applicable federal, state, or local statutes, ordinances, or regulations including those administered by other programs of the Department of Ecology, those administered by local and state health departments for public water supplies (2 or more service units), and those administered by local agencies under the Shoreline Management Act of 1971. A proof inspection will be conducted prior to final certificate issuance. The certificate will reflect the extent of the project perfected within the limitations of the_pennit. Aspects will include as appropriate the source(s), system instantaneous capacity, beneficial use(s), annual quantity, place of use, and satisfaction of provisions. An approved measuring device shall be installed and maintained for each of the sources identified herein in accordance with the rule "Requirements for Measuring and Reporting Water Use", Chapter 173-173 WAC. Water use data shall be recorded daily with monthly totals and shall be submitted annually to Ecology by (January 31st of each calendar year). The rule above describes the requirements for data accuracy, device installation and operation, and information reporting. It also allows a water user to petition Ecology for modifications to some of the requirements. Installation, operation and maintenance requirements are enclosed as a document entitled "Water Measurement Device Installation and Operation Requirements". Continued on page 3 This permit shall be subject to cancellation should the permittee fail to comply with the above development schedule and/or to give notice to the Department of Ecology on forms provided by that Department documenting such compliance. Given under my hand the seal of this office at Yakima, Washington, this day of Department of Ecology ENGINEERING DATA OK by Robert F Barwin, Section Manager PERMIT EXHIBIT C 2 No S4-01141P(B) Provisions continued: At a minimum, the following information shall be included with each submittal of water use data: owner, contact name if different, mailing address, daytime phone number, WRIA, Permit or Certificate No., Department of Health WFI water system number and source number, source name (if any), annual. quantity used including units of measurement, maximum monthly rate of diversion including units of measurement, and period of use. In the future, Ecology may require additional parameters to be reported or more frequent reporting. Ecology prefers web based data entry, but does accept hard copies. Ecology will provide forms and electronic data entry information. Department of Ecology personnel upon presentation of proper credentials shall have access at reasonable times, to the records of water use that are kept to meet the above conditions, and to inspect at reasonable tines any measuring device used to meet the above conditions. PERMIT EXHIBIT C 3 No S4-01141P(B) City of Yakima 129 N 2nd St Yakima WA 98901 Nom WASHINGTON STAYS 0 PAA111 01 01 ECOLOGY STATE OF WASHINGTON SUPERSEDING CERTIFICATE OF WATER RIGHT Supersedes Certificate No. S4 -01141C issued January 6, 1975. This document is issued concurrently with Surface Water Permit No. S4-01 141 P(B). Document Title: Certificate of Water Right Agency: Department of Ecology Central Regional Office 15 W. Yakima Avenue, Suite 200 Yakima, WA 98902 Reference Number: PRIORITY DATE January 29, 1951 S4-01141C(A) Applicant: City of Yakima 129 N 2"d St Yakima WA 98901 APPLICATION NUMBER 10095 PERMIT NUMBER 9006 CERTIFICATE NUMBER This is to cert f, that the herein named applicant has made proof to the satisfaction of the Department of Ecology of a right to the use oldie public craters of the State of Washington as herein defined, and under and specifically subject to the provisions contained in the Permit issued by the Department of Ecology, and that said right to the use of said craters has been perfected in accordance with the laws of the State of Washington, and is hereby confirmed by the Department of Ecology and entered of record as shown, but is limited to an amount actually beneficially used. PUBLIC WATERS TO BE APPROPRIATED SOURCE Naches River TRIBUTARY OF (iF SURFACE WATERS) Yakima River MAX. CUBIC FEET PER SECOND 29 MAX. GALLONS PER MINUTE MAX. ACRE-FEET PER YEAR 4414 QUANTITY/TYPE OF USE/PERIOD OF USE For municipal supply from October 16 to the beginning of Yakima Project storage control, as determined by the US Bureau of Reclamation LEGAL DESCRIPTI PARCEL # LEGAL DESCRIPTION OF PROPERTY ON WHiCH WATER IS TO BE USED 1/41/4 SECTION TOWNSHIP N. RANGE (E. OR W) W.M. W.R.I.A. J COUNTY PARCEL ti Place Marker See attached map and legal description. ADDITIONAL LEGAL iS ON PAGE 2 EXHIBIT D — — . a-dlXV.V,.I111111LJA‘r%VI' tti.1 1/4 1/4 SECTION TOWNSHIP N RANGE (E. OR W ) W.M. W.R.I.A. COUNTY SW'/4SW'/4 13 14 17E. 38 Yakima PARCEL # LEGAL DESCRIPTION OF PROPERTY ON WHiCH WATER IS TO BE USED 1/41/4 SECTION TOWNSHIP N. RANGE (E. OR W) W.M. W.R.I.A. J COUNTY PARCEL ti Place Marker See attached map and legal description. ADDITIONAL LEGAL iS ON PAGE 2 EXHIBIT D CONTINUED LEGAL DESCRIPTION FOR LOCATION OF DIVERSION/WITHDRAWAL Naches River Water Treatment Plant diversion, approximately 900 ft N 64° 20' E from the SW corner Section 13 (aka Rowe Hill or Gleed Plant) CONTINUED LEGAL DESCRIPTION FOR PROPERTY ON WHICH WATER IS TO BE USED See attached map and legal description. PROVISIONS All conditions and requirements contained in reports of examination or permits previously issued apply to this certificate unless specifically noted below. Screening of the diversion intake shall be maintained in accordance with applicable law of Department of Fisheries and Wildlife. No dam shall be constructed in connection with this diversion. This right and the portion of the US Bureau of Reclamation Contract No. 14-06-W53 dated December 12, 1952, as amended on December 10, 1965, water right diverted at Naches River Water Treatment Plan have a combined maximum annual quantity of 7826 acre-feet per year. It is intentional that the combined total is less than the sum of the individual maximum annual quantities. The right to use of the water aforesaid hereby confirmed is restricted to the lands or place of use herein described, except as provided in RCW 90.03.380, 90.03.390, and 90.44.100. Given under my hand and the seal of this office at Yakima, Washington, this day of ENGINEERING DATA OK ECY 040-1-2 (Rev 8-97) Attachment: Map & Legal Description Tom Fitzsimmons Department of Ecology By Robert F. Barwin, Section Manager EXHIBIT D YAKIMA RIVER BASIN - WATER RIGHTS AIDJUDTCAT ION 'The...S'tate o;f. Washington, ; .Department. ofcology James. ; J Acquavel.la, .et -al : - _- - Yakima County Superior Court., Cause No. 77-2-0.1484 SUPPLEMENTAL REPORT OF THE.COURT CONCERNING THE WATER RIGHTS FOR THEN CITY ,.OF YAKIMA VOLUME .4OA. =PART .I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR THE COUNTY OF YAKIMA IN THE MATTER OF THE DETERMINATION ) OF THE RIGHTS TO THE USE OF THE ) SURFACE WATERS OF THE YAKIMA RIVER ) DRAINAGE BASIN, IN ACCORDANCE WITH ) THE PROVISIONS OF CHAPTER 90.03, ) NO. 77-2-01484-5 REVISED CODE OF WASHINGTON ) THE STATE OF WASHINGTON, ) SUPPLEMENTAL REPORT OF DEPARTMENT OF ECOLOGY, ) THE COURT CONCERNING THE WATER RIGHT FOR Plaintiff, ) THE CITY OF YAKIMA COURT CLAIM NO. 2110 v. ) JAMES J. ACQUAVELLA, et al., ) Defendants. ) I. BACKGROUND The City of Yakima, through Court Claim No. 2110, claims a water right from the Naches River for municipal purposes within the City of Yakima and certain surrounding areas. The Court held a pre-trial conference on February 9, and the evidentiary hearing February 13 through 16, 1995. The Court entered its initial Report on October 27, 1997. Exceptions were filed. The Court held the exception hearing March 11 through 13, 1998. The evidentiary and exception hearings were held in conjunction with the Broadgauge Ditch Company, Fruitvale Schanno Irrigation Company, New Schanno Ditch Company, R.S. & C. Irrigation Company, Inc. and Old Union Irrigation Company (ditch companies). The City of Yakima elected to pursue settlement of its water rights. Thus, a separate determination of the water rights for the ditch companies CITY OF YAKIMA SUPPLEMENTAL REPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 will occur through a Supplemental Report, Volume 40A, Part II. II. NEGOTIATIONS AND SETTLEMENT Adam W. Gravley and Matthew D. Welts, attorneys,' represented the defendant City of Yakima. Alan M. Reichman, Assistant Attorney General, represented the plaintiff Ecology. Charles R. Shockey, attorney, represented the defendant United States. Jeffrey S. Schuster and Deborah Fiander, attorneys, represented the defendant Yakama Nation. Subsequent to the exception hearing, the City of Yakima entered into negotiations to settle its water rights. Yakima, Ecology and the United States (Settling Parties) reached a settlement and stipulated to Yakima's water rights. The Settling Parties offered the Stipulation (Document 16,136) to the Court on August 2, 2002. All parties to this adjudication were provided an opportunity to comment on or file objections to the Stipulation via the September 2002 Monthly Notice (No. 214). The City of Yakima also served the attorneys of record with a copy of the proposed stipulation. The Yakama Nation filed objections and a request for clarification to the Stipulation. The Settling Parties responded, and included language in a proposed Conditional Final Order to address the objections and request for clarification of the Yakama Nation. With that language included, the Yakama Nation does not object to entry of the proposed Conditional Final Order. On November 14, 2002, the Court held the evidentiary CITY OF YAKIMA SUPPLEMENTAL REPORT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hearing on the Stipulation. III. CONCLUSION The Court hereby accepts the Stipulation as offered. The Stipulation is attached to this Supplemental Report. This constitutes final determination of the rights of the City of Yakima. The Conditional Final Order for the City of Yakima is included herein. ��77 St `~ DATED this � - day of ep Attached: Stipulation CITY OF YAKIMA SUPPLEMENTAL REPORT , 2002. //t) , WALTER A. STAUFFAC R, JUDGE 1 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ?4 25 i_+ 5 2002 AUG" - 2 2002 Departmeni.ot Ecology IN THE SUPERIOR CdCJR' `fdF TIS' 5 ATE OF WASHINGTON IN AND FOR THE COUNTY OF YAKIMA IN THE MATTER OF THE DETERMINATION OF THE RIGHTS TO THE USE OF THE SURFACE WATERS OF THE YAKIMA RIVER DRAINAGE BASIN, IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER 90.03. REVISED CODE OF WASHINGTON STATE OF WASHINGTON DEPARTMENT OF ECOLOGY, Plaintiff, v. JAMES J. ACQUAVELLA, et al.. Defendants. No. 77-2-01484-5 STIPULATION RE: CITY OF YAKIMA CLAIM NO. 2110 The State of Washington Department of Ecology ("Ecology"), the United States ("US"), and the City of Yakima ("City"). after extensive Court -approved facilitated negotiations and mediation. hereby respectfully submit this Stipulation Re: City of Yakima Claim No. 2110 ("Stipulation") to resolve Claim No. 2110. The parties request thAt the Court include the water rights identified herein in a Conditional Final Order and Final Decree for the City of Yakima as adjudicated water rights. Attached is the STIPULATION - 1 PRESTON GATES & ELLIS LLP 701 FIFTH AVENUE SUITE 5000 SEATTLE. WASHINGTON 68104--7078 TELEPHONE (2061623-7c80 F 4CSI5-1ILE. 12061623-7022 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 24 25 Declaration of David E. Brown in Support of Stipulation R:- City of Yakima Water Right Claim No. 2110. which the parties request be admitted as Exhibit COY 103. This Stipulation is supported by the contemporaneously -tiled Joint Memorandum in Support of Stipulation Re: City of Yakima's Water Rights Claim No. 2110. 1. CITY OF Y AKIM A WATER RIGHTS. To be decreed in the name of the City of Yakima the following water rights: a. "Old Union" Water Right. i. Quantity (acre-feet) STIPULATION - Total quantity applied to beneficial use is 5.585 acre-feet. ii. Diversion Rate (cubic feet per second. "cfs'') April 1 through August 31 — 17.73 cfs September 1-30 — 11.82 cfs October 1-15 — 8.87 cfs iii. Purpose of Use Municipal suppi iv. Priority Date June 30. 1878. v. Point of Diversion Nelson Bridge. 1.790 feet south and 1.600 east from north« est corner of Section 9. being, within the SE 'A NW Y of Section 9. Township 13N. Range 18 EWM. PRESTON GATES 8 ELLIS LLP -01 FIFTH AVENUE SUITE ;OOO SEATTLE. WASHINGTON )8104-70:9 TELEPHONE 1205)o:3 -749O F ACSINIILE 3 4 5 6 7 8 9 10 11 12 1; 14 15 16 17 18 19 20 ?1 23 24 STIPULATION - vi. Place of Use City service area as of the date of this Stipulation. as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the 'A I section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use. vii. Period of Use Apnl 1 through October 15. 4111, b. "Glaspey" Water Right. i. Quantity (acre-feet) Total quantity applied to beneficial use is 945 acre-feet. 1i. Diversion Rate April 1 through August 31 — 3 cfs September 1-30 — 2 cfs October 1-15 — 1.5 cfs iii. Purpose of Use Municipal supply. iv. Priority Date April 1. 1869. PRESTON GATES 3 ELLIS LLP -01 FIFTH AVENUE SUITE :000 SEATTLE. \1ASHINGTON )SIO4.707S -3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 24 25 v. Point of Diversion Nelson Bridge. 1.790 feet south and 1.600 east from northwest corner of Section 9. being within the SE 1/4 NW 1/4 of Section 9. Township 13N. Range 18 EWM. vi. Place of Use City service area as of the date of this Stipulation. as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the 1/4 I/4 section legal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use. vii. Period of Use April 1 through October 15. c -10 cis" \Vater Right. i. Quantity (acre-feet) Total quantity applied to beneficial use is 7.260 acre-feet. ii. Diversion Rate 10 cfs iii. Purpose of Use Municipal supply. iv. Priority Date June 30. 1902. STIPULATION - 4 PRESTON GATES & ELLIS LLP 'nI FIFTH AVENUE SUITE 5006 EAT'TLE. WASHINGTON 98I04-7075 TELEPHONE 1_00)6_3-'S0 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 7^ 24 75 v. Point of Diversion Naches River Water Treatment Plant (also known as the Roe Hill or Gleed Plant). 900 feet north 64° 20' east of the southwest corner of Section 13. being within the SW 1/4 SW of Section 13. Township 14N. Range 17 EWM. vi. Place or Use Cit\ service area as of the date of this Stipulation, as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the !'a 1/4 section legal descnption attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use. vii. Period or Cse Januar\ 1 through December 31. d. "1951 Off Season " Water Right. i. Quantity (acre-feet) Total quantity applied to beneficial use is 4.414 acre-feet. subject to the combined Quantity limitation set forth in Paragraph 2(viii) below. ii. Diversion Rate 29 cfs STIPULATION - 5 PRESTON GATES & ELLIS LLP -01 FIFTH AVENUE SUITE c000 SEATTLE. WASHINGTON ,1814-7078 TELEPHONE_(Me e2;-7<an 3 4 5 6 7 8 9 10 11 1? 13 14 15 16 17 18 19 20 21 24 25 iii. Purpose of Use Municipal supply. iv Priority Date January 29. 1951. v. Point of Diversion Taches River Water Treatment Plant (also known as the Rowe Hill or Gleed Plant). 900 feet north 64° 20' east of the southwest corner of'Section 13. being. within the SW I SW !/s of Section 13. Township 14N. Range 17 EWM. vi. Place of Use City service area as of the date of this Stipulation. as set forth on the City Service Area Map attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the V., section 1er.zal description attached hereto as Exhibit B and incorporated by reference herein. Exhibit A shall control as to place of use. vii. Period of Use October 16 to the beginning of storage control. as determined b\ the US Bureau of Reclamation. 2. US/CITY WATER RIGHTS. To be decreed in the name of the United States of America on behalf of the City of Yakima. a Bureau of Reclamation contract water right ("Reclamation contract water right") sufficient to permit diversion for STIPULATION - 6 PRESTON GATES S ELLIS LLP '01 FIFTH AVENUE SUITE 5000 SEATTLE. V. A SHINGTON '1510.-70-3 TELEPHONE. 1:00) o23-;'30 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 24 25 beneficial use of: Quantity (acre-feet) Total quantity applied to beneficial use is 5.083. of which a maximum of 3.583 acre-feet may be diverted at the Naches River Water Treatment Plant and a maximum of 1.500 acre-feet may be diverted at Nelson Bridge. subject to the combined quantity limitation set forth in Paragraph 2(viii) below. ii. Diversion Rate 29 cfs at the Naches River Water Treatment Plant diversion point. 6.2 cfs at the Nelson Bridge diversion point. iii. Purpose of Use Municipal supply. iv. Priority Date May 10. 1905. v. Points of Diversion Nelson Bridge. 1.790 feet south and 1.600 east from northwest corner of Section 9. being. within the SE !14 NW v of Section 9. Township 13N. Range 18 EWM. at which a maximum of 1.500 acre-feet may be diverted. STIPULATION - 7 Naches Ri'er Water Treatment Plant (also known as the Rowe Hill or Gleed Plant). 900 feet north 64° 20' east of the southwest corner PRESTON GATES & ELLIS LLP '01 FIFTH AVENUE SUITE '000 `SATTLE, \1ASIIINGTO\ 98104-707S TELEPHONE 120b1 623-1,80 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 24 25 of Section 13. being within the SW I; SW /4 of Section 13. Townsnip 14N. Ranee 17 EWN1. at IAhich a maximum of 3.583 acre-feet may be diverted. vi. Place of Use Cit\ service area as of the date of this Stipulation. as set forth on the City Service Area Jap attached hereto as Exhibit A and incorporated by reference herein. The City service area is located within the 1/4 1/4 section legal description attached hereto as Exhibit B and incorporated 'bv reference herein. Exhibit A shall control as to place of use. vii. Period of Use The beginning of storage control. as determined by the US Bureau of Reclamation. through October 15. Combined Quantity Limitation. The maximum combined quantity that the City may divert in any single caiendar year under the 1951 off-season water right described in Paragraph 1.d and the portion of the Reclamation contract water right diverted at Naches River Water Treatment Plant is 7.826 acre-feet. The maximum combined quantity provision in the foregoing sentence does not not apply to the portion of the Warren Act contract water right diverted at Nelson Bridge. STIPULATION - S ?RESTON GATES & ELLIS LLP .01 FIFTH AVENUE �L'ITE 1000 ',CATTLE. \SHINGTON TELEPHONE 1=061 b23-7 O 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 Declaration of David E. Brown in Support of Stipulation Re: City of Yakima Nater Right Claim No. 2110. the City of Yakima intends to undertake a water system improvement project in reliance on this Conditional Final Order. Accordingi. the Court finds that the City would be prejudiced by any delay." 8. CONCLUSION The opinion of the parties is that this Stipulation for the City of Yakima will save the parties and the Court significant time and expenses that would be necessary to litigate the complex issues regarding municipal water rights and other related water issues for City of Yakima. It also promotes judicial economy and will likely shorten the Acquavella litigation. DATED this day of July. 2002. STIPULATED AND AGREED TO. ADAM W. GRAN/LEY. WSBA 220343 Preston Gates & Ellis LLP Attorneys for City of Yakima a ALAN M. REICHMAN. WSBA :z23874 Assistant Attorney General Attorneys for Plaintiff State of Washington Department of Ecology K /25739/00025/AWG/AWG_P20XZ.DOC STIPULATION - 12 CHARLES R. SHOCKEY. D C Bar Y 914879 U. S. Department of Justice Environmental & Natural Resources Division Attorney for United States of America PRESTON GATES & ELLIS LLP -r I FIFTH AVENUE SUITE 5000 SEATTLE. \>, OSHINGTON 98104-7075 1 3 4 6 7 8 4 10 11 12 13 14 15 16 17 18 19 20 21 3. SCOPE OF STIPULATION This Stipulation applies only to City of Yakima Claim No. 2110. and it is not intended to address or resole any other water nght claims or issues. This Stipulation, or other writings evidencing the agreement of the parties. is not intended to be an admission as to any legal or factual issue and is not intended to waive or concede anv legal arguments in this case or anv other case. Accordingly. the parties hereto withdraw their exceptions to Claim No. 2110. This Stipulation does not address. resolve, or waive the arguments of any Party concerning 1) City of Yakima Claim No. 0675 regarding the Yakima Airport water rights in the Ahtanum subbasin. or 2) the City's "Oak Flats" water right certificate No. 938-D that is the subject of Yakima County Water Conservancy Board No. 11-2000 (May 31, 2000), Ecology modification and approval (August 14. 2000), and the City's letter to the Court dated March 13. 2002. 4. WRITTEN AGREEMENT In addition to this Stipulation. the parties hereto have entered a full written agreement incorporating the terms in Paragraphs 1 and 2. above. and additional provisions between the parties including oluntary diversion reductions. Because some of the provisions of the agreement may be beyond the interest or jurisdiction of this Court. the parties are not asking the Court to approve the agreement. A copy of the agreement is ,3 separately provided only for the Court's information. The agreement itself is not intended 24 to affect any non -signatory party. 2� STIPULATION - 9 PRESTON GATES & ELLIS LLP "0I FIFTH AVENUE SLITE .r{4 SEATTLE. WASHINGTON •I8he14-7078 TELEPHONE GCcie23So 3 4 5 6 7 8 9 10 11 1? 13 14 15 16 17 18 19 20 21 5. REVOCATION OF STIPULATION If for any reason the Court rejects. modifies. amends. or alters this Stipulation or fails to adopt a Conditional Final Order with these terms on the water rights for the City, the individual parties retain the right to re\ oke or rescind this Stipulation. provided that any such revocation or recission shall not affect in any way the validity of the concurrent agreement. In the event of a revocation or recission. this Stipulation and any issues contained herein shall not be an admission as to any legal or factual issue nor wane any argument of the Parties. and no Party shall argue tat- it constitutes any such admission or waiver. 6. REQUEST FOR EYPEDIT1D. CFO FOR THE CITY WATER RIGHTS The parties respectfully request that the Court expedite the issuance of a Conditional Final Order for the City's water rights in Claim No. 2110 consistent \with the elements outlined in Paragraphs 1 and 2 of this Stipulation. 7. REQUEST FOR CFO AS FINAL ORDER FOR PURPOSES OF APPEAL The parties respectfully request that the Court issue the Conditional Final Order for the City's water nghts in Claim No. 2110 as a final order for appeal pursuant to Civil Rule 54(b) and`Rule of Appellate Procedure 2.2(d). The parties respectfully request that the Court expressly determine. in the 24 Conditional Final Order. that there Is no just reason for delay of appeal and make 25 supporting specific findings. including the following: STIPULATION - 10 PRESTON GATES & ELLIS LLP "01 FIFTH AVENUE SUITE 5000 SEATTLE. WASHINGTON n9104. -n -s TELEPHONE. i]06102,- 7,50 1 "The claims adjudicated by this Conditional Final Order are separate and discrete claims apart from the remaining. ' multiple claims in this case. The claims adjudicated by this 4 Conditional Final Order are asserted by one of the multiple patties to this proceeding and are less than all of the 6 7 multiple claims of other major claimants and other parties. g Numerous claims remain unadjudicated in the proceeding. 9 and any appeal from this Conditional Final Order is unlikely 10 to delay trial of unadjudtcated matters. The claims that 11 would be reviewed on any appeal from this Conditional 12 Final Order are not likely to be rendered moot by the 13 14 continuing proceedings before this court. As a practical 15 matter. an immediate appeal of this Conditional Final Order 16 will likely prevent a waste of judicial resources and prevent 17 a waste of resources for the parties to this case. Absent 18 separate appeal of this Conditional Final Order. the parties 19 and the Court will be involved in a single appeal of 20 numerous. separate. discrete and diverse claims from 21 separate hearings. A combined appeal of all such claims at 13 the end of the adjudication will be unwieldy and 24 unmanageable and result in substantial waste of judicial 'o resources and the resources of the parties. As stated in the STIPULATION - I 1 PRESTON GATES & ELLIS LLP -01 FIFTH AVENUE SUITE 5000 SEATTLE. WASHINGTON .8104-7078 TELEPHONE 1_0616_23-7580 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Declaration of David E. Brown in Support of Stipulation Re: City of Yakima Water Right Claim No. 2110. the City of Yakima intends to undertake a water system improvement project in reliance on this Conditional Final Order. Accordingly. the Court finds that the City would be prejudiced by any delay. - 8. CONCLUSION The opinion of the parties is that this Stipulation for the City of Yakima will save the parties and the Court significant time and expenses that would be necessary to litigate Alo the complex issues regarding municipal water rights and other related water issues for City of Yakima. It also promotes judicial economy and will likely shorten the Acquavella litigation. DATED this 3 ' day of July, 2002. STIPULATED ANDAGREED TO: ADAM W. GRAEY. \ Preston Gates & Ellis LLP Attomevs for City of Yakima ALAN M. REICHMAN. wsBA =23874 Assistant Attorney General Attorneys for Plaintiff 24 State of Washington Department of Ecology 25 K.25739/00025/AWG/AWG_P20XZ.DOC STIPULATION - 12 eL,‘„ CHARLES R. SHOCKY. D C. Bar 4 914879 U. S. Department of Jus ice Environmental & Natural Resources Division Attorney for United States of America PRESTON GATES & ELLIS LLP '01 FIFTH AVENUE SPITE 5000 SEATTLE. WASHINGTON 88104.7075 TFI FPN(1VP 1'OM ,'1.7c80 •^,. r a..,„,, ' M I 1 3 30 1 City of Yakima Place of 326 Tom` I 1. Use Page 1 of 5 28 uuw .c.s+. a c 1 33 E.W.M. _ , ....wwe.w..e i Place of Use 4+, •' +c 3 d _ `we•�... _ 31 Township • .w..., I 1 1 32 14N Rgnge 18 --- 2 _ l 6 Township 13N 5 ---- Range 18,E.W.M. 4 a..a.,.. t J--�.. • i ,� 1 ....011•1.0.1.11 i I NM S10 in .. N Place of l/se \....... . -- , ! City of Yakima Place of Use --- Page 2 of 5 1 1 ...... -- . 12 — ........._ _7 _ ....._m. _ / ..... , , ,./1 • .4, ___ ,....-_:......,.., , ..... _. E , —.,....._- ,t• _i ' I I .. I ....s‘..\ Li. 1 ! .____ ..- ,,. 1,E i! ' I!i!;, .i!. i,! •, '' _ 4 iI Pan.••••......... -. , , - I r --. I. t. ! ! --. __ I • --' , ....re -- I f 1 ...... . 1 1 : .." 1 [ i . . ....- — I. • 1 I ; _.., ... ; ...--... S., 1 A i ' e .... I I, /. • i; __, , _.. I: _ - I ._ - I I 'pi 1-4N 1 I .-- -- 1 k.A. , I ; .— It .i ---__ litange 1B,E.W.M-. . — - II: i 1---- 1 ; - .• 01.0.1 : 1 I • ; • I ; 1 ' . ; .—_; : • '. - ,.. _ "' "'" _ _ , II; ... „..... „.....,.., _._ ___, . • ' •P''''' An i ; . t.... . 1 ... ...^• .'-_- "'•" • . i . . '.2----4 - . s , i, : , , . • ._. ' llownshir r 1 i 1 e.-- . ! ' .-........ t _ L. ! !: ! I' l: I l' , I I. r , T-oiwns i , ., ! . i. • , 11 1 2 �� '. _ f Yakima Place of Use 7 Page 3 of 5 ( �� — | _ �` | �� -- | | | '� | � � � �� + ' -/ . ' | [ � �• _- | |- | i -- � � � � -- -- ' [ , � 5 ~~.~�~ -- | -- -- || | �- � | __ ' �--�--• -- -- .�`� - -�| \ -- _- 1~ ' | � [ | _ ' 1-_,., i' � \ | ' -_ `~^ - \� � ~ ` •` ~ � ` ' i ~ '-��' ~~��' l--- ' ~'- \! ' \ ��^�'| i �:� �� i ` ' ^' ' \ -~ . • � _~� \ \ ` `- p13NRm�n�1G.E)�/W1 ,,.�.. �"- /.' � � \ • ! ----- ! F � -- -- ' ! � ` -- -- "�� ! ' �� \--' ' ' _ ' _ , __ i 1 I. ! _ � / [ ' �~. ! Use ' ��` | I. � � __� --` \__ I. � / / ' . ` --- ! \ � � __ /~- i , /~ ~,~~ -� �. ~ / ( __ -- . ~` .`--' -- -- \` MAO ~~�~ --' � ; � x ' ~~� --- �� '-- || | | --�_ -- 8�8��' __~ | � - | y \ .�_ -- � ' � |! i � �J') | � ' ~~" ' -- � / -- -- --'- 1U ',�--, —/ ' _~~ < | 1• ' �� ~~~�^~ — I. �. ~~~^~ � - .-' _ ( ' ^ I. -- --- -- �� .' --'l [ -- � � ^ ~ I. ` . � ^ .�~ ' ' ' / � � ^ 24 - -�^ ~° \ '~ \ \ .. \ �� ' `+ � \ \ \ ' . ' - / -- / | | [| !''----` , 11.171.1 01,9 Place of Use .1.1.411/0010“ AVM __ _city of Yakima Place of 6ge J 2V | 1 | | |:---- / ) | - ' -- | F r— �-||/ / ,. . -.'- i `�-_r-' - /!!! ..„. 34 |||� 2-5 toi-inshipt Range is'p'yv./ y ' ( s �� - �u !-- �� ! Township 12NRange 18.E.VV.W1. |; � | . ; 1 1 1 1 1. 1 _ r , t 1 ! 1 1 ' 1 1 ! t i , I I. u t 1 1. ! 1: I I. , 11.0"11.11,14,1. ! .., 26 — ,-= I ! 1 . 25. : „! , : 30 i .1: ! -- 1; , . -- f [ 1 11 i , - 1111 , • ' : I • . „- „ !- I ! i Hill — Tointi-Olipb 13N Ranzet 18,E.W.M. I 1---- 35 :p 136- - -- 2 I Townshi - 31 111••••••••'TIM 1: 12N Range 18,E.W.M. AP11111•11.11111 of Yakima PlacEbf Use P • 860•101.4. KV. --29 e 5 of 5 28 2 ' D Place of Use 33 4-E Exhibit B City of Yakima 1/4 Section Legal Description An asterisk (*) denotes a legal subdivision that is only partially within the City's place of use. The Service Area Map (Exhibit A) is controlling as to place of use. T. 12 N. R. 18 E.W.M. Section 1 Section 2 * Gov Lot 4(from * NW 1/4 NW `/4), * SW 1/4 NW 1/4 * Gov Lot 1(from*NE1/4NE1),*SW'/4NW1/,*SEi NW/ * SW 1/4 NE 1/4, * SE 1/4 NE 1 . Gov Lot 4 (from NW 1/4 NW 1/4), Gov Lot 3 (from NE 1/4 NW 1/41. Gov Lot 2 (from NW 1/4 NE 1/41. Section 3 * Gov Lot 2 (from * NW 1/4 NE 1/4). * SW 1/4 NE ',4. * SE 1/4 NE 1/4. and Gov Lot l(from NE 1/4 NE 1/4) T. 13 N. R. 18 E.W.M. Section 4 * SW 1/4 SW' Section 5 * Gov Lot 2 (from * NW '4 NE /), * SW 1/4 NE 1j4, * NE i SE' /4, * SW 1/4 SE'/4,and * SE'/4SE'/4 Section 9 *SW'/4NE'/4.* NW'/4SE''4.*NE'/4SE'/4,*SW'/4SE'/4,and SE 1/4 SE 1/4 Section 10 * NW 1/4 SW 1/4, *-SE 1/4 SE',';. * SW 1/4 SE 1/4, * SE 1/4 SW 1/4, and * SW 1/4 SW 1/4 Section11 *NE 1/4SE1/4,*SE'/4SE'/4.*SW1/4 SE'/4,*SE1/4SW'/4, and* SW 1/4 SW 1/4 Section 12 * NW 1/4 SW 1/4, * NE 1/4 SW 1/4. * NW 1/4 SE 1/4, * NE 1/4 SE'/, and S'/2 S'// Section 13 All I Section 14 All Section 15 All ' Section 16 *NW'/4NE'/4.* SE'/4NE'.'4.*SW'/4NE`/4.*NW'/4SE'/4.* SWi/4SW'/4.*SE'/4SW/.*SW1/4SE'/4.NE/4 NE 1/4. and E'/ SE '/4 Section 21 * NW 1/4 NW 1/4. * NE 1/4 NW 1/4, *NE 1/4 NE 1/4. * SW 1/4 NW '/. * SE 1/4 NW 1/4. * SW 1/ NE 14. and * SE 1/4 NE 1/4 Section 22 *NW`/4NW'/4.*SW'/4NW'/4,*NW'1SW'/4.*NE'/4SW;'4, *SW 1/4 SW 1/4. E1/2. NW 1/4, E;/. and SE'/ SW 1/4 Section 23 All Section 24 All Section 25 All Section 26 All Section27 *NW'/4NW%4,*SW'/4NW'/4. *NW '/4SW'/4,* NW' /4 SE 1/4, * SW 1/4 SW '/4. * SW' 1/4 SE 1/4. E'/ NW 1/4. NE 1/4, and E'/ SE 1/4 Section 34 * NW 1/4 NE 1/4. * SW 1/4 NE 1/4. E; NE 1/4, and E'/ SE ',4 Section 35 All Section36 *NW'/4SW'/4,*NE'/4SW'/4,*NW '/4SE;'4,*SW 1/4 SW 1/4, *SE 1/4SW1/4, N'/ T. 13 N. R. 19 E.W.M. Section 7 *NW'/4SW1/4.*SW'/4 SE`//.*SE'1SW'/4.and SW1/4SW'/4 Section 17 * SW '/4 SW 1/4 Section 18 *NW'/4NE'/4.*SE/4NE14,*NE1SE14.NW`/4.SW'/4NE '/4,SW'/4.NW'/4SE!'4.and S'/ SE 4. Section 19 ! All Section 20 * NE 1/4 NW '/. *NW !/4 NE 1/4. *NE " 4 NE 1/4, * SE 1/4 NE 1/4, *NE /4SE'/4.*SE`/;SE4.S/NW'/s,SW'/;NE`/4.SW'/3.and W'4 SE /. Section 28 *SW'/NW'/4.*NE!/4SW'i4.*SW14SW'/4.*SE'/4SW1/4, and NW'/aSW'/3 Section 29 All of Section 29 except a portion of * NE 1/4 NE 1/4 (NE / NE '/a partially covered) Section 30 All Section 31 *NW`/4SW`/s.*NE1SW'/s,*NW1SE'/4.*SW'/4SE'/a,* NW 1/4 SW 1. NA. and E1A SE 1/4. Section 32 i * NE 1/4 NE 1/4. * SW 1 NW `,/4. * SE 1/4 NW 1/4. * SE 1/4 NE 1/4, * NE 1/4 SW 1/4. * SE 1/4 SW '/4.and NW " SW 1/4. Section 33 * NW 1/4 NW '/4. and * SW '/ NW 1/4 T. 14 N. R. 18 E.W.M. 1 Section 29 i *NW'/4SW'/4.and * SW 1/4 SW 1/4. Section 30 i * Gov Lot 3 (from * NW 1/4 SW 1/4), * NE 1/4 SW 1/4, and * SE 1/4 SW 1/4 Section 31 * NW 1/4 NE 1/4, * NE 1 NE /, * SW %s NE 1/4, * SE 1/4 NE 1/4. and *NE 1/4SE1/4. Section 32 * NW 1/4 NW 1/4. * SW 1/4 NW 1/4. and * NW 1/4 SW 1/4 City of Yakima 129 N 2❑d St Yakima WA 98901 WASHINGTON STATE DECPAROT NLOE NT GY OF E . '9:9tapp; • wTS ' STATE OR:WASHINGTON . ASHINGTON SUPERSEDING CERTIFICATE OF WATER RIGHT Supersede Certificate I ,o�` S4-01141 C issued January 6, 1975 TliiVdtidOi nt is issued concurrently with Surface Water Permit No. S4-01141P(B). Document Title: Supersedmg Certificate of Water Right Agency: Department of Ecology Central Regional Office 15 W. Yakima Avenue, Suite 200 Yakima, WA 98902 Reference Number: Applicant: City of Yakima 129N2"d St Yakima WA 98901 cte o17 PRIORITY DATE APPLICATION NUMBER PERMIT NUMBER CERTIFICATE NUMBER January 29, 1951 10095 9006 S4-01141C(A) This is to certify that the herein named applicant has ,rade proof to the satisfaction of the Department of Ecology of a right to the use of the public waters of the State of Washington as herein defined, and under and specifically subject to the provisions contained in the Permit issued by the Department of Ecology, and that said right to the use of said waters has beenperfected in accordance with the laws of the State of Washington, and is hereby confirmed by the Department of Ecology and entered of record as shown, but is limited to an amount actually beneficially used. PUBLIC WATERS TO BE APPROPRIATED SOURCE Naches River TRIBUTARY OF (IF SURFACE WATERS) Yakima River MAX. CUBIC FEET PER SECOND 29 MAX. GALLONS PER MINUTE MAX. ACRE-FEET PER YEAR 4414 QUANTITY/TYPE OF USE/PERIOD OF USE For municipal supply from October 16 to the beginning of Yakima Project storage control, as determined by the US Bureau of Reclamation. LEGAL DESCRIPTION OF LOCATION OF DIVERSION/WITHDRAWAL 1/4 1/4 SWE/4SWY4 SECTION 13 TOWNSHIP N 14 RANGE (E. OR W) W.M 17 E W R.I.A. 38 COUNTY Yakima PARCEL NO 17141399999 LEGAL DESCRIPTION OF PROPERTY ON WHICH WATER IS TO BE USED 1/4 1/4 SECTION TOWNSHIP N RANGE (E. OR W ) W.M W R LA. COUNTY See attached map and legal description. ADDITIONAL LEGAL IS ON PAGE 2 111111111111111111111111111111 Z250108:28R 509CITY°OF' YAKIMA WTR $27,00 YakiYakix5 0 Yakima Co, WA I _ J CONTINUED LEGAL DESCRIPTION FOR LOCATION OF DIVERSION/WITHDRAWAL Naches River Water Treatment Plant diversion, approximately 900 ft N 64° 20' E from the SW corner Section 13 (aka Rowe Hill or Gleed Plant) CONTINUED LEGAL DESCRIPTION FOR PROPERTY ON WHICH WATER IS TO BE USED See attached map and legal description. PROVISIONS All conditions and requirements contained in reports of examination or permits previously issued apply to this certificate unless specifically noted below. Screening of the diversion intake shall be maintained in accordance with applicable law of Department of Fishenes and Wildlife. No dam shall be constructed in connection with this diversion. This nght and the portion of the US Bureau of Reclamation Contract No. 14-06-W53 dated December 12, 1952, as amended on December 10, 1965, water right diverted at Naches River Water Treatment Plan have a combined maximum annual quantity of 7826 acre-feet per year. It is intentional that the combined total is less than the sum of the individual maximum annual quantities. The right to use of the water aforesaid hereby confirmed is restricted to the lands or place of use herein described, except as provided in RCW 90.03.380, 90.03.390, and 90.44.100. Given under my hand and the seal ,, 4 e at Yakima, Washington, this 12th day of May 2005 4441%01111 0 p It N)pee 0. 6-0 4! W gyp? Jay J. Manning, Director ENGIN RING DATA OK ECY 040-1-2 (Rev 8-97) 4;11. 0.**F.:* ...................... 11141111111001 Attachment: Map & Legal Description Department of Ecology By n, -ction anager 7454555 05/1812005 088,28A CITY OF YRKIMA WTR $27,00 Yakima C Exhibit A 1111 1E1111111101 111111111111111111 =----_--- Page: 4554 9 95/18/2095 98:2811 CITY OF YAKIMA WTR 527,90 Yakima Co, WA ..--i-----„,--- --' -1-, , i 1 t„ f / - - - . ..._- ti! \ ` \*-5\ \1;C} ``\ iI —1111,1% „ • \ .�)\tet' ',;:•,`'; ` 11. '1j1i1 \ , `\\ \` 1 '\%\\:\\.\\C'...\\,‘„\,\\;,,t` \\\ II `+ , :�'.f , ,;•:;‘1.‘‘';\ .\t ; `, \ _ !'1. \ .� . \ s"‘' � I�I I1iI� ` " owaship\13N,Ra�ge 10i,E.W \'\\ ri. ' l l �� -! 1 '� •111 `I I •I I I t i�''I ��_ � �„ I i �� i• _, i ... - P ..w _- I I..-.`... , • t ` 2 7 1 City of Yakima Place of U r • 1 l,' se Page 3 of 5 X1 1:717.7:_17.71 i 1 — - 2 .1, -', m- --, z i Q Place of Use I ' \! I l :1dill I II `,• - ---t .... f ££ / F �'ti- T.--.1 1 - 1 11 .iv1,.1-,_t- A 1111 11 11 1 11 C TY OF YAKIMA WTR 11 7454555 Page, 4 of 9 05/18/2005 08 28A $27 00 Yakima Co, WA ==--i--r-=---- -- .: _!Y.1_.Y -_. -_ � I -[T-._ - � •;, _ _... - 1 N 'yam w*E _ s QPlace of Use N--- I_ -_ I,,-./ I\ `' _am --I I City of Yakima Place of Us 10 ` 4 - - 1--- / CII ._.- --.a., ! 11 ,•..1.�_-.! I.„_ ----l--s --_., -r 3-=---.�n.�-- I itl _..._1 n ___---_______III Page 2 of 15 1 a =- -. •__ ___ =- - 1 : ( 1 I --1-- - _— _-I �- a 1 I _ ! !_ 1 =r,-;::::_-...--:-.: rr • i _ moi- %i 'i `moi ”' _ - -- - CITY OF YAKIMA 11 11 1111 11 I 0 111 1 11 7454555 Page: 5 of 9 05/18/2005 08 28A WTR X27.00 Yakima Co, WA � Exhibit-_ 2� \11111110111111111\ CITY OF YAKIMR WTR $27.00 Yaximo Co, 'm .` � . T i 1-- ^ _— --' 1 e.--'-1 ' ' ..--- e ___ 6 \, , Townshiri 13t v ._.7' (}) _-I . _. | _---_ ' ' __��~~- .__--- .~ [ CO '~^~ 0 -______,.., 5 . }1 Range 18,EW M. 32 ! 1 hip 14N Rfige 18 City of Yakirna Place of - , 2 3 ,c e a Ti / - - |'. E -- �� : . '`='. .4::. ^ . ••=_=_._ '~_- ' ==_-- . = ---- \ -- '_--- - - ise Pae 1 of 5 28 -,.,.___ . ^ �. -----i ~ = -7��- v ~ � | / -----'----- ___ ilT Q ° _�_ ��e ,— TEr � Exhibit-_ 2� \11111110111111111\ CITY OF YAKIMR WTR $27.00 Yaximo Co, 'm 11 1 11111 C TY OF YAKIMA Exhibit A 1 011101 OII 110 II 11 7454555 Page: 7 of 9 05/18/2005 0828A WR $27.00 Yakima Co, WA , Exhibit 13 City of Yakima 1/4 1/4 Section Legal Description An asterisk (*) denotes a legal subdivision that is only partially within the City's place of use. The Service Area Map (Exhibit A) is controlling as to place of use. T. 12 N. R. 18 E.W.M. Section 1 * Gov Lot 4(from * NW 1/4 NW '/4), * SW 1/4 NW '/4 Section 2 * Gov Lot 1(from * NE 1/4 NE '/4), * SW 1/4 NW 1/4 , * SE '/4 NW 1/4 , * SW 1/4 NE 1/4, * SE 1/4 NE 1/4 , Gov Lot 4 (from NW 1/4 NW 1/4), Gov Lot 3 (from NE 1/4 NW 1/4), Gov Lot 2 (from NW 1/4 NE 1/4), Section 3 * Gov Lot 2 (from * NW 1/4 NE '/4), * SW 1/4 NE 1/4, * SE 1/4 NE'/, and Gov Lot 1(from NE 1/4 NE '/4) T. 13 N. R. 18 E.W.M. Section 4 * SW 1/4 SW 1/4 Section 5 * Gov Lot 2 (from * NW 1/4 NE '/4), * SW '/4 NE 1/4, * NE '/4 SE '/4, * SW'/SE%,and *SE%4SE'/ Section 9 * SW 1/4 NE '/4, * NW 1/4 SE %, *NE '/ SE 1/4, * SW 1/4 SE 1/4, and SE 1/4 SE '/4 Section 10 * NW'/ SW 1/4, * SE'/ SE 1/4, * SW 1/4 SE 1/4, * SE 1/4 SW 1/4, and * SW '/4 SW '/ Section 11 * NE 1/4 SE 1/4, * SE 1/4 SE 1/4, * SW % SE 1/4, * SE'/4 SW 1/4, and * SW '/4 SW 1/4 Section 12 * NW'/ SW'/, * NE 1/4 SW'/, * NW 1/4 SE 1/4, * NE 1/4 SE'/, and S%z S% Section 13 All Section 14 All Section 15 All Section 16 * NW %NE'/, * SE'/ NE'/, * SW'/ NE 1/4, * NW 1/4 SE'/, * SW'/ SW 1/4, * SE%SW'/4, * SW'/ SE'/4,NE'/4NE%, and E1/2 SE 1/4 Section 21 * NW 1/4 NW 1/4, * NE 1/4 NW' /4, *NE 1/4 NE 1/4, * SW '/4 NW %, * SE 1/4 NW'/, * SW'/NE'/,and * SE 1/4 NE'/ Section 22 * NW '/ NW '4, * SW '/ NW '/, * NW'/ SW 1/4, * NE 1/4 SW '/, *SW '/ SW 1/4, E''/z NW '/, E1/2, and SE 1/4 SW 1/4 Section 23 All Section 24 All Section 25 All Section 26 All Section 27 * NW 1/4 NW 1/4, * SW '/4 NW 1/4, *NW '/4 SW 1/4 , * NW 1/4 SE 1/4, * SW 1/4 SW'/, * SW'/ SE'/, E'/2 NW'/4,NE'/4, and E'/i SE'/ Section 34 * NW 1/4 NE'/, * SW '/4 NE' /4, E'h NE 1/4, and E'/ SE' /4 Section 35 All Section 36 * NW 1/4 SW 1/4, * NE 1/4 SW 1/4, * NW 1/4 SE 1/4, *SW 1/4 SW 1/4, *SE 1/4 SW 1/4, N'/2 11 11 1111 C TY OF YAKIMA 11 111 1 11 III 1 11 7454555 Page. 8 of 9 05/18/2005 08.28A TR $27.00 Yakima Co, WA T. 13 N. R. 19 E.W.M. Section 7 * NW 1/4 SW 1/4, * SW / SE `/, * SE 1/4 SW 1/4, and SW 1/4 SW 1/4 Section 17 * SW '/4 SW 1/4 Section 18 * NW 'INE 1/4, * SE 1/4 NE'/, * NE-'/ SE'/, NW 1/4, SW 1/4 NE'/, SW '/4, NW 1/4 SE '/4, and S'/2 SE '/4, Section 19 All Section 20 * NE 1/4 NW '/4, *NW 1/4 NE 1/4, *NE 1/4 NE '/4, * SE 1/4 NE '/4, *NE 1/4 SE 1/4 , * SE 1/4 SE 1/4, S'/i NW 1/4, SW 1/4 NE 1/4, SW 1/4, and W%z SE 1/4, Section 28 * SW '/ NW 1/4, * NE '/ SW '/, * SW 1/4 SW 1/4, * SE '/ SW 1/4, and NW '/4 SW 1/4 Section 29 All of Section 29 except a portion of * NE 1/4 NE 1/4 (NE '/4 NE 1/4 partially covered) Section 30 All Section3l *NW'/4SW'/4,*NE'/4SW'/4,*NW'/4 SE'/4,*SW'/4 SE'/4,*NW'/4 SW 1/4, N'/s, and E''/z SE 1/4, Section32 *NE%NE'/,*SW'/NW1/4,*SE'/NW'/,*SE%NE'/,*NE'/4 SW 1/4, * SE' /4 SW' /4, and NW 1/4 SW 1/4, Section 33 * NW 1/4 NW 1/4, and * SW 1/4 NW 1/4 T. 14 N. R. 18 E.W.M. Section29 * NW 1/4 SW 1/4, and * SW'/4SW1/4, Section 30 * Gov Lot 3 (from * NW' /4 SW 1/4), *NE 1/4 SW'/4, and * SE 1/4 SW 1/4 Section 31 * NW 1/4 NE 1/4, * NE 1/4 NE 1/4, * SW 1/4 NE 1/4, * SE 1/4 NE 1/4, and * NE '/4 SE'/, Section 32 * NW % NW 1/4, * SW 1/4 NW 1/4, and * NW V SW 1/4 11 11 1111 C TY OF YRKIMA 111 1 7454555 Page: 9 o£ 9 1 05/18/2005 08:28A WTR 427.00 Yakima Co, WA