Loading...
HomeMy WebLinkAboutR-1998-079 Yakima River Watershed - Tri-County Water Resource Agency• • • RESOLUTION NO. R-98- 79 A RESOLUTION authorizing and ratifying the Mayor's execution of a Memorandum of Agreement between the Counties of Benton, Yakima and Kittitas, the Irrigation Districts of Roza, Sunnyside, Yakima-Tieton, and the Cities of Ellensburg and Yakima. WHEREAS, the governments of Benton County, Yakima County, Kittitas County, Klickitat County, City of Ellensburg, City of Yakima, Roza Irrigation District, Yakima-Tieton Irrigation District, and the Sunnyside Valley Irrigation District, have agreed to initiate and implement a multi-WIRA planning unit for the Yakima River Watefshed, in accord with the requirements of Section 2 of HB 2514; and WHEREAS, watershed planning for the Yakima River Watershed (WRIAs 37, 38, and 39) under HB 2514 is an extension of past and current planning efforts of the TCWRA, Yakima River Watershed Council, the Yakima River Basin Water Enhancement Project, the Council of Governments Water Quality Report, and others, and is a desirable process for local governments, and water utilities in the basin to conduct in cooperation with each other and other interested parties; and WHEREAS, HB 2514 amends Chapter 90.82 RCW and provides further authority for watershed planning and direction for the initiation of planning units, and eligibility for grant funds; and WHEREAS, the City Council deems it to be in the best interest of the City to participate in the watershed planning process, in cooperation with the above specified government entities, and thereby assuring the widest range of public involvement in the planning process, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The Mayor's execution of the attached and incorporated Memorandum of Agreement between the Counties of Benton, Yakima and Kittitas, the Irrigation Districts of Roza, Sunnyside, Yakima-Tieton, and the Cities of Ellensburg and Yakima, regarding watershed planning is hereby authorized and ratified. ADOPTED BY THE CITY COUNCIL this 2nd day of June All EST: A ting ()City Clerk (1k)res-watershed planning-rlp 1998. hn Puccinelli, Mayor • • • MEMORANDUM OF AGREEMENT REGARDING WATERSHED PLANNING INITIATION FOR THE YAKIMA RIVER BASIN (WRIAS 37, 38, & 39) WHEREAS, in November, 1995, the Boards of Commissioners of Benton, Kittitas, and Yakima Counties entered into an interlocal agreement for the purpose of developing a water resource and comprehensive water plan; establishing the Tri -County Water Resource Agency (TCWRA); declaring their intent regarding coordinated water resources, water quantity, water quality, and water system planning, directing staff, authorizing requests for grant funding and appropriating funds; and WHEREAS, in said interlocal agreement, the Benton, Kittitas and Yakima counties provide that in the preparation of a comprehensive surface and ground water plan, these counties and the TCWRA shall work in cooperation with the Yakima River Watershed Council, which includes representatives of state and federal agencies, the Yakama Indian Nation, local governments and representatives for agricultural, fisheries, recreational 'and environmental interest; and WHEREAS, 1998 legislation (HB 2514) amends Chapter 90.82 RCW and provides authority for watershed planning and directions for the initiation of planning units and eligibility for grant funds; and WHEREAS, watershed planning under HB 2514 provides for the representation by a wide range of water resource interests in the investigation and planning of actions relating to water quantity. Water quality elements, habitat, and instream flow also may be considered per the requirements of Section 4, 5, and 6, along with the identification of projects and activities to protect water resources and improve natural resource management; and WHEREAS, watershed planning for the Yakima River Watershed (WRIAs 37, 38, and 39) under HB 2514 is an extension of past and current planning efforts of the Yakima River Watershed Council, the Yakima River Basin Water Enhancement Project, the Council of Governments Water Quality Report, and others, and is a desirable process for local governments and water utilities in the basin to conduct in cooperation with each other and other interested parties; and WHEREAS, HB 2514 authorizes the creation of a planning unit to apply for grant funding upon the agreement of certain government entities in the Yakima River Watershed to initiate the watershed planning process, the designation by such entities of Memorandum of Agreement -Watershed 1Q9E Pace 1 a lead agency for the planning units, and their direction regarding staffing of the planning unit for the multi-WRIA Yakima River Watershed; and WHEREAS, the initiating governments designated by Section 2 of HB 2514 are Benton County, Yakima County, Kittitas County, Klickitat County, City of Ellensburg, City of Yakima,. Roza Irrigation District, Yakima Tieton Irrigation District, and the Sunnyside Valley Irrigation District; and WHEREAS, the confederated tribes and bands of the Yakama Indian Nation have been invited to be one of the Initiating Governments and have (accepted/rejected) such invitation; and WHEREAS, the irrigation districts in the initiating governments group recognize the importance of consulting with other irrigation entities in the three WRIAs; NOW, THEREFORE, the initiating governments agree as follows: 1. Planning Initiation. Pursuant to Section 2 of HB 2514, the initiating governments concur that watershed planning should be initiated for the multi- WRIA area comprised of WRIAs 37 (Lower Yakima), 38 (Naches), and 39 - (Upper Yakima). The Yakama Indian Nation shall be invited to participate as an initiating government. Initiating Governments Activities. • a. The interlocal agreement creating the TCWRA shall be amended to include all initiating governments as participants in the agreement, and each government may appoint a member to the TCWRA Board. b The initiating governments designate the TCWRA as the lead agency for the planning unit and authorize the TCWRA to apply for grants from federal, state, local, and private sources to fund the planning effort. The TCWRA may hire its own director and staff to work as directed by the TCWRA. c. The composition of the planning unit shall be determined in a manner that complies with the requirements of HB 2514 and assures that water resource users' interests and directly involved interest groups at the local level have the opportunity to give input and direction to the planning process. Representative organizations and/or individuals shall be Memorandum of Agreement -Watershed 1998 Page 2 • • • appointed by the initiating governments together with the Yakima River Watershed Council to constitute the planning unit. d. The TCWRA may select consultants to prepare a Yakima River Watershed Plan utilizing any portion of or add items to existing plans. This will be done in cooperation with the planning unit. e. The scope of the planning shall be defined by the initiating governments. At a minimum, the plan shall include water quantity, per HB 2514, Section 3. Water quality elements, habitat, and instream flow may also be considered per the requirements of Sections 4, 5, and 6. f. Additional representation of state agencies on the planning unit will be determined by the initiating governments in consultation with the Governor's Office. Federal agency representation will also be addressed. A consensus process shall be the first effort to decision-making of the initiating governments. If the initiating governments fail to reach a consensus, the initiating governments may decide by a majority vote. 3. Financial Obligations of Initiating Governments. The initiating governments shall not be obligated to pay any debts or operating costs of the TCWRA or the planning unit. These costs shall be funded solely through grants and voluntary contributions. g. 4. Plan Preparation. The process adopted by the initiating governments for plan preparation shall: a: Place responsibility with the TCWRA for overall management of the planning activities, including administrative, strategies, scheduling. contract services, and reports preparation. Any of the planning efforts may be contracted to third parties. b. Provide that interim decisions during the planning process on plan development activities be reached by a consensus process. If the planning unit fails to reach consensus, the lead agency may decide the issue by a majority vote. c. Provide that the proposed watershed plan approved by the planning unit shall be referred to the TCWRA for public hearings, and that the Memorandum of Agreement -Watershed ]99* Pa_,: TCWRA shall provide a report on the public hearings and its recommendation to the county legislative authorities for the approval process provided in Section 9 of HB2514. d. Planning meeting locations will be rotated equally among the three WRIAs to insure participation opportunities. 5. Duration. This agreement will operate for the duration of the planning period, which will last no longer than four years from the date state funding is first received by the planning unit or the TCWRA subsequent to the date of this MOA. This Memorandum of Agreement has been executed this day of May, 1998, on one or more originals, by the parties shown below. Benton County Yakima County Kittitas County Klickitat County Cite of Ellensburg City of Yakima Roza Irrigation District Yakima Tieton Irrigation District Sunnyside Valley Irrigation District Yakama Indian Nation Approved as to form: Benton County Deputy Prosecutor Memorandum of Agreement -Watershed 1998 Page 4 4 • d. Planning meeting locations will be rotated equally among the three WRIAs to insure participation opportunities. 5. Duration. This agreement will operate for the duration of the planning period, which will last no longer. than four years from the date state funding is first received by the planning unit or the TCWRA subsequent to the date of this MOA. This Memorandum of Agreement has been executed this g day of May, 1998, on one or more originals, by the parties shown below. I\ �ry Benton County C t.o . i• ation..District (/), (14,a,a, Klickitat County Yakima Tieton Irrigation District Valley Irrigation District Yakama Indian Nation Approved as to form: Beaton County Deputy Prosecutor 4 Yakima City Contract #98-65 Resolution #R-98-79 NEW OPPORTUNITIES (AND CHALLENGES) FOR LOCAL WATERSHED PLANNING BY THONL LS M. PORS, FOSTER PEPPER & SHEFELMAN PLLC Water availability and water quality are perhaps the most significant environmental issues facing local governments in the State of Washington. Clean water and controlled runoff is needed to restore threatened salmon and steelhead runs. Reliable sources of drinking water and major investments in treatment and delivery infrastructure are needed for new growth. The inability to resolve water resource conflicts has contributed to the decline of fish resources, moratoria on new hookups in growing urban areas, and the inability to expand the State's agricultural and industrial economies. The National Marine Fisheries Service (NMFS) recently proposed listing several more species of salmon and steelhead in Washington State as threatened or endangered — a warning shot that we need to get our water resources house in order. Following its successful litigation challenging the Governor's partial veto of last year's basin planning bill (SSHB 2054), the 1998 legislature passed ESI -IB 2514 to provide funding and a planning framework to resolve water resource conflicts at the local level. This planning framework may be local government's best opportunity to maintain a meaningful involvement in the resolution of water resource issues in their own watersheds. Failure to commence local watershed planning could prompt the federal government to step in with more severe and less predictable measures under the Endangered Species Act, or the federally recognized tribes to commence Boldt Phase II litigation to establish their instream flow water rights for maintenance or enhancement of fisheries. This article describes the planning framework and grant funding process for watershed planning under ESHB 2514, and provides background regarding the "gorillas in the closet" if this process fails — the Endangered Species Act and tribal rights. WATERSHED PLANNING GRANTS The legislature provided $3.9 million for grants to pay for local planning efforts, and an additional $1.1 million for Ecology to provide technical assistance to planning units. The grants are divided into three phases. • Phase 1 is an initial organizing grant of up to 550,000 for a single WRIA or $75,000 for a multiple-WRIA planning unit. The purpose of the funds is to organize the planning unit and determine the scope of planning. • Phase 2 is up to S200,000 for each WRIA in the planning unit for watershed assessments, described below. • Phase 3 is up to 5250,000 for each WRIA for developing the watershed plan and recommending actions. To be eligible for grants, the initiating governments must agree to commence planning and designate a lead agency to apply for the grants. Ecology has set a June 1st deadline for grant applications for the 1998 and 1999 fiscal years. -1- GRANT FUNDING PRIORITIES Ecology is required to administer the grant program according to criteria established in Section 1(3) of the bill. Preference is given first to planning groups that have been organized for at least one year (which would include existing planning groups in the Methow, Dungeness-Quilcene, Yakima, and Snohomish basins, and perhaps others). The next level of priority is applications that address protection and enhancement of fish habitat in watersheds with species listed or proposed to be listed as threatened or endangered under the endangered species act, and for which there is evidence of inability to supply adequate water for population and economic • growth. In this category, multiple-WRIA applications have priority over single-WRIA applications. The final level of priority is applications that address fish habitat in watersheds that do not have species listed or proposed to be listed as threatened or endangered, but for which there is evidence of an inability to supply adequate water for population and economic growth. Because there may be more applications for funding than funds available, these priorities should be carefully considered before determining the geographic scope of planning. Multiple-WRIA planning units may involve more parties and therefore more issues to resolve, but they may get the lion's share of funding. PLANNING LVITIATION TRIB.A.L INVOLVEMENT Planning may be conducted in one or more WRIAs, which are water resource inventory areas designated at WAC 173-500. All counties, the largest city, and the largest water -supply utility in each WRIA must concur in the decision to initiate planning. If they do concur, they must invite all tribes with reservation lands within the management area to participate. These entities, including the tribes, if they agree to participate, constitute the "initiating governments," which must designate the lead agency for the planning effort and indicate how the planning unit will be staffed. The Interlocal Cooperation Act, Chapter 39.34 RCW, can be used by the initiating governments to designate a lead agency or create a new joint agency for that purpose, and to determine staffing and financing for the planning process. While tribes are not required to participate in local watershed plans, the initiating governments should make every effort to persuade them to participate. The watershed planning process can only achieve a limited utility if tribes do not participate in the consensus process of determining water availability, setting instream flows, and resolving water quality and habitat issues. A background.discussion of the Boldt decisions and the Chelan Agreement is set forth below. This history and the problem of unresolved tribal water -right issues should be carefully considered when initiating and scoping a local watershed planning process. MAKEUP OF PLANNING UNIT The initiating governments must provide for representation of a wide range of water resources interests in the preparation of the plan. This requirement is more flexible than the multiple caucus representation contemplated by the Chelan Process (see discussion below), which contemplated mandatory representation by tribes, agriculture, business, environmental, fisheries and recreation caucuses in addition to state and local governments. Planning unit representation under ESHB 2514 can be tailored to the water resource interests in a particular watershed, but it -2- • • • • should not be so narrow as to exclude interests whose consensus on the plan would benefit future water resource decisions in the basin. Regardless of the number of entities participating in the plan's preparation, the involvement and continuous education of the public at large is essential to successful adoption and implementation -of local watershed plans. State agencies with regulatory authority or other interests in the planning area (such as the Departments of Natural Resources, Ecology, and Fish & Wildlife) must assist the planning units to the greatest extent practicable, recognizing their fiscal limitations. Ecology was provided with funds under ESHB 2514 for this purpose. This technical assistance must only be at the request of and to the, extent desired by the planning unit, and the number of state representatives is determined by the planning unit in consultation with the governor's office. One exception is where the planning unit decides to set minimum instream flows for streams that have not had such flows previously set by rule. In these cases, Ecology and the planning unit are required to set the minimum flows collaboratively. SCOPE OF PLANNING The planning units must complete water quantity assessments under Section 3 of the bill, and can opt to complete other components listed below. • Water Ouantitv Assessment. The objective of this mandatory assessment is to estimate the total water resources present in the basin, the amount available, the quantity of existing rights (including claims and federal reserved rights), the quantity of water actually used in the basin, an estimate of future needs, identification of areas where aquifers are recharged and where they discharge to surface water bodies, and an estimate of surface and groundwater available for further appropriation, taking into account minimum instream flows. Currently, Ecology considers most basins in the state to be overappropriated or to have inadequate water resources to grant any new water -rights permits. Therefore, this assessment provides the • planning unit with the opportunity to make this determination locally. In addition to assessing existing resources, planning units must develop strategies for increasing water supplies in the planning area, such as conservation, reuse, water transfers, aquifer recharge and recovery, or additional water storage. The objective of these strategies is to supply sufficient water to meet the future needs for both minimum instream flows and out -of -stream needs such as water supply for agriculture, energy production, and population and economic growth. In many respects, this element of local watershed planning is the missing element of comprehensive planning under the Growth Management Act. • . Instream Flows. The initiating governments may choose, by majority vote, to include an instream-flow component. Because instream flows have the status of existing water rights once they are adopted, they must be protected from future impacts from new water rights or water -right transfers. Therefore, setting or modifying instream flows can have a major effect on the future availability of both ground and surface water in the basin. Most groundwater application denials are currently based on impactsto minimum instream flows set by rule. There could be substantial benefit to resolving the issue of groundwater/surface water impacts for a basin by carefully defining which future groundwater applications would be subject to or exempt.from the instream flow rules for a basin.. Recent litigation and -3- legislative proposals have been unsuccessful in resolving this "hydraulic continuity" issue. ESHB 2514 has several requirements for setting or modifying instream-flows, including Ecology rulemaking, and government -to -government consultations with affected tribes. If a planning unit fails to adopt instream flows, Ecology may proceed to do so under existing authority in the Water Resources Act of 1971, RCW 90.54. • Water Quality. This optional element includes analysis of water quality in the basin, sources of pollution, designation of beneficial uses of water bodies, and a recommended approach for implementing total maximum daily loads (TMDLs) established for achieving compliance with new water quality standards. Under the Clean Water Act, Ecology must establish TMDLs for surface waters on the § 303(d) list of waters with impaired water quality. This process has the potential to curb growth if planning is not adequate to reduce both point and non point sources of pollution to meet water quality criteria. Therefore this element could give local governments substantial input into the TMDL process. • Habitat. This optional element would assist the planning unit in protecting or enhancing fish habitat in the planning area. Including this element in a watershed plan helps to meet the grant funding priorities in Section 1 of the bill. if this element is included, it must rely on existing laws (i.e., no new regulatory programs), including the Shoreline Management Act, Growth Management Act, and the Forest Practices Act. This planning must be integrated with other strategies, including salmon restoration projects developed under ESHB 2496. This element has the potential to be included by NMFS in a § 404(d) rule for the protection of threatened anadromous fish species, and could benefit planning units by providing a safe harbor from ESA enforcement actions for certain fish restoration projects of importance to the basin. IDENTIFICATION OF PROJECTS Section 7 of the bill requires planning units to review historical data and other natural resource protection or enhancement plans and projects and their status. Planning groups are encouraged to identify projects and activities that are likely to improve management of the water resource and that warrant financial assistance from the state, federal, or local government. RESTRICTIONS ON LOCAL WATERSHED PLANS Section 8 of ESHB 2514 provides that local watershed plans cannot: • • conflict with existing federal or state laws or tribal treaties; • impair or diminish existing water rights; • modify the operation of federal reclamation projects with senior water rights; • interfere with water -rights adjudications; • modify waste water discharge permits; • modify habitat restoration work developed under ESHB 2496; or • modify fish habitat activities undertaken pursuant to an approved habitat conservation plan and incidental take permit, or pursuant to a water quality program adopted by an irrigation district or joint board of control under RCW 87.03 or 87.80. -4- • • • RELEVANT HISTORYBOLDT DECISIONS AND THE CHELAN AGREEMENT In United States vs. Washington (also known as Boldt Phase I), decided in 1974 and upheld on appeal by the U.S. Supreme Court in 1979, the tribes won a judgment that their treaty right "of taking fish... in common with all citizens" entitled them to allocation of up to 50% of the harvestable fish passing through their usual and accustomed fishing grounds. In the second phase of the Boldt cases, the tribes temporarily won.a court decision that this treaty fishing right implied another right to have treaty fish habitat protected from environmental degradation by state and local government. The Ninth Circuit Court of Appeals vacated this decision, however, finding that it was premature to decide the issue without concrete facts regarding particular watersheds. Sine then, other cases have supported the position that the tribes have a treaty right to instream flows sufficient to maintain or enhance the fisheries. The vast majority of rivers and streams in the State of Washington have tribal usual and accustomed fishing grounds and are subject to protection of instream flows for maintenance or enhancement of salmon and steelhead fisheries. Resolution of instreamlflow needs for fish is necessary before substantial new water rights are. issued for out -of -stream uses such as public water supply, industry and agriculture. Recognizing the growing complexities of the streamflow controversy in the late 1980's, the State sought a resolution short of continued litigation. The resolution needed to address two problems that inhibited the State from setting instream flows: (1) problems with water quality differ from region to region within the state and (2) the allocation of water is important to both local economies and the quality of life in the state, thereby not lending itself to a statewide solution by a state agency or the Legislature. All interested parties convened through representatives to discuss these issues and find a common solution. The Chelan Agreement is an agreement in principle that calls for the convening of regional committees to review the water quantity and quality issues of that region and to reach a conclusion how to best resolve those issues locally. Two pilot projects were established to move the process forward, one located in the Methow River basin and the other in the Dungeness-Quilcene River basins. The Water Resources Forum was also created to discuss major water policy issues that could have state-wide application, such as the Trust Water Rights Program and technical issues regarding ground water andsurface water interconnections. Because of the cooperative process achieved by the Pilot Projects and the Water Resources Forum, the tribes chose not to proceed with the Boldt Phase II litigation. The Chelan process anticipated allowing representatives of the major interest groups in selected regional watersheds, including state, local and tribal governments, environmental, recreation, fisheries, business and agriculture, to decide water policy issues for that region by consensus, to determine how to enhance instream flows for fisheries and other uses, and to determine how to allocate the remaining public waters in that regional watershed. This process developed strong opponents in the Legislature who sought greater authority for local government. HB2514 is an updated version of this process, but it has drifted from the tribe's vision of the Chelan Agreement. This and the failure to support the Water Resources Forum by the Legislature and. Ecology has alienated many tribes from the consensus process for watershed planning. What happens if ESHB25I4 is not successful? Failure to restore and enhance fishing habitat and resolve instream flow conflicts by cooperation will ultimately lead to costly, time-consuming and -5- unpredictable litigation in the federal courts over the scope of tribal rights. Failure to protect salmon habitats could also lead to drastic results under the ESA, possibly including curtailment of current water use and moratoria against new water hookups. Finally, if instream flows are not set under ESHB2514, Ecology could set instream flows by rule under existing authority. Regions not planning under ESHB2514 may encounter significant delays resolving instream flow conflicts and thus inability to obtain State approval of new water supply projects. Foster Pepper and Shefelman's Land Use and Environmental Practice Group is experienced and creative in the management of water resources and habitat issues. Our broad experience with private and public development; land use regulations and litigation; the Endangered Species Act; GMA and critical area regulation; SEPA/NEPA; water rights and water -supply planning; sewer and septic system regulation; NPDES and Clean Water Act compliance and litigation; and tribal rights gives us the ability to manage and resolve complex issues like groundwater/surface water conflicts, water resources planning, salmon restoration, and ESA compliance and litigation from multiple perspectives. Please contact Tom Pors for additional information or assistance with basin planning and salmon restoration/ESA issues. -6- • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. / / For Meeting of June 2, 1998 ITEM TITLE: Consideration of a Resolution Ratifying the Mayor's Execution of a Memorandum of Agreement (MOA) for purposes of initiating watershed planning for the Yakima River Watershed SUBMITTED BY: Dueane Calvin, Water/Irrigation Manager CONTACT PERSON/TELEPHONE: Dueane Calvin (576-6480) SUMMARY EXPLANATION This Memorandum of Agreement involves becoming an initiating govemment, as defined in HB 2514, along with the Counties of Benton, Yakima and Kittitas, the Irrigation Districts of Roza, Sunnyside, Yakima-Tieton and the City of Ellinsburg. A copy of the Memorandum of Agreement is attached hereto. Due to time constraints surrounding application for grant funding for the initiation of the watershed planning, the deadline being June 1, 1998, the Mayor executed said MOA on May 26, 1998. This action was taken, based on Council having authorized participation in the planning process, on May 5, 1998. However, it is now being requested that Council ratify this action by the Mayor by adoption of the attached resolution. X Resolution Ordinance Contract Other (Misc. Information) Funding Source N/A APPROVED FOR SUBMITTAL ity Manager STAFF RECOMMENDATION: Adopt the Resolution Ratifying Execution of the Agreement. COUNCIL ACTION: