HomeMy WebLinkAboutR-1998-079 Yakima River Watershed - Tri-County Water Resource Agency•
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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:
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• 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.
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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
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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.
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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: