HomeMy WebLinkAboutExhibitsCLAIMANT NAME:
Certificate Number:
Subbasin:
Source:
Use:
Period of Use:
Quantity:
Priority Date:
Point of Diversion:
Place of Use:
Limitations Of Use:
-~
James Treat COURT CLAIM NO. 01141
& Hazel Treat
Cooke-Coleman LLC
84-84509-J
10 Kittitas
Cooke Creek
Irrigation of 60 acres and stock water
April 15 through September 15
1.20 cubic feet per second, 275.64 acre-feet per year
June 30, 1872
600 feet south and 200 feet east from the north quarter
corner of Section 18, being within the NW¼NW¼NE¼ of Section
18; AND, 1200 feet north and 450 feet west from the south
quarter corner of Section 18, being within the NE¼SE¼SW¼ of
Section 18, BOTH WITHIN T. 18 N., R. 20 E.W,M.
Those portions of the E½SW¼ and the W½SE¼ of Section 18, T.
18 N., R. 20 E.W.M., lying east of Cooke Creek.
When frost is out of the ground before April 15, the period
of use is modified to allow use of water as soon as frost
is out of the ground and water can beneficially be used.
When surplus water is available in excess of that needed to
satisfy all existing rights, an additional 1.2 cubic feet
per second may be diverted. This water will normally be
available approximately 30 days during the spring, which
would result in up to 71.28 acre-feet per year being used
in addition to that authorized herein.
WATER RIGHT PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("this Agreement") is entered into between,
Kittitas County, a political subdivision of the State of Washington (hereinafter ' the
County"), and James and Hazel Treat (hereinafter "Sellers"), as of \.1-A/i... ;J(g dO J.1
2017 ("the Effective Date"). J 1
Factual Background
A. Sellers own Water Right Certificate No. S4-84509-J, filed as Water Right Claim
No. 01141 and confirmed in the Yakima Superior Court Ecology v. Acquavella
adjudication, which are more fully described in Exhibit A attached hereto (hereinafter
"Water Right"). The Water Right has been confirmed for the withdrawal of 1.2 cubic-
feet per second ("cfs"), 275.64 acre-feet per year ("AF/year") for irrigation of 60 acres
between April 15 and September 15, and year-round stockwater, with a priority date of
June 30, 1872 .
B. The County is interested in purchasing the Water Right which currently is
appurtenant to Kittitas County parcel numbers 18-20-18000-0030, 18-20-18000-0031,
18-20-18000-0006, 18-20-18000-0032 and 18-20-18000-0033, which together comprise
95.4 acres, as more fully described in the legal description attached as Exhibit B hereto.
C. Sellers wish to reserve the quantity of nine (9) acre-feet per year of consumptive
use water under Water Right for their future personal use ("Sellers' Reserved Quantity").
The remainder of the Water Right not reserved by Sellers is hereinafter referred to as the
"Sale Quantity."
D. The County intends to transfer the entire quantity of water ultimately deemed to
have been beneficially used under the Water Right to the Washington State Trust Water
Rights Program pursuant to Chapters 90.42 and 90.38 RCW, with the County's
purchased portion thereof (the Sale Quantity) to serve as mitigation for existing and/or
future groundwater withdrawals in Kittitas County. Similarly, Sellers' Reserved Quantity
may be accessed in the future by Sellers to satisfy their personal water needs.
E. Sellers desires to sell to the County and the County desires to purchase from
Sellers the Sale Quantity and to take such other actions as herein provided.
Agreement
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the County and Sellers agree as follows:
1. Purchase Price for Sale Quantity under Water llight. The purchase price for the
Sale Quantity is Four Thousand Six Hundred Thirty-Two Dollars and Forty-Five Cents
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page I of 13
($4,632.45) per acre-foot of consumptive water use approved by the Washington
Department of Ecology (hereinafter "Ecology") for transfer to the Trust Water Right
Program for mitigation of groundwater use in Kittitas County, less the Earnest Money
Deposit then held by the Closing Agent and any interest earned thereon. Sellers'
obligation to sell and the County's obligation to purchase the Sale Quantity is contingent
upon the provisions of this Agreement.
2. Earnest Money. Within five (5) business days following mutual execution of this
Agreement, the County will deposit with AmeriTitle, 101 West Fifth, Ellensburg,
Washington, 98926 (hereinafter "the Closing Agent"), a fully-executed copy of this
Agreement and the sum of Ten Thousand Dollars ($10,000.00) in immediately available
funds (the "Earnest Money Deposit"). The Earnest Money Deposit shall be held in an
interest-bearing money market-type account by the Closing Agent. Interest on the Earnest
Money Deposit shall be for the benefit of whichever party is entitled to the Earnest
Money Deposit at Closing or other termination of this Agreement. The Earnest Money
Deposit shall be paid to Seller or refunded to County as set forth in this Agreement.
3. li'uturc Watct· Use by ·cucrs. If Ecology approves the application to change the
Water Right to a Trust Water Right, Sellers and their heirs, successors, and assigns agree
not to divert, pump, store, or use the portion of the Water Right comprising the Sale
Quantity, unless otherwise authorized by the provisions of this Agreement and Ecology's
approval of the change application. For purposes of this Agreement, the parties
understand and agree that Sellers' Reserved Quantity shall not be subject to these
restrictions on the future use of water.
4. Land Fallowing Co enant and Monitoring. Sellers agree to record a covenant
against the land described in Exhibit B, except as provided by the provisions of this
Agreement and Ecology's approval of the change application. Sellers may irrigate the
land only under the Leaseback provisions of this Agreement, described in Section 10
below, or with Sellers' Reserved Quantity and/or a different water right acquired by
Sellers for that purpose. The County will monitor the land on at least an annual basis to
ensure compliance with this land fallowing provision.
5. Water Right hangc Ap11licaliou.
5. Pre-Filing Water Right Review. In connection with preparation of the
below-described Change Application for filing, the Parties agree that Aspect Consulting
shall undertake a confidential review and analysis of all information bearing on the likely
"validity and extent" of the Water Right, including anticipated total annual consumptive
use to be approved for transfer by Ecology, based upon all available evidence of historic
water use, including but not limited to photographs and other imaging. Prior to filing the
Change Application, Aspect Consulting shall provide its nonbinding total annual
consumptive use estimate to the Patties. Thereafter, and EXCEPT upon exercise of
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 2 of 13
Sellers' Cancellation Right under Section 8.1, the County will promptly proceed with the
filing of the Change Application as herein provided.
5.2 'hange Application Jl'iling nncl Fe . The County will prepare and
deliver to Sellers one or more counterpart applications (collectively, "the Change
Application"), in the form prescribed by Ecology, for the change of the entire Water
Right to the State Trust Water Rights Program. Sellers shall duly sign all counterparts of
the Change Application and deliver to the County original signed counterparts of the
Application. The County will file the Change Application with Ecology. The County and
Sellers will split evenly the processing costs associated with the Change Application or
its approval by Ecology, commencing on the Effective Date, including the costs of
retaining Aspect Consulting to assist in the completion of the processing of the Change
Application, EXCEPT that total Change Application expenses allocated to Sellers,
including Aspect Consulting expenses, shall not exceed Fifteen Thousand Dollars
($15,000.00).
The County and Sellers will cooperate in all aspects of the Change Application
process. The parties understand that Ecology will issue the final decision on the Change
Application. If the change decision issued by the Department of Ecology is appealed by a
third party, the County has the right to terminate this Agreement.
S.3 Sellers' Reserved Quantity. The Change Application will request
approval for future use of Sellers' Reserved Quantity on Kittitas County parcel numbers
18-20-18000-0030, 18-20-18000-0031 and l 8-20-18000-006 for domestic use in one or
more homes, non-commercial lawn and garden irrigation and livestock watering. Sellers'
Reserved Quantity shall not be exercised prior to termination of any irrigation water
leaseback arrangements as may be entered into between County and Sellers pursuant to
Section 10 ofthis Agreement.
6. Ecology Dch:rminnHon of Trust Water Right. The Sale Quantity to be purchased
by the County will be that portion of the Water Right that Ecology determines to be valid
and available for transfer to the Trust Water Rights Program, less Sellers' Reserved
Quantity, as stated by Ecology in its report of examination or other statement of factual
findings (collectively, "the Report of Examination"). The County and Sellers understand
that: (i) the amount of the Trust Water Right will be based upon the actual historical use
of water pursuant to the Water Right, (ii) in quantifying the Trust Water Right, various
factors such as consumptive use, conveyance losses, and return flows are taken into
account by Ecology, and (iii) the Trust Water Right will include a smaller area of use and
a lesser quantity of water than is included within the entire Water Right.
7. Ecology Review, A. sumption of the Risk, and Hold Haa·mless. Sellers recognize
that part of the water right change application process requires Ecology to make a
tentative determination of the extent and validity of the Water Right. Sellers also
recognize that Ecology, in processing the change of the Water Right, follows certain
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 3 of 13
statutes and administrative code provisions. Sellers also recognize that in applying the
statutes and administrative code provisions, Ecology interprets the statutes and
administrative code provisions in a manner that is beyond the control of County and
Sellers and but subject to certain statutory and administrative appeal rights. Ecology's
processing of the transfer request may result in all or part of the Water Right being
determined to be relinquished. Sellers agrees to assume the risk of all or part of the
Water Right being determined to be relinquished and agrees to hold County harmless
from any and all damages, loss of water or property rights, which may occur as result of
the transfer process.
8. Conriugcnci .
8.1 S IJcr ' anccllation Right. In the event that Aspect Consulting's Pre-
Filing Water Right Review, described in Section 5.1, finds that total annual
consumptive use under the Water Right eligible for transfer to the Trust Water
Rights Program, including Sellers Reserved Quantity, may be less than 110 acre-
feet per year, Sellers may, within five (5) days following receipt of such findings,
unilaterally terminate this Agreement by giving notice thereof to the County in the
manner provided herein ("Sellers' Cancellation Right"). If Sellers provide timely
notice to the County of Sellers' election to exercise Sellers' Cancellation Right, the
Parties shall have no further obligations under the Agreement, EXCEPT that Sellers
shall pay all of the County's share of Aspect Consulting's fees and costs and the
County's attorneys' fees associated with this Agreement incurred from the
Effective Date until the date of notice of Sellers' exercise of Sellers' Cancellation
Right hereunder. If Sellers exercise Sellers' Cancellation Right, the Parties agree to
maintain confidential the Pre-Filing Water Right Review estimate, to the fullest
extent permitted under applicable law.
8.2 Funding and Resolution Ratifying_ Agreement. This Agreement is
contingent upon (i) the County's ability to obtain funding in order to pay and (ii)
the Kittitas County Board of Commissioners passing a resolution in the ordinary
course of its business ratifying this Agreement and appropriating sufficient funds
for the purchase of the Water Right within twelve (12) months of the Effective
Date. In the event either of these contingencies are not satisfied or waived within
twelve (12) months of the Effective Date, then this Agreement shall terminate.
8.3 Ecology Appr-oval. Prior to Closing, all of the following conditions will have
occurred or been satisfied: (i) Ecology will have approved the Change Application
as filed by County or subject only to such variations from the Change Application
as are acceptable to County, (ii) the change contemplated by the Change
Application will have been approved in writing by all applicable governmental and
quasi-governmental authorities, (iii) all objection and appeal periods relating to the
Change Application or any governmental or quasi-governmental decisions relating
thereto will have expired, and (iv) any objections or appeals filed with respect to
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 4 ofl3
the Change Application or any governmental or quasi-governmental decisions
relating thereto will have been resolved to County's satisfaction.
8.4 Ounnti I of Wat r Approved by Ecology a Trust Water Right. Sellers and
County estimate that Ecology's review of the Water Right for transfer into the Trust
Water Program will be based on calculation of at least 2.6 AF/acre of consumptive
use and result in approximately 156 AF/year of consumptive use water for transfer
into the Trust Water Right Program for combined use as mitigation of groundwater
use in Kittitas County and under Sellers' Reserved Quantity.
8.5 No Material hange.-;. Between the Effective Date and the Closing Date, there
will have been no material adverse change to the Water Right, including, without
limitation, the following: (i) adverse changes in legal or equitable title to the Water
Right, (ii) defaults, breaches, violations or actions filed or taken under any
mortgages, deeds of trust, or any other document or agreement, and (iii) the
creation or occurrence of additional, or any adverse change to, any legal restrictions
or other circumstances.
8.6 Waiver f ontingencies. County may waive, in whole or in part, any
condition precedent to the County's performance under this Agreement. Sellers
may likewise waive, in whole or in part, any condition precedent to its performance
under this Agreement. All contingencies or conditions precedent described in this
Section 8 will be deemed waived once both the County and Sellers have delivered
all items that each is required to deliver for closing pursuant to this Agreement.
9 . Wbeu and How Purdtase Price Will Be Paid. At Closing (as defined below), the
entire Purchase Price, subject to any credits, deductions, prorations or adjustments
provided in this Agreement, will be paid to Sellers in cash or equivalent cleared funds.
I 0. Lea . cbnck Provisions. Upon Closing, the County agrees to lease to Sellers and
Sellers agree to lease from County at least enough water sufficient to irrigate the full
number of irrigable acres identified by Ecology pursuant to the Change Application each
year ("Leaseback Water") for twenty (20) years from the date of Closing (hereinafter "the
Initial Leaseback Period"), except in those years in which there is a drought in the
Yakima Basin , in which instance the County is under no obligation to lease any water
back to Sellers. For purposes of this Agreement, a "drought" shall mean (a) a year, or a
portion thereof, when the water supply for the Yakima River Basin is below seventy-five
percent of normal, as confirmed by the Bureau of Reclamation, and "junior" (post-1905
priority) water rights are pro-rationed or curtailed, or (b) a year in which the State of
Washington declares a drought in all or part of the Yakima River Basin pursuant to WAC
173-166-060.
Notwithstanding the above, in any year in which Sellers have received Leaseback Water
from the County before a "drought" has been confirmed or declared under either of the
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 5 ofl3
herein definitions, the County shall so notify Sellers and refund Seller's entire lease
payment for that year. Immediately upon receipt of the lease payment refund, Sellers
shall curtail all additional use of Leaseback Water for the remainder of that year.
The County and Sellers agree that the annual lease price will be the per acre price
established for water by the Kittitas Reclamation District for each year of the Lease
(hereinafter "Leaseback Price").
The County and Sellers may also agree mutually in writing to alter these Leaseback
provisions during the Initial Leaseback Period, except there shall be no obligation on the
Parties to alter these provisions.
After the Initial Leaseback Period, the County and Sellers agree that the County may, in
its sole discretion, lease back to Sellers some or all of the Water Right. After the Initial
Leaseback Period, the County and Sellers agree to meet each year in February to
determine the total amount of water to be leased that year, if any, and that year's
Leaseback Price.
1-L ell r 's Warran tie.,; autl Re()r eutatioo~. In addition to the warranties and
representations contained elsewhere in this Agreement (and in any of the documents
executed in connection with this Agreement) or implied by law, Sellers makes the
following warranties and representations, each of which: (i) is material and being relied
upon by County, (ii) is true in all respects as of the Effective Date, (iii) will be true in all
respects at Closing, and (iv) will survive Closing. Sellers will indemnify, protect, defend
and hold County (and County's agents, employees, officers, directors and members)
harmless from and against any and all claims, liabilities, losses, damages, costs and
expenses, of any nature whatsoever, including, without limitation, attorneys' fees, arising
from or related to any untruth, inaccuracy or breach of any of Sellers' warranties or
representations, whether contained in this Section or elsewhere in this Agreement.
All of Sellers' representations and warranties contained in this Agreement will be true
and correct as of the Closing Date.
12, Historic Water Use. To the best of Sellers' knowledge, (i) water under the Water
Right has been put to beneficial use in accordance with terms specified in the Water
Right and protected from relinquishment during that same time periods, (ii) no period of
five consecutive years of partial or total nonuse has occurred since 1967, and (iii) the
Water Right has never been intentionally abandoned or voluntarily relinquished.
13. Title. At Closing, Sellers will deliver to County and its assigns good, marketable,
and indefeasible fee simple title to the Water Right, and the same will be free and clear of
all liens, claims, encumbrances and defects of title, of any nature whatsoever except those
to which County has granted its written consent. To the best of Sellers's knowledge,
there are no leases, rental agreements, service contracts, option agreements, mortgages,
deeds of trust, or other written or oral commitments, arrangements, agreements or
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 6 of 13
obligations of any kind affecting the Water Right.
14. losing.
14.1 Definitions.
14.1. Closing Agent. For purposes of this Agreement "closing agent"
shall be defined as a person authorized to perform escrow services
pursuant to the provisions of Chapter 18.44 of the Revised Code of
Washington who is designated by the parties hereto to perform such
services.
14.1.2 Date of losing,. For purposes of this Agreement, "date of closing"
shaJl be construed as the date upon which all appropriate documents are
recorded and proceeds of this sale are available for disbursement to
Sellers. Funds held in reserve accounts pursuant to escrow instructions
shall be deemed, for purposes of this definition, as available for
disbursement to Sellers.
14.1.3 Pface nnd Time of Closing. The sale shall be closed in the offices
of AmeriTitle, Ellensburg (hereinafter the "Closing Agent"), within
twenty-one (21) days after the satisfaction of Contingencies.
14.2 Obligations of Couuty and Sellers at Closing. CoW1ty and Sellers shall
deposit with the Closing Agent at least three (3) days before the closing date all
instruments, documents, and monies necessary close the sale in accordance with this
Agreement.
J4.J. Payment of Costs.
14.3.1 Costs to be divided Equallv. Escrow fees, if any, the closing fee
charged by the closing agent and document preparation fees shall be
divided equally between County and Sellers.
14.3.2 Costs to be paid by Sellet·s. Sellers shall pay all real estate excise
taxes, attorney's fees incurred by Sellers, if any, and other charges
normally borne by Sellers.
14.3.3 Costs to be PaJd by ouncy. County shall pay County's attorney
fees, if any, and those costs or expenses normally allocated to a County in
a real estate transaction.
15. Execution of All Documents. County and Sellers, individually and severally, hereby
acknowledge that the execution of all documents associated with this transaction will
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 7 of 13
substantially affect their legal rights and that each has the opportunity to obtain and
consult with independent legal counsel for the purposes of this transaction and matters
relating thereto.
16. Attornc,,•s' Fee . If either party hereto is required to retain an attorney to enforce
any provision of this Agreement, whether or not a legal proceeding is commenced, the
substantially prevailing party shall be entitled to reasonable attorneys' fees regardless of
whether at trial, on appeal, in any bankruptcy proceeding, arbitration matter or without
resort to suit.
L7. Go orning Law. This Agreement shall be interpreted, construed and enforced
according to the laws of the State of Washington.
18. Noticts. Subject to the requirements of any applicable statute, any notices required
or permitted by law or under this Agreement shall be in writing and shall be (i) personally
delivered, (ii) sent by first class certified or registered mail, return receipt requested, with
postage prepaid, or (iii) dispatched by facsimile transmission (accompanied with
reasonable evidence of receipt of transmission and with a confirmation copy mailed no
later than the day after transmission) to the parties' addresses set forth above. Either
party may change such address for notice. All notices which are so addressed and paid
for shall be deemed effective when personally delivered, or, if mailed, on the earlier of
receipt or two (2) days after deposit thereof in the U.S. mail.
19. Time of Performance. Time is of the essence of this Agreement and of all acts
required to be done and performed by the parties hereto, including, but not limited to, the
proper tender of each of the sums required by the terms hereof to be paid.
20. 'ectio0eHcacUngs. The word or words appearing at the commencement of sections
and subsections of this Agreement are included only as a guide to the contents thereof
and are not to be considered as controlling, enlarging or restricting the language or
meaning of those sections or subsections.
21. Invalidity. In the event any portion of this Agreement should be held to be invalid
by any court of competent jurisdiction, such holding shall not affect the remaining
provisions hereof unless the court's ruling includes a determination that the principal
purpose and intent of this Agreement are thereby defeated.
2-2. Legal Relation hip!I. The parties to this Agreement execute the same solely as a
County and Sellers. No partnership, joint venture or joint undertaking shall be construed
from these presents, and except as herein specifically provided, neither party shall have
the right to make any representation for, act on behalf of, or be liable for the debts of the
other. All terms, covenants and conditions to be observed and performed by either of the
parties hereto shall be joint and several if entered into by more than one person on behalf
of such party, and a default by any one or more of such persons shall be deemed a default
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 8 of 13
on the part of the party with whom said person or persons are identified. No third party is
intended to be benefited by this Agreement. Any married person executing this
Agreement hereby pledges his or her separate property and such person's and his or her
spouse's marital communities in satisfaction hereof.
23. As. ig nment; u cccsso r . Neither the County nor Sellers may sell, transfer, assign,
pledge or encumber its interest in this Agreement without the prior written consent of the
other party, which consent shall not be unreasonably withheld. A purported sale,
transfer, assignment, pledge or encumbrance without prior written consent of the other
party shall be null and void and of no force or effect. Subject to the restrictions contained
herein, the rights and obligations of the County and Sellers shall inure to the benefit of
and be binding upon their respective estates , heirs, executors administrators , successors,
successors-in-trust and assigns.
24. E ntire Ag r c mc nt . All understandings and agreements previously existing between
the parties, if any, are merged into this Agreement, which alone fully and completely
expresses their agreement, and the same is entered into after full investigation, neither
party relying upon any statement or representation made by the other not embodied
herein. This Agreement may be modified only by a written amendment executed by all
parties.
2 S. Inr ea·p.-e tati on. This Agreement has been reviewed by both parties and each party
has had the opportunity to consult with independent counsel with respect to the terms
hereof and has done so to the extent that such party desired. No stricter construction or
interpretation of the terms hereof shall be applied against either party as the drafter
hereof.
26. Counte r·parts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original instrument. All such counterparts together shall
constitute a fully executed Agreement. Facsimile transmission of this Agreement and
retransmission of any signed facsimile transmission shall be the same as delivery of an
original.
27. Am e ndment. This Agreement may not be modified or amended except by the
written agreement of the parties.
IN WITNESS WHEREOF the parties have signed and delivered this Agreement
as of the day and year first above written.
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 9 of 13
SELLERS:
Date: ________ _
HAZEL TREAT
Date: ________ _
Sellers's Address and Phone:
10891 Brick Mill Rd.
Ellensburg, WA 98926
(253 .261.6810
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
COUNTY:
~---,NT ~------
By: Pav~ .~w.elL
Its:'fx>c< C,bm ,·c
Date: lQ 2=.l.4?n.t==1 _
Page 10 of13
County's Address and Phone:
--=--CS. \h~~ a
Su,·k ., #=I llK
ACKNOWLEDGEMENTS
State f Washing ton
County of ll i bt\ io\,g
I ca11 ify that t know or have satisfactory evidence 1.hatJ,mit:,S Y: J i lrnsband of
1-tA.'l{ I ·fvl a. t , is the person who appeared before me, and said person acknowledged that
he signed this instrument and acknowledged it to be his free and voluntary act, for the
uses and purposes mentioned in the instrument.
Dated: U 2.. 3 / I ·7
State o f Washi1:1 glon
County of I( I. · I:(<!)
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I certify that I know or have satisfactory evidence that Hilu. I Trt ,d' wife of
J pt,¥1'\l', lrt .,u , is the pe1· on who appeared before me, and said person acknowledged that
she signed this instrument and acknowledged it to be her free and voluntary act, for the
uses and purposes mentioned in ~e ,ins trumi::nt. ~, m,,,1, . . iP / I . ,$i" . l<.JO ,,,,. ~ . ,,-,/' 1, •
Dated:2 8 11 :;' ~ ~~~,5\_lG'Jlll C: I tf r7) v 1 (__).
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I certify that I know or have satisfactory evidence that~d l-1,1 the person
who appeared before me, and said person acknowledged that he signed this instrument,
on oath stated his authority to execute the instrument as the authorized agent of
KITTITAS COUNTY, to be the free and voluntary act of such entity for the uses and
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Purchase and Sale Agreement \\\\\\\\\\-.; Page 11 of 13
Between Kittitas County and
James and Hazel Treat
CLAIMANT NAME:
Certifi cate Number:
Subbas i n:
Source:
Use:
Period of Use:
Quantity:
Priority Date:
Point of Diversion:
Place of Use:
Limitations of Use:
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
EXHIBIT A: Water Right Certificate
James Treat COURT CLAIM NO. 01141
& Hazel Treat
S4-84509-J
10 Kittitas
Cooke Creek
Irrigation of 60 acres and stock water
April 15 through September 15
1.20 cubic feet per second, 275.64 acre-feet per year
June 30, 1872
600 feet south and 200 feet east from the no r t h quarter
corner of Section 18, being within the NW¼NW¼NE¼ of Section
18; AND, 1200 feet north and 450 feet west from the south
quarter corner of Section 18, being within the NE¼SE¼SW¼ of
Section 18, BOTH WITHIN T. 18 N., R. 20 E.W.M.
v
Those portions of the E½SW¼ and the W½SE¼ of Section 18, T.
18 N., R. 20 E,W.M., lying east of Cooke Creek,
When frost is out of the ground befo e April 15, the period
of use is modified to qllow use of water as soon as frost
is out of the ground and water can benef i cially be used.
When surplus water is available ln excess of that ne·eded to
satisfy all existing rights, an addi iona l 1.2 cubic feet
per second may be diverted. This water will normally be
available approximately 30 days during the spring, which
would result in u p to 71,28 acre-feet per year being used
in addition to th~t authorized herein.
Page 12 of 13
EXHIBIT B: Legal Description of Land Appurtenant to Water Right.
PARCEL: 951892
PARCEL I OF THAT CERTAIN SURVEY AS RECORDED AUGUST 7, 2006 IN BOOK 33 OF
SURVEYS AT PAGES 7-8 UNDER AUDITOR'S FILE NO. 20060807-0012 RECORDS OF
KITTITAS COUNTY, WASHINGTON: BEING A PORTION OF THE SOUTHWEST AND
SOUTHEAST QUARTERS OF SECTION 18, TOWNSHIP 18 NORTH, RANGE 20 EAST, W.M.,
IN THE COUNTY OF KITTITAS, STATE OF WASHINGTON.
PARCEL: 845034
PARCEL 2 OF THAT CERTAIN SURVEY AS RECORDED AUGUST 7, 2006 IN BOOK 33 OF
SURVEYS AT PAGES 7-8 UNDER AUDITOR'S FILE NO. 20060807-0012 RECORDS OF
KITTITAS COUNTY, WASHINGTON: BEING A PORTION OF THE SOUTHEAST QUARTER
OF SECTION 18, TOWNSHIP 18 NORTH, RANGE 20 EAST, W.M., IN THE COUNTY OF
KITTITAS, STATE OF WASHINGTON.
PARCEL: 951893
PARCEL 3 OF THAT CERTAIN SURVEY AS RECORDED AUGUST 7, 2006 IN BOOK 33 OF
SURVEYS AT PAGES 7-8 UNDER AUDITOR'S FILE NO. 20060807-0012 RECORDS OF
KITTITAS COUNTY, WASHINGTON: BEING A PORTION OF THE SOUTHEAST QUARTER
OF SECTION 18, TOWNSHIP 18 NORTH, RANGE 20 EAST, W.M., IN THE COUNTY OF
KITTITAS, STATE OF WASHINGTON.
PARCEL: 951894
PARCEL 4 OF THAT CERTAIN SURVEY AS RECORDED AUGUST 7, 2006 IN BOOK 33 OF
SURVEYS AT PAGES 7-8 UNDER AUDITOR'S FILE NO. 20060807-0012 RECORDS OF
KITTITAS COUNTY, WASHINGTON: BEING A PORTION OF THE SOUTHWEST AND
SOUTHEAST QUARTERS OF SECTION 18, TOWNSHIP 18 NORTH, RANGE 20 EAST, W.M.,
IN THE COUNTY OF KITTITAS, STATE OF WASHINGTON.
PARCEL: 951895
PARCEL 5 OF THAT CERTAIN SURVEY AS RECORDED AUGUST 7, 2006 IN BOOK 33 OF
SURVEYS AT PAGES 7-8 UNDER AUDITOR'S FILE NO. 20060807-0012 RECORDS OF
KITTITAS COUNTY, WASHINGTON: BEING A PORTION OF THE SOUTHEAST QUARTER
OF SECTION 18, TOWNSHIP 18 NORTH, RANGE 20 EAST, W.M ., IN THE COUNTY OF
KITTITAS, STATE OF WASHINGTON.
Purchase and Sale Agreement
Between Kittitas County and
James and Hazel Treat
Page 13 ofl3
FIRSJ AMENDMENT TO WATER RIGHTS PURCHASE AND SAl,,E AGREEMENT
THIS FIRST AMENDMENT TO WATER RIGHTS PURCHASE AND SALE
AGREEMENT (hereinafter the "First Amendment") is made and entered into as of this 26 1b day
of June, 2018 ("Effective Date ofFirstAmendment"), by and between Kittitas County, a political
subdivision of the State of Washington (hereinafter "the County"), and James IU).d Hazel Treat,
husband and wife (hereinafter"Seller"). Seller and the County are collectively referred to
herein as the "Parties." ·
A. WHEREAS, Seller and the County entered irito that certain Water Rights
Purchase and Sale Agreement dated June 26, 2017, (the "Agreement"), providing for the sale
and purchase of certain water rights appurtenant to property located in Kittitas County,
Washington, as more fully set forth in said Agreement; and
B. WHEREAS, Seller and the County desire to amend the.Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants set forth herein, the
receipt of which are hereby acknowledged, the Parties hereto hereby agree as follows;
1. Section 8.2 of the Agreement is revised to read as follows:
8.2 Funding and Resolution Ratifying Agreement. The Agreement is contingent
upon (i) the County's ability to obtain fimding in order to pay and (ii) the Kittitas
County Board of Commi ioners passing a resolution in the • rdinru-y c ursc of its
business ratify .ing this Agrctmont and appropriating . uffidcnt fund<; for the
purchase of the Water Right no later than August 15, 2018.
2. Section 14.1.3 of the Agreement is revised to read as follows:
14.1.3 Place and Time of Closing. The sale shall be closed in the offices of
AmeriTitle, Ellensburg, Washington (hereinafter the "Closing Agent"), within
twenty-one (2l)days after satisfaction of Contingencies and.shall be in any event
not later than August 15, 2018, which shall be the Termination Date, unless the
Parties agree to an extension of time in . writing.
3. This First Amendment shall be effective upon its mutual execution and delivery
by the Parties. Except as expressly amended and modified ~y this First Amendment the
Agreement is affirmed, confirmed, and ratified by the Parties and shall remain. in full force and
effect. This First Amendment may be executed and delivered by original instruments or
telephonic or electronic mail facsimiles in any number ofcouri.tei'parts, all of which together shall
constitute one and the same First Amendment.
{Signature Page to Follow}
1N WITNESS WHEREOF the P,arties have signed and delivered this First Amendment as
of the day and year first above written.
SELLER: COUNTY:
JAMES TREAT KITTITAS COUNTY \
~
By:~~,~~~ ~ Its: = ~ = 2(';ffli_tl(,
Oatc l)LJA!J ,.,. 2.$_, 20IJ'
2
When recorded return to:
Jim Treat and Hazel Treat
10891 Brick Mill Rd
Ellensburg, WA 98926
Order No .: 246014AM
~----------
08/01/2018 03 1e!12S PM 201B08010057
$98 1110 Page • 1 or 1
ll ar f ft1 11' Deed !IIIER ITITLE .
fl (mu
1ff!U1li11rrm r~ ~llll!l!i!Hlllm
FIE EXCISE TAX PAID
Amount ( 0 ~~. 00
Date Ss]l I g
Affidavit No. _1 0\ '? -l L, Uy
KITTITAS COUNlY TREASURER
av -~Vdflffi ldJtµJL/w/l.
STATUTORY WARRANTY DEED
THE GRANTOR(S) Jacob Leonard Treat and Shelly Treat, husband and wife
for and in consideration of Ten and no/ 100 Dollars ($10.00) and other valuable consideration
in hand paid, conveys, and warrants to Jim Treat and Hazel Treat, husband and wife
the following described real estate, situated in the County of Kittitas, State of Washington :
Parcel 5 of that certain Survey as recorded August 7, 2006, in Book 33 of Surveys, pages 7
and 8, under Auditor's File No. 200608070012, records of Kittitas County, Washington;
being a portion of the Southeast Quarter of Section 18, Township 18 North, Range 20 East,
W.M., in the County of Kittitas, State of Washington.
Subject to: Current Year Taxes, conditions, covenants, restrictions, reservations, easements,
rights and rights of way, apparent or of record .
Tax Parcel Number(s): 951895
Dated: 7./~/ l 'r
~ 'kJ1+: Ja: bLeonard Treat
%1\1 , &Y :rvccJc
Shelly Treat ~
State of Washington } ss
County of Kittitas }
N . Pu lie for tbe State of Washington
Residing a t: Ellensburg
Commission Expires: 9/9/2021
'
DEPARTMENT OF
ECOLOGY
State of Washington
APPLICATION DATE
October 30, 2017
STATE OF WASHINGTON
REPORT OF EXAMINATION
FOR WATER RIGHT CHANGE
Changed Place of Use
Changed Purpose of Use
WATER RIGHT CHANGE APPLICATION NUMBER
CS4-0114lsb10
PRIORITY DATE OF CLAIM PROPOSED FOR CHANGE CLAIM NUMBER PROPOSED FOR CHANGE
June 30, 1872 Court Claim 01141 (S4-84509-J)
NAME AND MAILING ADDRESS SITE ADDRESS (IF DIFFERENT)
Kittitas County
205 West 5th Avenue 10891 Brick Mill Road
Ellensburg, WA 98908 Ellensburg, WA 98926
Total Rate and Quantity Authorized for Diversion
DIVERSION RATE (cfs) ANNUAL QUANTITY (ac-ft/yr)
Primary Reach: 1.08* 249.42*
Secondary Reach: 0.70 110.06
cfs = Cubic Feet per Second; a,:.-ft/yr --/\Cl'e•lect per Vear
* Under the Subbasln 10 adjudication, the Acquavefla court authorized the use of additional quantities of water when surplus
water is available in excess of that needed to satisfy all existing rights. This. water is normally available approximately
30-days during spring. Based upon the herein tentative determination, such additional quantities total 0.98 cfs and
58.08 acre-feet/year. Thus, the combined annual quantity for lnstream flow and mitigation (Including surplus water) equals
249.42 acre-feet.
Purpose(s)
PURPOSE DIVERSION RATE (cfs) ANNUAL QUANTITY (ac-ft/yr) PERIOD OF USE
Primary Reach: 1.08 cfs 249.42* April 15-
lnstream Flow and Mitigation August 15**
Secondary Reach: 0.70 110.06 April 15-
lnstream Flow and Mitigation August 15**
** When frost is out of the ground before April 15, the period of use is modified to allow use of water as soo n as frost is out of
the ground and water can beneficially be used.
Change Report of Examination Page 1 of 15 Water Right File No. CS4-01141sb10
Source Location -Historical Point of Diversion
COUNTY WATERBODY TRIBUTARY TO WATl:R RESOURCE INVENTORY AREA
Kittitas Cooke Creek Cherry Creek 39
SOURCE NAME PARCEL WELL TAG TOWNSHIP RANGE SECTION QQQ LATITUDE LONGITUDE
POD 1: 495034 n/a 18 N 20 E 18 NW¼NE¼ 47°03'32.11" 120°22' 46.44"
POD 2: 951893 n/a SE¼SE¼ 47°02'56.20" 120°22'56.17"
QQ Q: Quarter Quarter Datum: NAD83/WGS84
Place of Use
LEGAL DESCRIPTION OF THE AUTHORIZED PlACE OF USE
Primary Reach
1.08 cfs, 249.42 acre -feet/year for the purposes of instream flow and mitigation for out-of-priority uses
from March 15 to September 15, within Cooke Creek from the historical upstream point of diversion
located at 600 feet south and 200 feet east from the north quarter corner of s·ection 18, being within
t he NW¼NE¼NE¼ of Section 19, T. 18 N., R. 20 E.W.M., and continuing down Cooke Creek to its
confluence with a side channel locally known as Trail Creel< at a point approximately 900 feet south of
the center of Section 19, T. 18 N., R. 20 E.W.M.
Secondary Reach
Unit March Apr May Jun Jul Aug Total
Average Qi cfs 0.05 0 .05 0.23 0.53 0.70 0.56
Qa acre-feet 1.45 2.90 14.27 31.54 43.21 16 .69 110.06
0. 70 cfs, 110.06 acre-feet/year for the purposes of instream flows and mitigation for out of priority
uses, within a side channel locally known as Trail Creek from where to crosses the KRD canal at a point
approxfmately 2,250 feet west and 1,000 feet north of the southeast corner of Section 18, T. 18 N.,
R. 20 E.W.M., and continuing down Trail Creek to its confluence with Cooke Creek, down Cooke Creek
until Cooke Creek is intercepted by Cherry Creek, down Cherry Creek until Cherry Creek is intercepted
by Wilson Creek, down Wilson Creek to its confluence with the Yakima River, and in the Yakima River
from the confluence with Wilson Creek to the Parker Dam .
Provisions
This instream flow water right cannot be used to mitigate permanent new or existing uses until this right
or a portion of this right is held by Ecology in the Trust Water Rights Program through a deed in
Ecology's name that has been recorded in Kittitas County.
The quantities listed here are maximum quantities that MAY be identified for instream flow and
mitigation. This decision does not guarantee that the full consumptive use quantities will be available
for mitigation. Ecology will determine the quantities and suitability of this mitigation in future
negotiations as in the development of Trust Water Right Agreements with Kittitas County or their
successors.
Change Report of Examination Page 2 of 15 Water Right File No. CS4-01141sb10
Findings of Fact
Upon reviewing the investigator's report, I find all facts, relevant and material to the subject application,
have been thoroughly investigated.
Therefore, I ORDER APPROVAL of Change Application No. CS4-01141sb10, subject to existing rights and
the provisions specified above.
Signed at Union Gap, Washington, this
'tk f 1 day of _-+~~---------'' 2018
Trevor Hutton, Section Manager
Water Resources Program/Central Regional Office
Department of Ecology
Change Report of Examination Page 3 of 15 Water Right File No. CS4-01141sb10
Your Righ t To Appea l
This Decision may be appealed pursuant to RCW 34.05 .514(3), RCW 90.03.210(2), and Pretrial Order
No. 12 entered in State of Washington, Department of Ecology v. James Acquavella, et al., Yakima
County Superior Court No. 77-2-01484-5 (the general adjudication of surface water rights in the Yakima
River Basin). The person to whom this Decision is issued, if he or she wishes to file an appeal, must file
the notice of appeal with the Yakima County Superior Court within thirty (30) days of receipt of this
Decision. Appeals must be filed with the Superior Court Clerk's Office, Yakima County Superior Court,
128 North 2 nd Street, Yakima WA 98901, RE: Yakima River Adjudication. Appeals must be served in
accordance with Pretrial Order No. 12, Section Ill ("Appeals Procedures"). The content of the notice of
appeal must conform to RCW 34.05.546. Specifically, the notice of appeal must include:
• The name and mailing address of the appellant;
• Name and address of the appellant's attorney, if any;
• The name and address of the Department of Ecology;
• The specific application number of the decision being appealed;
• A copy of the decision;
• A brief explanation of Ecology's decision;
• Identification of persons who were parties in any adjudicative proceedings
that led to Ecology's decision;
• Facts that demonstrate the appellant is entitled to obtain judicial review;
• The appellant's reasons for believing that relief should be granted; and
• A request for relief, specifying the type and extent of relief requested.
The "parties of record" who must be served with copies of the notice of appeal under RCW 34.05 .542(3)
are limited to the applicant of the decision subject to appeal, Ecology and the Office of the Attorney
General.
All others receiving notice of this Decision, who wish to file an appeal, must file the appeal with the
Yakima County Superior Court within thirty (30) days of the date the Order was mailed. The appeal
must be filed in the same manner as described above .
Please send a copy of your appeal to :
Trevor Hutton, Section Manager
Water Resources Program
Ecology Central Regional Office
1250 W . Alder Street
Union Gap, WA 98903-0009
To find laws and agency rules visit the Washington State Legislature Website: http,i/www.leq.wa.gov/Co.deRe.viser
Change Report of Examination Page 4 of 15 Water Right File No. CS4-01141sb10
INVESTIGATOR'S REPORT
Water Right Application No.: CS4-01141sb10; Kittitas County
Investigator: Meghan O'Brien, Aspect Consulting
Reviewed by: Kelsey Collins
BACKGROUND
This report serves as the written findings of fact concerning Water Right Change Application Number
CS4-01141sb10.
On October 30, 2017, Kittitas County filed an application to change a surface water right from irrigation
to instream flow and mitigation and the place of use to Cooke Creek, Cherry Creek, Wilson Creek, and
the Yakima River. The county is requesting to change Yakima Superior Court Claim 01141 (draft
certificate S4-84509-J). The county also intends to enroll the instream flow right into Ecology's Trust
Water Right Program (TWRP).
Kittitas County is under contract to purchase the subject water right from current owners James and
Hazel Treat (together, "Treat"), and is seeking this change so the water right can be used as part of its
mitigation programs (see below). The contract also provides for Treat to continue irrigating when the
county is not relying on the mitigation for their programs, and that Treat will retain equity interest in
nine (9) acre-feet of consumptive water. At the time of this report, a companion application, S4-35979,
was filed requesting to temporarily irrigate according to the purchase and sale agreement between
Kittitas County and Treat. The county's mitigation programs are as follows:
Water Banking Program:
Under Kittitas County Code (KCC) 13.35.027(2), all new uses of ground water within the Yakima River
Basin must show legal and physical access to water. These users seeking building permits must
provide proof of a legal water right or obtain a mitigation certificate from Kittitas County. The
county's program Is evolving as water rights are acquired and the impacts of pumping groundwater
in all locations across Kittitas County becomes better understood.
Back Mitigation Program:
Kittitas County is also working to acquire offsetting senior water rights for back mitigation, i.e., to
provide mitigation for domestic uses of ground water that were established (1) under the permit
exemption allowed by RCW 90.44.050 or prior to modern permitting requirements, and (2) prior to
implementation of KCC 13.35.027. The quantity required by Kittitas County to achieve this goal is
800 ac-ft/yr of consumptively used water rights . It is the intent of Kittitas County to acquire water
rights deemed adequate for this purpose, place them in the TWRP for instream flows, and to hold
them in perpetuity.
Kittitas County will work with Ecology to add the subject right to an existing Trust Water Right
Agreement or negotiate a new arrangement to ensure the right is held In Ecology's TWRP and how much
and where the mitigation can be used. As for Treat, any future use of this right for mitigation will
require a new authorization or agreement with Ecology.
Change Report of Examination Page S of 15 Water Right File No. CS4-01141sb10
Table 1: Summary of Requested Water Right
. . -
Applicant Name
: Date ~f ~pl_lcation
County
: WRIA -Water Source
'. Tribut2ry to
Place of Use
Kittitas County _
October 30, 2017
Kittitas
39
Cooke Creek
Cherry Creek _
~ooke Creek, Cheery c;r~e ~ yYilso~.9"eek, ~nd the Yakima River
Purpose Instantaneous Rate
{cfs)
Annual Quantity
(ac~ft/yr)
Begin Season End Season
...
lnstrearn Flow and
Mitigation 1.20 275.64 April 15 Se ptem be r
15
Source Name Parcel I Well Tag .,.e>~11ship i _l'l~11~~ _ 1 _Section I QQ Q
Cooke Cr~~k -~--.~/a . n/a Multiple i Multiple , n/a I n/a !
Latitude I _ ':~!1gi~~~~
Na/ ·n/a
WRIA = Water Resource Inventory Area; cfs = Cub ic Feet per Seco nd; ac-ft/yr = Acre-feet per Year; QQ Q = Quarter Quarter Datum: .NI\DIJ3/WGSB 4
Priority Processing
This application qualifies for expedited processing under WAC 173-152-O5O(2)(g) as it is water budget
neutral.
INVESTIGATION
/n consideration of this application, Aspect Consulting reviewed available documents pertaining to the
historic use of water, site conditions, and the potential effect on existing water rights. This included
information submitted by the applicant and pertin_ent Ecology records including stream gage data,
adjudication and water rights records, aerial photos and Landsat images, and water resource policy and
guidance documents.
On November 13, 2017, Meghan O'Brien (Aspect Consulting), Erin Moore {Kittitas County), and James
Treat (landowner) conducted a site visit to discuss past and present water use, and to observe irrigation
infrastructure.
Proposed Use and Basis of Water Demand
History of Water Use
This water right was confirmed under Court Claim No. 01141, in the Yakima River Basin Water Rights
Adjudication for Subbasin No. 10, Kittitas drainage basin, with a Conditional Final Order (CFO) signed on
December 4, 2006. There have been no changes to the water right since the signing of the CFO.
Water is diverted from a point of diversion north of the property (upstream). Treat uses rocks and
tarping to create a temporary diversion dam to direct water into a ditch that flows easterly and
southerly to the fields. This primary ditch is bifurcated approximately six times to span the length of the
property. Once the water reaches the northern border of the property, it flows into a main ditch and is
applied to the fields by small laterals placed at somewhat regular intervals that are used to flood the
fields. Tarps and rocks, which were observed onsite, are used to direct the water.
Change Report of Examination Page 6 of 15 Water Right File No. CS4-0114lsb10
The fields are planted in Timothy hay, although the eastern field is grazed rather than harvested. Treat
hasn't reseeded since buying the property in 2006, but regularly applies herbicides to keep weeds down.
The hay is consumed onsite by livestock, or sold to neighbors. In an average year, Treat grazes up to .
15 horses and 20 cows onsite.
Treat generally takes two cuttings of hay, with the last cutting in early August. After Mr. Treat takes his
last cutting, he puts the fields to bed "wet" in mid-August. In most years, water is not available beyond
this point.
While the authorized place of use includes lands south of the Kittitas Reclamation District (KRD) canal,
these lands are not irrigated with the state water right and are exclusively irrigated with KRD water.
The more southerly point of diversion has been used to fill a pond located directly adjacent to the creek.
The purpose of this pond appears to be recreational and aesthetic, which is outside the parameters of
the water right. Although Ecology allows for de facto changes in some circumstances, because this area
is within the KRD service area, this use will not be considered in trust water calculations.
Proposed Use
Under this proposal, the purpose of use and place of use of this water right would be changed. The
purpose of use would be instream flow and mitigation. The place of use would be in Cooke Creek,
Cheery Creek, Wilson Creek, and the Yakima River.
Extent and Validity
In order to make a water right change decision, Ecology must make a tentative determination on the
extent and validity of the right. Under RCW 90.14.160 any portion of a water right or water right claim
not exercised for a period of five successive years, without sufficient cause, shall be relinquished and
revert to the state.
Since signing of the CFO in December 2006, there have been no changes or actions on this water right.
The tentative determination provided in this section is based on aerial photos and Landsat imagery, crop
water use calculations, and an interview with the property owner. The diversions are not and have not
been historically measured, so water measurement records were not reviewed.
As discussed above, the water user, Mr. Treat, described his operations during the site visit. Treat
reported growing approximately 60 acres ofTimothy hay for onsite consumption, with him selling a
portion to neighbors in good years. Treat generally starts irrigating as soon as the ground thaws and
continues until water availability becomes an issue, which is generally mid-August. In a typical year,
Treat will take two cuttings of hay off his western field with his last cutting occurring in early August.
After his last cutting, he puts the fields to bed wet. The eastern field is planted in Timothy, but used for
horse grazing rather than cutting. Treat does not use his state right on lands south of the KRD canal, so
only lands within the place of use lying north of the KRD will be considered during this extent and
validity review.
Irrigated Area
Aerial photos available in Google Earth were used to determine irrigated acreage during the 2009, 2011,
2013, 2014, 2015 and 2017 season. The irrigation measurements are provided in Table 2, with photos
provided in Attachment 3. Based on these measurements, water needed to irrigate 48.8 acres has been
used at least once every five years, and is available for this change in place and purpose of use.
Change Report of Examination Page 7 of 15 Water Right File No. CS4-01141sb10
Table 2: Irrigated Areas by Year
Photo Date Field 1 Field 2 Total
Irrigation Irrigation Irrigation
5/28/2017 26.6 22.2 48.8
5/6/2015 25.4 22.6 48.0
7/3/2014 25.0 21.0 46.0
7/9/2013 25.4 23.4 48.8
9/2/2011 25.0 23.3 48.3
9/10/2009 25.7 23.6 49 .3
Season of Use
Based on the priority date of the water right and the season of use reported by Treat, Aspect reviewed
Landsat images to determine availability throughout the irrigation season . Based on this, we
determined irrigation ends sometime in mid-August. Based on this information, quantities needed to
Irrigate in late August and September are not available for this change in place and purpose of use.
This water right authorized additional water when flows allow and the ground is thawed. Based on the
Interview with Treat, this water is used when available. The subject water right authorized 0.02 cfs per
acre and the period of additional use is generally 30 days during the spring freshet, consistent with the
Court's determination regarding typically available surplus water. As noted above, the most recent
aerial photography confirms that 48.8 acres are being actively irrigated. Accordingly, and based upon
the authorized instantaneous quantity per-acre, 0 .98 cfs and 58.08 acre-feet of spring freshet water are
available for transfer.
Stockwater
Treat waters approximately 15 horses and up to 20 head of cattle on his property. This use has been
consistent since Treat bought the property in 2006. This stockwater is provided for on the claim sheet
with no additional quantity. It is assumed the stockwater stipulations provided in the Subbasin 10
Report of Referee applies to this water right, insofar as no additional diversionary water was expressly
recognized by the Court for this use.
Other Rights Associated with Project or Place of Use
There are a number of overlapping water rights held by United States Bureau of Reclamation and Kittitas
County for the authorized place of use. There is no relationship between these water rights and the
subject water right. They are merely included within an overly-broad place of use/ service area for the
utilities and governmental entities.
KRD
KRD water is authorized and provided to lands lying immediately south of the KRD Canal, which are also
included in the subject water right's authorized place of use . However, the subject state water right is
not-and so far as available evidence indicates -never has been used on those below-canal lands; they
are solely served by KRD. For the purposes of this water right transfer, only lands north of (and
upgradient from) the KRD were included in the extent and validity review.
Change Report of Examination Page 8 of 15 Water Right File No. CS4-01141sb10
Groundwater Claims
There are three groundwater claims on file with broad legal descriptions that overlap the lands
appurtenant to S4-84509-J. These included G4-11228CL, G4-086833CL, and G4-102477CL.
G4-11228CL was filed during the 1997-1998 claims registry, and claims the right to 2-3 gpm for domestic
use and livestock water. Based on the information presented on this claim, it likely is for a domestic,
permit exempt use per RCW 90.44.050 and predates current limitations on new uses. Being that this
claim is not used for irrigation, it has no bearing on irrigation related to the water right being considered
in this application.
G4-086833CL was filed during the 1997-1998 claims registry, and claims the right to 10 gpm for
domestic use. Being that this claim is not used for irrigation, it has no bearing on irrigation related to
the water right being considered in this application.
G4-102477CL was also filed during the 1997-1998 claims registry, and claims the right to 1 cfs,
600 acre-feet per year for irrigation and livestock. The place of use described in the claim is the SE¼ of
Section 18, T. 18 N., R. 20 E.W.M. It appears that J. Wayne McMeans, the person who filed the claim,
once owned lands east of those appurtenant to S4-84509-J, and, per the site visit, Mr. Treat does not
use this water right to irrigate his property. As such, the stated irrigation area under the claim was
overly broad and inco.nsistent with actual use of water for at least the past ten years. G4-102477CL is
not and may never have been appurtenant to the lands associated with S4-84509-J.
Trust Water Calculations
This section describes how the nonconsumptive and consumptive water use values were calculated to
identify how much water was used to deliver water to the crop (nonconsumptive) and how much water
was lost to transpiration from the crop and evaporated from the soil surface or during application
(consumptive). This calculation is important because where a trust water right can be protected
instream depends on the consumptive and nonconsumptive portions. The primary reach, which is the
location from the historical point of diversion to the point of return flows, consists of nonconsumptive
and consumptive water. While the secondary reach, the area downstream of where return flows enter
back into the stream, is comprised of only consumptive water.
In absence of reliable, direct water use records, Ecology estimates water use according to
GUIDANCE1210 that relies on crop duties from the Washington Irrigation Guide (WIG) to estimate water
use.
The application efficiency for this water right was determined by the court awarded water duty (acre-
feet authorized/acres authorized) and the crop irrigation requirement (CIR), as reported in the WIG.
Generally, clover is used as a surrogate for Timothy hay in water use calculations . The CIR prescribed in
the WIG for clover in the Ellensburg area is 2. 7625-feet of water. The authorized per-acre water duty for
this water right is 4.594-feet (275.64 AF/ 60 acres). To find the application efficiency the CIR was
divided by the water duty, which results in and application efficiency rate of 60.13-percent. Table 1 in
Ecology's GU/D-1210 provides a range for flood irrigation as between 35 and 60 percent. Because the
calculated application efficiency is very close to the average range provided in GUID-1210, and because
the adjudication generally considers site conditions and past use in determining water duties, the
calculated application efficiency was used for developing the trust water right schedules.
To determine the total consumptive use ratio, the average evaporative loss listed in GUID-1210 Table 1
was added to the calculated application efficiency. This results in a consumptive use ratio of 65.13%.
Change Report of Examination Page 9 of 15 Water Right File No. CS4-01141sb10
Because the CIR varies throughout the growing season, water use and consumption also changes
throughout the growing season. To develop a trust water right schedule that more accurately reflects
growing conditions, the monthly CIR provided in the WIG was used to determine the consumptive and
nonconsumptive use over the course of the growing season. To find total use (total irrigation
requirement or TIR), the CIR was divided by the application efficiency. The TIR multiplied by the number
of acres irrigated represents the water that will be available in the primary reach. The consumptive use
was found by multiplying the TIR by the consumptive use ratio of 65.13% for May through August, with a
5-percent consumptive use ratio (attributed to evaporation) before May 1.
The Table 3a and Table 3b below shows how much nonconsumptive and consumptive water is available
for change by month.
Table 3a: Total Irrigation Requirement (TIR)*
Unit March Apr May Jun Jul Aug
Average Qi cfs 0.98 0.98 0.36 0.81 1.08 0.86
Qa acre-feet 29.04 58.08 21.91 48.42 66.35 25.62
* Up to 0.98 cfs; 58.08 acre-feet are available for a 30-day period during the spring time when all other users are
satisfied. This quantity was added to the period between March 15 and April 14. The consumptive use calculations
assume 5-percent evaporative loss.
Table 3b: Consumptive Use
Unit March Apr May Jun Jul Aug
Average Qi cfs 0.05 0.05 0.23 0.53 0.70 0.56
Total
249.42
Total
Qa acre-feet 1.45 2.904 14.27 31.54 43.21 16.69 110.06
Trust Water Place of Use
Ecology typically manages its trust water rights by defining a primary and a secondary reach. The
primary reach is th'e length of stream between the historic point of diversion and the furthest
downstream location where irrigation return flows reentered the river. The secondary reach is the
portion of the stream that received return flow waters while the water right was exercised for its
original out-of-stream purpose. Below is a description of the primary and secondary reach for this trust
water right.
Primary Reach
Based on the location of the point of diversion and where return flows generally return to the system,
the primary reach begins at the historical point of diversion located at 600 feet south and 200 feet east
from the north quarter corner of Section 18, being within the NW¼NE¼NE¼ of Section 19, T. 18 N.,
R. 20 E.W.M,, and continues down Cooke Creek to its confluence with a side channel locally known as
Trail Creek at a point approximately 900 feet south of the center of Section 19, T. 18 N., R. 20 E.W.M.
Secondary Reach
The secondary reach for this trust water right begins at the point where a side channel locally known as
Trail Creek crosses the KRD canal at a point approximately 2,250 feet west and 1,000 feet north of the
southeast corner of Section 18, T. 18 N., R. 20 E.W.M., and continues down Trail Creek to its confluence
with Cooke Creek, down Cooke Creek until Cooke Creek is intercepted by Cherry Creek, down Cherry
Change Report of Examination Page 10 of 15 Water Right File No. CS4-01141sb10
Creek until Cherry Creek is intercepted by Wilson Creek, down Wilson Creek to its confluence with the
Yakima River, and in the Yakima River from the confluence with Wilson Creek to the Parker Dam.
Trust Water Management
Under Water Right No. CS4-01141sb10, Court Claim No. 01141 (S4-84509-J) is being changed to
instream flow and mitigation, and shall be protected against diversion and use by junior priority water
users from the authorized point of diversion to Parker Gage on the Yakima River.
These quantities will be managed by Ecology so mitigation can be available for use under Kittitas
County's programs.
The proposed lands no longer irrigated at the end of the development schedule include 48.8 acres
located in the E½SW¼ and the W½SE¼ of Section 18, T. 18 N., R. 20 E.W.M., lying east of Cooke Creek
and north of the KRD canal. (Future irrigation of such lands may be authorized under the Treats'
companion mitigated permit application.)
Impairment
Under RCW 90.03.380, Ecology must make a determination as to whether existing water rights may be
impaired by this non-diversionary proposed use.
Under RCW 90.38.040(5)(a), a trust water right may be exercised only if Ecology first determines that
the authorization will not impair or injure any other water rights.
The proposed change to instream flow will not cause a reduction in the availability of water in the
Primary Reach. Similarly, no senior water right in the secondary reach will be negatively affected by
increased instream flows during the irrigation season. Therefore, based on these considerations,
transferring the subject water right to trust is not expected to impair other water rights.
Public Interest
The use must not be detrimental to the public interest. At a minimum, the following are considered
when making this assessment.
Consultation with the Department of Fish and WIidiife
Per RCW 90.03.280, Ecology must give notice to the Department of Fish and Wildlife (WDFW) of
applications to divert, withdraw, or store water. WDFW was provided notice of this water right change
when it was presented to the Water Transfer Working Group on April 2, 2018.
State Environmental Policy Act (SEPA)
Under WAC 197-11, a water right application is subject to a SEPA threshold determination (i.e., an
evaluation of whether there will be significant adverse environmental impacts) if any of
the following conditions are met:
• It is a surface water right application for more than 1 cfs, unless that project is for agricultural
irrigation, in which case the threshold is increased to 50 cfs, so long as that irrigation project will
not receive public subsidies;
• It is a groundwater right application for more than 2,250 gpm;
• It is an application that, in combination with other water right applications for the same project,
collectively exceed the amounts above;
Change Report of Examination Page 11 of 15 Water Right FIie No. CS4-0114lsb10
• It is a part of a larger proposal that is subject to SEPA for other reasons (e.g., the need to obtain
other permits that are not exempt from SEPA);
• It is part of a series of exempt actions that, together, trigger the need to do a threshold
determination, as defined under WAC 197-11-305.
This application is subject to environmental review under SEPA. The application requests a change in
quantities greater than 2,250 gpm (1 cfs). Additionally, land use decisions related to the permitted uses
and previous SEPA decisions associated with the County's Water Bank are not exempt.
Kittitas County acted as lead agency for the SEPA review for the proposal. A checklist was completed
and a Mitigated Determination of Non-Significance (MDNS) was issued by the County. Notice of the
MDNS was published in the Daily Record, Ellensburg, Kittitas County, Washington on February 5, 2018
and February 12, 2018. No action was taken on this application for 14 days following the publication of
the determination per WAC 197-11-340.
Public Notice
RCW 90.03.280 requires that notice of a water right application be published once a week, for two
consecutive weeks, in a newspaper of general circulation in the county or counties where the water is to
be stored, diverted, and used. Notice of this application was published in the Ellensburg Daily Record on
February 7th and 14th, 2018.
Consideration of Protests
No protests to this water right application were received.
Consideration of Comments
No comments regarding this water right application were received.
Other Public Interest Concerns
Pursuant to RCW 90.42.040(4)(a) exercise of a trust water right may be authorized only if the
department first determines no detriment to the public interest. Ecology considered how the change in
purpose and acceptance into the TWRP will affect an array of factors such as wildlife habitat, recreation,
water quality, and human health. The environmental amenities and values associated with the area
were taken into account during the consideration of this change application. Consideration of these
factors allows the author to reach the conclusion that this transfer will not be detrimental to the public
interest.
Conclusions
l find that the right to be 'changed is valid, and the change will not impair existing rights.
RECOMMENDATIONS
Based on the above investigation and conclusions, I recommend the request to change this water right
be approved in the amounts and within the limitations listed below and subject to the provisions listed
above.
Primary Reach
1.08 cfs, 249.42 acre-feet/year for the purposes of instream flow and mitigation for out-of-priority uses
from March 15 to September 15, within Cooke Creek from the historical upstream point of diversion
Change Report of Examination Page 12 of 15 Water Right File No. CS4-01141sb10
located at 600 feet south and 200 feet east from the north quarter corner of Section 18, being within
the NW¼NE¼NE¼ of Section 19, T. 18 N., R. 20 E.W.M., and continuing down Cooke Creek to its
confluence with a side channel locally known as Trail Creek at a point approximately 900 feet south of
the center of Section 19, T. 18 N., R. 20 E.W.M. These quantities include surplus water available in
excess of what is needed to satisfy all existing rights, an additional amount of water available for
instream flow up to 0.98 cfs and 58.08 acre-feet normally available approximately 30 days during the
spring.
Secondary Reach
Table 5: Secondary Reach
Unit March Apr May Jun Jul Aug Total
Average Qi cfs 0.05 0.05 0.23 0.53 0.70 0.56
Qa acre-feet 1.45 2.90 14.27 31.54 43.21 16.69 110.06
0.70 cfs, 110.06 acre-feet/year for the purposes of instream flows and mitigation for out of priority uses,
within a side channel locally known as Trail Creek from where it crosses the KRD canal at a point
approximately 2,250 feet west and 1,000 feet north of the southeast corner of Section 18, T. 18 N.,
R. 20 E.W.M., and continuing down Trail Creek to its confluence With Cooke Creek; dowh Cooke Creek
until Cooke Creek is intercepted by Cherry Creek, down Cherry Creek until Cherry Creek is intercepted by
Wilson Creek, down Wilson Creek to its confluence with the Yakima River, and in the Yakima River from
the confluence with Wilson Creek to the Parker Dam.
June 14, 2018
MeghnO'Brien, Aspect Consulting Date
Date
To request ADA accommodation Including materials in a formotfor the visually impaired, call Ecology Water Resources Program at 360-407-6872.
Persons with Impaired hearing may call Washington Relay Service at 711 . Persons with speech disability may coll TTY at 877-833-6341.
Change Report of Examination Page 13 of 15 Water Right File No. CS4-01141sb10
References
United States Soil Conservation Service, 1985. Washington Irrigation. Updated September 1997.
Washington State Department of Ecology, 2005. Determining Irrigation Efficiency and Consumptive Use.
October 11, 2005.
Change Report of Examination Page 14 of 15 Water Right File No. CS4-0114lsbl0
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