HomeMy WebLinkAboutResolution_MOA with Trout UnlimitedKITTITAS COUNTY
DEPARTMENT OF PUBLIC WORKS
2023 AGENDA STAFF REPORT
AGENDA DATE: April 4, 2023
ACTION REQUESTED: Request to Approve a Resolution to Enter into a
Memorandum of Agreement with Trout Unlimited
BACKGROUND:
Tjossem Ditch diverts water from the mainstem Yakima
River for a number of water right holders. Trout Unlimited,
a local environmental non-profit organization, has been
working with these water right holders to provide them
with alternative water supply so that the ditch can be
permanently retired. This project is part of a multi -benefit
effort to remove infrastructure that is at risk, restore
instream flows and habitat, and compliment floodplain
management and efforts by Kittitas County. The
Memorandum of Agreement would enable Kittitas County
to provide flood control and water resource funding to
ensure the project is completed.
INTERACTION:
Public Works.
RECOMMENDATION:
Approve resolution to enter into a Memorandum of
Agreement with Trout Unlimited.
HANDLING:
Return one original to Public Works.
ATTACHMENTS:
Resolution; Memorandum of Agreement
LEAD STAFF:
Arden Thomas, Water Resource Manager.
BOARD OF COUNTY COMMISSI4
COUNTY OF HITTITAS
STATE OF WASHINGTON
RESOLUTION
NO. 2023 -
AUTHORIZING CHAIR SIGNATURE ON A MEMORANDUM OF AGREEMENT BETWEEN
HITTITAS COUNTY AND TROUT UNLIMITED
WHEREAS: Kittitas County has purchased land and water rights previously associated with Tjossem
Ditch to advance floodplain management, create a water rights portfolio for mitigation of
new uses, and secure back mitigation for historic groundwater exempt water use goals;
and
WHEREAS: A floodplain management, streamflow improvement, and habitat enhancement goal
associated with these purchases is to extinguish all water use from the Tjossem Ditch,
which diverts from the Yakima River and conveys water across the floodplain; and
WHEREAS: Trout Unlimited, a Michigan non-profit organization working to restore rivers and recover
and conserve native trout and salmon, has been working with Tjossem Ditch water right
holders to fulfill their water rights from alternative sources; and
WHEREAS: Trout Unlimited has secured $470,000 in funding to enable Tjossem Ditch water right
holders to fulfill their water rights from alternative source ("the Tjossem Ditch Retirement
Project Project'); and
WHEREAS: Trout Unlimited requires an additional $80,000 to complete all work needed to finalize the
Tjossem Ditch Retirement Project; and
WHEREAS: Kittitas County desires to provide up to $80,000 in funding to ensure that the Tjossem
Ditch Retirement Project be completed and to ensure that 14 cubic feet per second of
water associated with water rights formerly diverted through the Tjossem Ditch remains
instream in the Yakima River and that flood control measures will no longer be needed to
protect or maintain the Tjossem Ditch point of diversion.
NOW THEREFORE, BE IT RESOLVED that the Board of County Commissioners of Kittitas County,
Washington, in the best interest of the public, does hereby authorize Chair signature Memorandum of
Agreement between Kittitas County and Trout Unlimited.
DATED this 4' day of April 2023, at Ellensburg, Washington.
Attest:
❑ Clerk of the Board- Julie Kjorsvik
❑ Deputy Clerk of the Board- Mandy Buchholz
BOARD OF COUNTY COMMISSIONERS
KITTITAS COUNTY, WASHINGTON
Cory Wright, Chairman
Brett Wachsmith, Vice -Chairman
Laura Osiadacz, Commissioner
MEMORANDUM OF AGREEMENT
BETWEEN
TROUT UNLIMITED
AND
KITTITAS COUNTY
TJOSSEM DITCH WATER RIGHTS SUPPORT
THIS MEMORANDUM OF AGREEMENT ("MOA") is made and entered into by and between
Trout Unlimited and Kittitas County.
WHEREAS, Kittitas County has purchased land and water rights previously associated with
Tjossem Ditch to advance floodplain management, create a water rights portfolio for mitigation of
new uses, and secure back mitigation for historic groundwater exempt water use goals; and
WHEREAS, a floodplain management, streamflow improvement, and habitat enhancement goal
associated with these purchases is to extinguish all water use from the Tjossem Ditch, which diverts
from the Yakima River and conveys water across the floodplain; and
WHEREAS, Trout Unlimited, a Michigan non-profit organization working to restore rivers and
recover and conserve native trout and salmon, has been working with Tjossem Ditch water right
holders to fulfill their water rights from alternative sources; and
WHEREAS, Trout Unlimited has secured $470,000 in funding to enable Tjossem Ditch water right
holders to fulfill their water rights from alternative source ("the Tjossem Ditch Retirement Project
Project'); and
WHEREAS, Trout Unlimited requires an additional $80,000 to complete all work needed to
complete the Tjossem Ditch Retirement Project; and
WHEREAS, Kittitas County desires to provide up to $80,000 in funding to ensure that the Tjossem
Ditch Retirement Project be completed and to ensure that 14 cubic feet per second of water
associated with water rights formerly diverted through the Tjossem Ditch remains instream in the
Yakima River and that flood control measures will no longer be needed to protect or maintain the
Tjossem Ditch point of diversion.
NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth
herein, it is agreed by and between Trout Unlimited and Kittitas County as follows:
I. SCOPE
Kittitas County will provide up to $80,000 in funding, allocated on a refundable basis, to Trout
Unlimited, to implement the Tjossem Ditch Retirement Project to completely close Tjossem Ditch.
The Tjossem Ditch Retirement Project implements the series of water right dispositions shown in
Appendix A.
H. PERIOD OF PERFORMANCE
This Agreement will go into effect on April 1, 2023, and shall be in place until December 31, 2024,
unless modified as provided herein.
III. PROVISOS
A. Nothing in this MOA is intended to create any rights in any party not a party to this MOA nor
third -party beneficiaries.
B. Nothing in this MOA creates a resource obligation outside that stated within this MOA.
C. This is not an exclusive agreement, and both parties reserve the right to compensate additional
professional service providers.
D. Indemnifieation/Hold Harmless. Kittitas County and Trout Unlimited agree to hold each
other and their officers, officials, employees and volunteers harmless from any and all claims,
injuries, damages, losses or suits including attorney fees arising out of or resulting from the
acts, errors or omissions of the parties in the reasonable performance of their duties under this
Agreement, except for those injuries and damages that are caused or are attributable to the
negligence of the agency. Should a court of competent jurisdiction determine that this
Agreement is subject to RCW 4.24.115, then in the event of liability for damages arising out
of bodily injury to persons or damages to property caused by or resulting from the concurrent
negligence of Kittitas County, Trout Unlimited, or their officers, officials, employees and
volunteers, the parties' liability, including the duty and cost to defend shall be only to the
extent of the responsible parties' negligence. The provisions of this section shall survive the
expiration or termination of this MOA.
E. Attorney's Fees. If any legal action or proceeding is commenced relating to this MOA, the
prevailing party is entitled to recover its reasonable attorneys' fees and costs.
F. By signing this MOA, both parties certify that neither they not their officials are not debarred,
suspended, declared ineligible, or voluntarily excluded from participation in this transaction
by any federal agency or department.
IV. RECORDS MAINTENANCE
The parties to this contract shall each maintain books, records, documents, and other evidence which
sufficiently and properly reflect all direct and indirect costs expended by either party in the
performance of the services described herein. These records shall be subject to inspection, review or
audit by personnel of both parties, other personnel duly authorized by either party, the Office of the
State Auditor, and federal officials so authorized by law. All books, records, documents, and other
material relevant to this MOAwill be retained for six years after expiration and the Office of the State
Auditor, federal auditors, and any persons duly authorized by the parties shall have full access and the
right to examine any of these materials during this period.
Records and other documents, in any medium, furnished by one party to this agreement to the other
party, will remain the property of the furnishing party, unless otherwise agreed. The receiving party
will not disclose or make available this material to any third parties without first giving notice to the
furnishing party and giving it a reasonable opportunity to respond. Each party will utilize reasonable
security procedures and protections to assure that records and documents provided by the other party
are not erroneously disclosed to third parties.
VIII: INDEPENDENT CAPACITY
The employees or agents of each party who are engaged in the performance of this MOA shall continue
to be employees or agents of that party and shall not be considered for any purpose to be employees or
agents of the other party.
IX: AGREEMENT ALTERATIONS AND AMENDMENTS
This MOA may be amended by mutual agreement of the parties. Such amendments shall not be
binding unless they are in writing and signed by personnel authorized to bind each of the parties.
X: TERMINATION
Either party may terminate this MOA upon 30 days prior written notification to the other party. If this
MOA is so terminated, the parties shall be liable only for performance rendered or costs incurred in
accordance with the terms of this Agreement prior to the effective date of termination.
XI: GOVERNANCE
This MOA is entered into pursuant to and under the authority granted by the laws of the State of
Washington and any applicable federal laws. The provisions of this MOA shall be construed to
conform to those laws.
In the event of any inconsistency in the terms of this MOA, or between its terms and any applicable
statute or rule, the inconsistency shall be resolved by giving precedence in the following order:
a.) Applicable state and federal statutes and rules;
b.) Scope of work (Attachment A); and
c.) Any other provisions of the agreement, including materials incorporated by reference.
XII: WAIVER
A failure by either party to exercise its rights under this MOA shall not preclude that party from
subsequent exercise of such rights and shall not constitute a waiver of any other rights under this MOA
unless stated to be such in a writing signed by an authorized representative of the party and attached to
the original MOA.
XIII: SEVERABILITY
If any provision of this MOA or any provision of any document incorporated by reference shall be held
invalid, such invalidity shall not affect the other provisions of this MOA which can be given effect
without the invalid provision, if such remainder conforms to the requirements of applicable law and
the fundamental purpose of this MOA, and to this end the provisions of this MOAare declared to be
severable.
XIV: ALL WRITINGS CONTAINED HEREIN
This MOA contains all the terms and conditions agreed upon by the parties. No other understandings,
oral or otherwise, regarding the subject matter of this MOA shall be deemed to exist or to bind any of
the parties hereto.
XV: CONTRACT MANAGEMENT
The contract manager for each of the parties shall be responsible for and shall be the contact person
for all communications regarding the performance of this MOA.
The Contract Manaser for Trout Unlimited is:
Lisa Pelly, Director
Trout Unlimited
103 Palouse
Wenatchee, WA 98801
The Contract Manager for the County is:
Arden Thomas, Kittitas County Water Resources Manager
Kittitas County Public Works
411 N. Ruby Street, #1
Ellensburg, WA 98926
IN WITNESS WHEREOF, the parties have executed this Agreement.
For:
By:
Title:
Date:
Kittitas County
/Wuq l
For: Trout Unl mite—
By: Warren Colyer
Title: Director
Date: a3/1a/y.Z3
Appendix A
Water Rights Addressed by
Tjossem Ditch Retirement Project
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Tjossem POD
Tjossem Ditch (approx.)
Mod PAND
Transfer #1
Transfer #2
PAND (in -process)
—� BNSF
-
Wilson Creek
Well Sites
0 0.25 0.5
This map is intended for Tjossem Ditch discussion
purposes and should not be relied upon for accuracy.
ipam
PoNm
1 Miles
Sources: Eon, HERE. Gamin, Intermap, increment P Corp.. GEB6j0.USGS. FAC
NPS, NRCAN, Geo6ase, IGN, Kadester NL, Ordnance Survey, Es 'Japan, METI.
Ertl China (Hong Kong), (c) OpenSbeetMap contributors, and the G User
Community ,-
Figure 1. The Tjossem Ditch and its approximate flow paths to separate water users are identified with
each water user identified according to their implementation step.