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HomeMy WebLinkAboutExhibits A, B , & C# CLAIMANT NAME: Certificate Number: Subbasin: Source: Use: Period of Use: Quantity: Priority DaLe: Point of Diversionl Place of Use: Limitations Of Use James Treat & Hazel l[reat Cooke-CoLenan IuIuC COURT CLA]M NO. 01141 s4 -8 4 50 9-,1 l-0 Kittitas Cooke Creek Irrigation of 60 acres and stock water April 15 through September 15 1.20 cubi-c feet per seeond' 2'75.64 acre-feet per year ,June 30, 18?2 600 feet south and 200 feet east from the north quarter corner of Section 18, being within the NWkNwlNEk of Section 18,' AND, 1200 feet north and 450 feet west from the south quarter corner of Section 18, being within the NE tSETtSWk of Section 18r BOTH WITHIN T. 1S N., R. 20 E.W.M. Those portions of the E SVIta and the WlrSEr'{ of Section 18' T 18 N., R. 20 E.W.M., lylng east of Cooke Creek. Vitrhen frost j.s out of the ground before April 15, the period of use is modifi-ed to al1ow 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 additionaf 1.2 cubic feet per second may be diverted. Thls water will normally be available approximately 30 days during the spring, which would result in up to ?1.28 acre-feet per year being used in addltion to that authorized herein. ExFbt 6xhtbib t WATER RIGHT PURCHASD AND SALE AGREEMENT This Purchase and Sale Agreement ("this Agreement") is entered into between, Kittitas County, a political subdivision of the State of Washington County"), and James and Hazel Treat (hereinafter "sellers"), as of 2017 {*the Effective Date"). tr'actual Background A. Sellers own Water Right Certificate No. S4-84509-J, filed as Water Right Claim No. 01141 and confirmed in the Yakima Superior Cotxt Ecologt 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"), 27 5 .64 acre-feet per year ("AF/year") for inigation 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 curently is appurtenant to Kittitas County parcel numbers I 8-20- 1 8000-0030, I s-20- I 8000-003 1, I 8-20- I 8000-0006, I 8-20- 1 8000-0032 and I 8-20- 1 8000-003 3, 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 f'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 entirc quantity of water ultimately deemed to have been beneficially used under the Water Right to the Washington State Trust Water Rights Program pursuant to Chapers 90.42 and90.38 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: l. Purchase Plice for Sale Ouantitv untler Water Risht. 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 of13 ($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 Progtam for mitigation of groundwater use in Kittitas County, less the Earnest Money Deposit then held by the Closing Agent and any interest eamed 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 Monev. 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 TenThousand Dollars ($10,000.00) in immediately available funds (the "Eamest Money Deposif'). The Earnest Money Deposit shall be held in an interest-bearing money market-type account by the Closing Agent. lnterest on the Earnest Money Deposit shall be for the benefit of whichever party is entitled to the Eamest 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, f,'uture Watcr Use bv Scllcrs. 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 Fallowine Corenant and Monitorins. 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 Quantrty 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. Wnter Rieht Chanee Annlication. 5.1 Pre-Filing Water Riqht Review. In connection with preparation of the below-described Change Application for filing, the Parties agree that Aspect Consulting shall underlake 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 ofhistoric 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 Parties. Thereafte4 and EXCEPZ upon exercise of Purchase and Sale Agreement Between Kittitas Coungr and James and HazelTreat 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 Chnnqe Annlie#ion Filins nn.l Fccq. 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,ooo.oo). 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. 5.3 Sellers' Reserved Ouantity. The Change Application will request approval for future use of Sellers' Reserved Quantity on Kittitas County parcel numbers l8-20-18000-0030, 18-20-18000-0031 and l8-20-18000-006 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. Ecolow Detcrminntion of Trust Waler Risht. 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 quantiffing 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. Ecologv Review. Assumotion of the Risk. and Hold Harmless. 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 Righf 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 l3 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, Contineenci$. 8.1 Sellers' Cancellation Risht. In the event that Aspect Consulting's Pre- Filing Water Right Revieq 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,withinfive (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 Counfy of Sellers' election to exercise Sellers' Cancellation Right, the Parties shall have no funher 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 Fundine and Resolution Rafifvins Asreemcnt. 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. ln 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 Ecolow Anurovsl. Prior to Closing, all of the following conditions will have occured 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-govemmental 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 of l3 the Change Application or any governmental or quasi-govemmental decisions relating thereto will have been resolved to County's satisfaction. 8.4 Ouantitv of Water Annroved bv Ecolow as Trust Watcr Risht. Sell'ers 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 AE/acre of consumptive use and result in approximately 156 AFiyear 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 Chsneg. 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 ofadditional, or any adverse change to, any legal restrictions or other circumstances. 8.6 Waiver of Contingencies. 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. When and How Purchase 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. I0. Lenseback Provisions. Upon Closing, the County agrees to lease to Sellers and Sellers agree to lease from County at least enough water sufficient to inigate the full number of inigable acres identified by Ecology pursuant to the Change Application each year ("Leaseback Water") for twenty (20) years from the date of Closing Qrereinafter "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 puqposes 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 ofthe Purchase and Sale Agreement Between Kittitas County and James and Hazel Treat Page5ofl3 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 Diskict for each year of the Lease (hereinaft er "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 ysat's Leaseback Price. Il. Sellers's \rysmantics and Renresentatioss. 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 indemniff, protect, defend and hold County (and County's agents, employees, officers, directors and members) harmless from and against any and all claims, liabilities, losseso damagesn costs and expenses, of any nature whatsoever, including, without limitation, attorneys' fees, arising from or related to any untruth, inaccuracy or breach ofany ofSellers' warranties or representations, whether contained in this Section or elsewhere in this Agreement. All of Selters' representations and warranties contained in this Agreement will be true and conect 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 fught and protected from relinquishment during that same time periods, (ii) no period of five consecutive years ofpartial or total nonuse has occuned 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 l3 obligations of any kind affecting the Water Right. 14. Closine. 14.1 Definitions. 14.1.1 Closine Aeent. 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 Cl6sine. For purposes of this Agreement, "date of closing" shall be conshued as the date upon which all appropriate documents are recorded and proceeds of this sale are available for disbusement to Sellers. Funds held in reserve accounts pusuant to escrow instructions shall be deemed, for purposes of this definition, as available for disbursement to Sellers. 14.1.3 Plscc nnd TLmc of Closins. The sale shall be closed in the offices of AmeriTitle, Ellensburg (hereinafter the o'Closing Agent"), within twenty-one (21) days after the satisfaction of Contingencies. 14.2 Oblisations of Countv and Sellers at Closing. County and Sellers shall deposit with the Closing Agent at least three (3) days before the closing date all instruments, documents, and monies necessaxy close the sale in accordance with this Agreement. l{.3. . Pavment 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 CoslB to be naid bv $ellers. Sellers shall pay all real estate excise taxes, attomey's fees incuned by Sellers, if any, and other charges normally borne by Sellers. 14.3.3 Costs to be Paid by Counfv. County shall pay County's attomey 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 ttris transaction will Purchase and Sale Agreement Between Kittitas County and James and Hazel Trcat Page 7 of l3 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. t6. Attornevs' Fecs. If either party hereto is required to retain an attomey 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. 17. Govemins Law. This Agreement shall be interpreted, construed and enforced according to the laws of the State of Washington. 18. Notices. 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 fust 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 Agreernent 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. Section Hcadinqs. The word or words appearing at the commencement of sections and subsections of this Agteement 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. Invaliditv. 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?. Leqal Relationshins. 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 Courty and James and Hazel Treat Page 8 of l3 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" Assiqnment: Succcssors. 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 ofno 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. Entire Agrcement. All understandings and agreements previously existing between the parties, if ann 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 modifred only by a written amendment executed by all parties. 25. Intcrnretution. 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 eitherparty as the drafter hereof. 26. Counternarts. 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. AmendmenL 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 Page9 ofl3 James SELLERS: JAMES TREAT Date: HAZEL TREAT Date: Sellers's Address and Phone 10891 BrickMill Rd. Ellensburg, WA 98926 (2s3.26r.68rc Purchase and Sale Agreement Between Kittitas County and James and Hazel Treat COUNTY: Date: By: Its: County's Address and Phone: b LLlwxTru, , t'nrY?U Page l0 of l3 ACKNOWLEDGEMENTS State of Washington County or l{ i ELtt/tS .n I csrtify that I know or have satisfactory evidence thatJanra5Tfrathusband of W4.AJE-XI-- 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: tl filr.t t E-t the State of Washingtonux expires:g Dated: Y PUBLIC State of Washington County or Ki[*i"1fi,5 Op I certify that t know or have satisfactory evidence thut]dtt)'Tft$wife of "J fumtb.Jfl-nJ-, is the person wlto appeared trefore 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 u 2blt1 r{1/ f lo at ,14'nb the State of Washington t.L 14 State of Washington County of Kittitas I certify that Purchase and Sale Agreement Between Kittitas County and James and Hazel Treat expires: g-/t q hg thatl<gJJLr:f **n.*"' appointmentexpires: ,9 Itq It Or W I know or have satisfactory evidence 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, purposes mentioned in to be free and voluntary act ofsuch entity for the uses and Dated: ll law I "r-ft-tc)PUBLIC the State of Washingtonat El(-t t1.5 l*ut l..r.-rt- t ll nb ^oggro 06. Page ll of13 I CLAIMANT NAME: Certificate Number! Subbasin: Souree: Use: Period of Use: Quantity: Priority Date: Point of Di.vereion: Place of Use! l,lmltations of Use i Purchase and Sale Agreement Between Kittitas County and James and HaznlTrbat EXHIBIT A: Water Right Certilicate ttam€a Treat & Hazel Treat COURT CITAIM NO. 01141 s4-84509-J 10 Kittltas Cooke Creek Irrlgatlon of 60 acres and stock water Aprtl 15 through September 15 1".20 cubJc feet per second, 275.64 acre-feet per year .Tune 30, 18?i 600 feet south and 200 feet east from the north quartercorner of Section 18, belng within the NWrrNWrzNEk of SectlonL8; AND, 1200 feet north and 450 feet west from the southquarter corner of Sectlon LB, being withj.n the NE+{SE14S[{q of,Section 18/ BOTH WTTHIN T. 18 N., R. 20 E.W.M. Those portlons of the ErrSWlc and the WlrSEk of SeJfon 1gr T,18 N,, R, 20 E,W.M., lying east of Cooke Creek. When frost ls out of the ground before Aprtl 15, the perlodof use ls modlfied to alLow use of water as soon as frostis out of the ground and water can beneficlally be used, When surplus water ls available 1n excess of that needed tosatisfy all exlstlng r:lghts, an additional 1.2 cubic feetper second nay be diverted. This water w1Il normally beavallabLe approxirnately 30 days during the spring, whichwould result ln up lo "1L,28 acre-feet per year being usedln addition to that authorlzed 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 7,2OO6IN BOOK 33 OF SURVEYS AT PAGES 7.8 LINDER AUDITOR'S FILE NO. 20060S07-0012 RECORDS OF KITTITAS COUNTY, WASHINGTONI 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 CERTATN SURVEY AS RECORDED AUGUST 7,2OO6IN BOOK 33 OF SURVEYS AT PAGES 7-8 UNDER AUDITOR'S FILE NO. 20060807-0012 RECORDS OF KITTITAS COLINTY, WASHINGTON: BEINGA PORTION OF THE SOUTHEASTQUARTER OF SECTION 18, TOWNSHIP I S NORTH, RANGE 20 EAST, W.M., IN THE COI.INT' OF KITTITAS, STATE OF WASHINGTON. PARCEL:951893 PARCEL 3 OF THAT CERTAIN SURVEY AS RECORDED AUGUST 7,2OO6IN 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 QUARTEROF 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 7,2OO6IN BOOK 33 OF SURVEYS ATPAGES 7.8 UNDERAUDITOR'S FILENO.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 COTINTY OF KITTITAS, STATE OF WASHINGTON. PARCEL:951895 PARCEL 5 OF THAT CERTAIN SURVEY AS RECORDED AUGUST 7,2OO6IN BOOK 33 OF SURVEYS AT PAGES 7.8 TJNDERAUDITOR'S FILENO.20060807.0012 RECORDS OF KITTITAS COUNTY, WASHINGTON: BEING A PORTION OF THE SOUTHEASTQUARTER OF SECTION 18, TOWNSHIP 18 NORTH, RANGE 20 EAST, W.M., IN THE COTJNTY OF KITTITAS, STATE OF WASHINGTON. Purchase and Sale Agreement Between Kittitas County and James and Hazel Treat Page 13 of13 nqql A$|DI{DMEI{T rO WATER RIGHTS P[IRCHASE AND SALn AGREEMENT THIS FIRST AMENDMENT TO WATER RIGHTS PI-]RCHASE A}TD SALE AGRSEMENT (hereinalier the "First Amen&nenf') is made and entered into as ofthis 26th day of Junq 2018 ("Effective Date of FintAmendmenf'), by and between Kittitas County, a political subdivision of the State of Washington (hereinafter "*te County"), and James a4d Hazel Treat, husband and wife (hereinafter "sellet''). Seller and the County are collectively refened to herein as the "Parties." A. WIIEREAS, Seller and the County entered into that certain Water Rigftts Purchaseand Sale Agreement dated June 26,2A17,(the "Agreement"), providing for the sale and purchase of certain water rights appurtenant to property located in Kittitas Cqunty, Washington, as more fully set forth in said Agreement; and B. WHEREAS, Seller and the County desire to amend the Agreement' NOW TIIEREFORE, IN CONSIDERATION ofthe mutual covenants set forth hercin, the receipt of which are hereby acknowledged, the Parties hereto hereby agr€e a.s follows: 1. Section 8.2 of the Agreement is revised to read as follows: 8.2 Funding and Resolution RatifyingAgrement' TheAgreement is contingent upon (i) the County's ability to obtain ftnding in order to pay and (ii) the Kittitas County Board of Commissioners passing a resolution in thc ordinary oourse of its business ratifying this Agreement and approprinting suflicient funds for the pruchase of ths Water Right no later than August I 5, 201 8. 2. Section 14.1.3 oftheAgreement is rcvised to read as follows: 14.1.3 Place and Time of Closing. The sale shall be closed in the offices of AmeriTitle, Ellensburg, Whshington (hereinafter the "Closing Agent"), wlthin twenty-one (21) days after satisfaction of Contingcncies and shall be in any event not lrter than August 15, 201t, which shall be the Termination Date' unless the Parties ogree to an extcnsion of time in writing' 3. This First Amendment shall be effective upon its mutual execution and delivery by the Parties. Except a$ cxpressly amended and modified !y this First Amendment, the Agreement is affrmred, confirmed, and ratified by the Parties and shall remain in full force and effect. This First Amendment may be executed and delivered by original inshments or telephonic or electronic mail facsimiles in any number of counterparts, all of which together shall constitute one and the same FirstAmendment. {Sigrature Page to l'ollow} lN WITNESS WHEREOF the P.arties have signed and delivered this FirstAmendment as of tho day and year first above witten. SELLER:COUNTY: JAMES TREAT KITTITAS COUNTY .C By: Date:n^t'W HAZELTR.EAT Date:g o:\L,t6Mtt'hil, J@ruairbbdrhll sSA c26li.F1N,tl.dq 2 James Treat OA|OUAOIE 03:55:25 Pll$99.00 Psss:1 ofllarranty Dlrd AITERITITLEKlttltrr County nudltor lllllfi tilltuillilltilil]ililtilil]ilil]llilillltilililtilt ilililt 20t80aoMo31 1 When recorded return to: Jirn Treat and Hazel Treat 10891 Brick Milt Rd Ellerrsburg, WA 98926 RE EXCISE TAX PAID Amount (ot40.ocl oate *JWT AffidavitNo.'l R - rr uct Order No.: 246OL4AM KITTITAS OOUNTY TREASURER By STATUTORY WARRANTY DEED THE GRANTOR(S) Jacob Leoaard Treat aud Shelly Treat, husbaud and wifs for and in consideration of Ten and no/ 100 Dollars ($10.00) and other valuable consideration in hand paid, conveys, and warrants to Jlm Treat and Hazel Treat, husband and wlfe the following described real estate, situated in the County of Kittitas, State of Washington: Parcel 5 of that certain Sunrey as rocorded August 7, 2006, in Book 33 of Sunreys' pages 7 and 8, undcr Audltor's File No. 2OO6OEO7OO12, records ofKlttltas Count5r, Washlngton; being a portlon bf the Southeast Quarter of Sectlon 18, Townshlp 18 North, Range 2O East, W.M., in the Coirnty of Kittitas, State of Washington. Subject to: Current Year Taxes, conditions, covenants, restrictions, reservations, easements, riglits and rights of way, apparent or of record. Tax Parcel Number(s): Dated:1/?-4(ft \ --i" "1-../ 1^J-- b Leonard Treat Shelly Treat State of Washington ) ss County of Kittitas ) On this .Q.6S day of July, 2018, before me, Schiree Minor a Notary Public in and for said state, personally appeared Jacob konard Treat and Shelly Treat, known or identilied to me to be the person(s) whose name(s) is/are subscribed to the within Instrument and acknowledged to me that he/she/they executed same. IN WITNESS WHEREOF, I have hereunto year in this certificate first above written. set my hand and seal the day and 95 1895 a\^^., c\tn t/- NdkE Putfic for the State of washington Resiim.-g at r E lle n sburg Commission Expires: 9 I 9 | 202I DEPARTMENT OF ECOLOGY State of Washlngton STATE OF WASHINGTON REPORT OF EXAMINATION FOR WATER RIGHT CHANGE Changed Place of Use Changed Purpose of Use APPI.ICATION DATE WATER RIGHT CHANGE APPTICATION NUMBFR October 30,2OL7 CS4-01141sb10 PRIORIW DATE OF CTAIM PROPOSED FOR CHANGE CTAIM NUMBER PROPOSED FOR CHANGE june 30, 1872 Court Claim Ot74L (S4-84509-J) NAME AND MAITINC ADDRESS SITE ADDRESS (IF DIFFERENT} Kittitas County 205 West 5th Avenue Ellensburg, WA 98908 10891Brlck MillRoad Ellensburg, WA 98925 Feet per ac-ft/yr = Acre-fe€t per Year * UndertheSubbaslnl0adjudication,theAcguavellocourtauthorizedtheuseofadditional quantitiesofwaterwhensurplus wjter is avajlable in excess of that needed to satisfy all existing rights. This water is normally avallable approximately 3g-days during sprlng, 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 mitlgation (including surpfus water) equals 249,42 acrc-feet, ** 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, Erhiuitc ANNUAL quANTlrY (ac-ft/yr)DlvERSloN RATE (cfs) 249.42*Primary Reach: 1.08* 110.06Secondary Reach:0.70 Total Rate and Quantity Authorized for Diversion PEN]OD OF USEANNUAT qUANTITV (ac-ft/yr)DIVERSION RATE (cfs)PURPOSE April 15 - August L5**1.08 cfs 249.42*Primary Reach: lnstream Flow and Mitigation 110,06 April L5 - August 15*xo.70Secondary Reach: lnstream Flow and Mitigation Purpose(s) Change Repoit of Examination Page 1 of 15 Water Right File No. CS4-01141sb10 TRIBUTARY TO WATER RESOURCE INVENTORY AREACOUNTYWATERBODY Cherry Creek 39KittitasCooke Creek Source Location - Historical Point of Diversion SOURCE NAME PARCET WEI"TTAG TOWNSIilP RAN6E SECTION qqa I.ATITUDE LONCITUDE POD 1.: POD 2: 495034 951893 nla n/a 18N 20E 18 NW%NE% sE%sE% 47"O3',32.LL" 47"02',56.20" 120022'46.44" L20"22'56.L7" I,EGAL DESCRIPTION OF THE AUTHORIZED PI.ACE 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 m March 1.5 to September L5, 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 section 18, being within the NW%NE%NE% 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 centerof Section L9, T. L8 N., R,20 E.W.M. 0,70 cfs,110.06 acre-feet/year for the purposes of instream flows and mitigation for out of priority uses, within a side channe[ locally known as Trail Creek from where to crosses the KRD canal at a point approximately 2,25O feet west and 1,000 feet north of the southeast corner of Section 18, T. L8 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 the confluence with Wilson Creek to the Parker Dam Unit cfs 110.05acre-feet March Apr May Jun Jul Aug Total Reach 0.05 1.45 0,05 2.90 o.23 74.27 0,53 31.54 0.70 43.21 0.56 16.69 Average Qi Qa Place of Use Provisions QQQ= QuarterQuarter Datumi NAD83/WGS84 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 Examinatlon 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 tItu day of Trevor Hutton, Sectioh Manager Wate r Resources Progra m/Centra I Regiona I office Department of Ecology 2AL8 Z^Ktu Change Report of Examination Page 3 of 15 Water Right File No. CS4-01141sb10 Your Right To Appeal This Decision may be appealed pursuant to RCW 34.05.514(3), RCW 90.03.2t012l1, and PretrialOrder No. L2 entered in Sfofe of Woshington, Department of Ecology v. tames Acquavella, et al.,Yakima County Superior Court No. 77-2-01"484-5 (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 wlthin thirtv (30) days of receipt of this Decision. Appeals must be filed with the Superior Court Clerk's Office, Yakima County Superior Court, L28 North 2nd Street, Yakima WA 98901, RE: Yakima River Adjudication. Appeals must be served in accordance with Pretrial Order No. 12, Section lll ("Appeals Procedures"). The content of the notice of appeal must conform to RCW 34.05.546. Specifically, the notice of appeal must include: r The name and mailing address of the appellant; r Name and address of the appellant's attorney, if any; r The name and address of the Department of Ecology; r The specific application number of the decision being appealed; . A copy of the decision; r A brief explanation of Ecology's decision; o ldentification of persons who were parties in any adjudicative proceedings that led to Ecology's decision; r Facts that demonstrate the appellant is entitled to obtain judicial review; r The appellant's reasons for believing that relief should be granted; and o A reguest for relief, specirying the type and extent of relief requested. The "parties of record" who must be served with copies of the notice of ippeal 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. Allothers receiving notice of this Decision, who wish to file an appeal, must file the appeal with the Yakima County Superior Court within thirtv (301 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 ond agency rules visit the Woshlngton State Leglsloture Website: http://www,lea.wa.aov/CodeReviser Change Report of Examination Page 4 of 15 Water Right File No. CS4-01.141sb10 INVESTIGATOR'S REPORT Water Right Application No.: CS4-01"141sb10; 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 C54-01141sb10. On October 30,2017, Kittitas County filed an application to change a surface water right from irrigation to instrearn 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 lntends 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"l, 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 ls 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, 54-35979, 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(2l,, 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-ftlyr of consumptively used water rights. lt 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 willwork 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 forTreat, any future use of this right for mitigation will require a new authorization or agreement with Ecology' Change Report of Examination Page 5 of 15 Water Right File No. CS4-0114lsb10 r Appllcant Name i D_g_te 9f 4pp!,ica1ion caytt!{ WRIA Water Source Table 1: Summary of Requested Water Right Kittitas County October 30,2Ot7 ritiitas 39' Cooke Creek Tribulg1y_t9 Place of Use Cherry Creek Cooke Creek, Cheery 9fgg& Wihgn -C_r-e_g!r lnl the Yakima River Purpose lnstream Flow and Mrlis?Iien lnstantaneous Rate (cfs) L.20 Annuat Quantity (ac-ft/yr) 275.64 Begin Season €nd Season April 15 September 15 i I I Latitude longitude ,j ruu/ ,.t_l?- Datum: ||AD83/WGS84 Pilority Processlng This application qualifies for expedited processing under WAC 773-L52-O5O(2Xg) as it is water budget nei-rtral. INVESTIGATION ln consideration of this application, Aspect Consulting reviewed available documents pertaining to the historlc use of water, site conditions, and the potential effect on existing water rights. This included information submitted by the applicant and pertinent Ecolog'y records including stream gage data, adjudication and water rights records, aerial photos and Landsat images, and water resource policy and guidance documents. On November 73,2OL7, 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. 0LL4L, in the Yakima River Basin Water Rights Adjudication for Subbasin No. 10, Kittitas drainage basin, with a Conditional Final Order (CFOI 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 Rlght File No. CS4-011.41sb10 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 livestocl<, or sold to neighbors. ln 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. ln 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 circurnstances, 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 ln 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 affes of Timothy 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. ln 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 horsegrazingratherthancutting. TreatdoesnotusehisstaterightonlandssouthofthefROcanal,so only lands within the place of use lying north of the KRD will be considered during this extent and validity review. lnigated Area Aerial photos available in Google Earth were used to determine irrigated acreage during the 2009, 201"1, 2OL3,2O!4,2015 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 Flle No. CS4-01141sb10 Table 2: lrrigated Areas by Year Photo Date Field 1 lrrigation Field 2 lrrigation Total lrrigation sl2s12017 26.6 22.2 48.8 s/6/2OLs 25.4 22.6 48.0 7/3/2074 25.O 2L.O 46.0 Tlel2AB 25.4 23-4 48.8 9/2/201"1"25,0 23.3 48.3 s/ro/200e 25.7 23.6 49.3 Seuson 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 availa ble 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. lt is assumed the stockwater stipulations provided in the Subbasin 1-0 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 Proiect 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 Groundwdter Claims There are three groundwater claims on file with broad legal descriptions that overlap the lands appurtenanttos4-84509-J. TheseincludedG4-L1228CL,G4-086833C1,andG4-102477CL. G4-7I228CLwas 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. G4-086833C1was filed during the 1997-1.998 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-LO2477CL was also filed during the 1.997-1998 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 SE% of Section L8, T. 18 N., R. 20 E.W.M. lt appears that J. Wayne McMeans, the person who filed the claim, once owned lands east of those appurtenant to S4-84509-J, and, perthe 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 inconsistent with actual use of water for at least the past ten years. G4-7O2477CLis not and may never have been appurtenant to the lands associated with 54-84509{. 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 nonconsurnptive 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. ln absence of reliable, direct water use records, Ecology estimates water use according to GUlDANCE1210 that relies on crop duties from the Washington lrrigation Guide (WlG) 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 (ClR[ as reported in the WlG. 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 1275.64 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 GUID-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-l2tO, 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 seasoR. To find total use {total irri8ation 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 s-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 lrrigation Requirement (TlR)* Unit March Apr May Jun Jul Aug Total Average Qi Qa cfs acre-feet 0.98 29.44 0.98 58.08 0.36 2r.97 0.8r_ 48.42 L.08 66.35 0.86 25.62 249.42 * Up to 0,98 cfs; 58.08 acre-feet are avallable for a 30-day period during the sprlng time when all other use rs a re satisfled. Thls quantity was added to the period between March 15 and April 14. The consumptive use cafculations assume 5-percent evaporative loss. Table 3b: Consumptive Use Unit March Apr May Jun Jul Aug Totai Average Qi Qa cfs acre-feet 0.0s 2.904 0.23 1"4.77 0.53 31_,54 o.70 43.27 0.56 1.5.69 1r.0.06 0.05 L.45 Trust Water Place of Use Ecology typically manages its trust water rights by defining a primary and a secondary reach. The primary reach is the 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. Primdry 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 NW%NE%NE% of Section 19, T. 18 N., R. 20 E.W.M., and continues down Cooke Creel< 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 L8, T. L8 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. C54-0U41sb10 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 E%SW% and the W%SE% of Section 18, T. 18 N., R. 20 E.W.M., lying east of Cool<e 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 90.38,0a0(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. Consultatlon wlth the Department of Fish ond Wildlife 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 2,2OL8, State Environmentdl 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: r lt 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; r lt is a groundwater right application for more than 2,250 gpm; o lt 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 l,X of 15 Water Right File No. CS4-01141sb10 . lt 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); o lt 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 Countyrs 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 L2,20L8. 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 L41h,2018. Consideration of Protests No protests to this water right application were received. Considention of Com ments No comments regarding this water right application were received. Ather Public lnterest Concerns Pursuant to RCW 9O.42.04O(41(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 I 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-feetlyear for the purposes of instream flow and mitigation for out-of-priority uses from March L5 to September 1"5, within Cooke Creek from the historical upstream point of diversion Change Report of Examination Page 12 of 15 water RiShr File No. cs4-01141sb10 located at 600 feet south and 200 feet east from the north quarter corner of Section 18, being within the NW%NE%NE% 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. 1.8 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 Qa cfs acre-feet 0.23 74.27 0,53 3L.54 o.70 43.21. 0,56 16,69 0.05 L.45 0.05 2.90 110.06 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. 1-8 N., R. 20 E.W.M., and Continuihg down Trail Creek to its conflUenee with Cooke Creek, dowrt Coolce Creek until Cooke Creek is intercepted by Cherry Creek, down Cherry Creel< 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 O' Brien, Aspect Consulting Date gt'- r, /il/s of Ecology Dote To request ADA accommodation lncluding motetials in a formotJor the visually lmpoked, coll Ecology Woter Resources Progrdm at i6O'4O7'5872, Persons wtth tmpaired heating may colt Wdshington Relay Servlce at 7X7, Persons wlth speech disdbility may call TfY ot 877-833'6341' Change Report of Examination Page 13 of15 water Right File No, cs4-01141sb10 References United States Soil Conservation Service, L985. Washington lrrigation Updated September 1997. Washington State Department of Ecology, 2005. Determining lrrigation Efficiency and Consumptive Use October tL,ZOO5. Change Report of Examination Page 14 of 15 Water Right File No. CS4-01141sb10 hoject Location-+ i EllinsL,IrJ lthrna River Parl(erDam) , grdqs C..f,i l rfde O F{o Fl $14 do (J ci I L .so &. L(u G r.r) Fl o H hos Fa IJ.I I(J F .9 (g 'E rEX LIJ o oa- 0)E CJboc(q L) efr1r"- primary Reach Seccndary Reach l6db6 ddrr &oie Oce*ddt&ole Cret 6 !d@g€ClydEry&ek tu Cfi4cei6dors).C@*B he@dil $tisd C€.&. <n]Mt{rEs Ods is od@ ndl rne }hkiro Rjs,di4fi6 Ya*t€ Ri€f6 rtp d6e d ffiFn&Rkto'''p Palsc€'a) Authorized Poinb sf Di\rerson Authodzed PlaceofUse Town$iplRange Secticn hrcels $ 1500 3.000 5,000 +Fe€r *pect!c0 x suLttr/ c Primary and Secondary Reach for Trust Water Right Cgt-O114lsb10 Kttitas coufty, washington rc IAN2glS tGuEdq L o N L_- ltl-J 0 t i::.^ "72 I