state of washington draft report of examination for …

DRAFT CHANGE REPORT OF EXAMINATION 1 WR File No. CS4-84594-J

STATE OF WASHINGTON DRAFT

REPORT OF EXAMINATION FOR TRUST WATER RIGHT

WR Doc ID 6802477

Changed Place of Use

Changed Purpose of Use

APPLICATION DATE WATER RIGHT CHANGE APPLICATION NUMBER

September 24, 2019 CS4-84594-J

PRIORITY DATE OF CERTIFICATE PROPOSED FOR CHANGE CERTIFICATE NUMBER PROPOSED FOR CHANGE

January 26, 1887 S4-84594-J

NAME AND MAILING ADDRESS SITE ADDRESS (IF DIFFERENT)

Selah-Moxee Irrigation District (SMID) Attn: Nathan Draper, Manager PO Box 166 Moxee, WA 98936-0166

N/A

Total Rate and Quantity Authorized for Diversion DIVERSION RATE (cfs) ANNUAL QUANTITY (ac-ft/yr)

38 13,781 cfs = Cubic Feet per Second; ac-ft/yr = Acre-feet per Year

Purpose(s)

PURPOSE DIVERSION RATE (cfs) ANNUAL QUANTITY (ac-ft/yr)

PERIOD OF USE ADDITIVE NON-ADDITIVE ADDITIVE NON-ADDITIVE

Instream Flows 38 13,781 4/1 – 10/31

Mitigation 38 13,781 4/1 – 10/31

SPECIAL REMARKS: Consumptive use is limited to 11,870.25 ac-ft/yr. Trust Water Right Schedule

Reach Apr May Jun Jul Aug Sep Oct Total

Primary Reach

Primary Reach

(ac-ft/yr)

Yak RM 116 to 107.5

2172.94

2172.94

2172.94

2172.94

2172.94

1658.29

1258.02

13,781.00

Primary Reach (cfs)

Yak RM 116 to 107.5

36.58

35.40

36.58

35.40

35.40

27.92

20.50


Secondary Reach

CU Water Bank (ac-

ft/yr)

Yak RM 107.5 to Col RM

168

1432.19

1432.19

1432.19

1432.19

1432.19

1092.99

829.16

9,083.1

CU Water Bank (cfs)

Yak RM 107.5 to Col RM

168

24.11

23.33

24.11

23.33

23.33

18.40

13.51

Mitigated Permit

Total Mitigated

Permit (ac-ft/yr)

Yak RM 129.1 to

107.5

516.99

516.99

516.99

516.99

516.99

394.54

299.31 3,278.8

Total Mitigated

Permit (cfs)

Yak RM 129.1 to

107.5

8.70 8.42 8.70 8.42 8.42 6.64 4.88

CU Mitigated Permit (ac-ft/yr)

Yak RM 129.1 to

107.5

439.47 439.47 439.47 439.47 439.47 335.38 254.43 2,787.1

CU Mitigated Permit (cfs)

Yak RM 129.1 to

107.5

7.40 7.16 7.40 7.16 7.16 5.65 4.15

RF Mitigated Permit (ac-ft/yr)

Yak RM 129.1 to

107.5

77.52 77.52 77.52 77.52 77.52 59.16 44.88 491.7

RF Mitigated Permit (cfs)

Yak RM 129.1 to

107.5

1.31 1.26 1.31 1.26 1.26 1.00 0.73

Source Location

COUNTY WATERBODY TRIBUTARY TO WATER RESOURCE INVENTORY AREA

Yakima Yakima River Columbia River Lower Yakima – WRIA 37

SOURCE NAME TOWNSHIP RANGE SECTION QQ Q LATITUDE LONGITUDE

Moxee/Hubbard 13 N 19 EWM 7 SW NW QQ Q = Quarter Quarter Datum: NAD83/WGS84


Place of Use

PARCEL(S)

N/A for instream flows

LEGAL DESCRIPTION OF THE AUTHORIZED PLACE OF USE

Instream flows begin at the existing point of diversion within SW¼NW¼ of Section 7, T. 13 N., R. 19 E.W.M. on the Yakima River to its confluence with the Columbia River, then following the Columbia River to its mouth where it discharges to the Pacific Ocean.

Mitigation becomes available at Yakima River Mile 107.5 and continues to the confluence with the Columbia River. Mitigation is then available along the Columbia River to the western edge of Klickitat County (River Mile 168).

Provisions

Trust Water Right Management

This trust water right will be managed as provided by the Department of Ecology and SMID Trust Water Right Agreement (TWRA) dated DATE, which establishes the SMID Water Bank.

Consumptive Use Savings

The consumptive use savings for S4-84594-J reflect the savings over the entirety of SMID’s portfolio of water rights (S4-84590-J, S4-84591-J, S4-84592-J, S4-84593-J, S4-84594-J, S4-84595-J). Future changes to SMID’s water rights shall only credit savings beyond what has been identified in the Report of Examination for CS4-84594-J. The SMID Water Bank under S4-84594-J has senior consumptive quantities related to SMID’s portfolio of water rights, which includes senior and proratable water rights. The total quantities for the water bank and the retained irrigation shall at no time exceed the quantities that would have been available to SMID prior to establishment of the water bank, including during years of prorationing. In addition, consumptive quantities in the water bank and available to SMID for irrigation under water made available by this change cannot exceed the consumptive limitation identified in this report. While the planned efficiency improvements are likely to aid in preventing enlargement of total and consumptive use, Ecology is requiring that SMID provide a consumptive use audit to Ecology quinquennially. SMID must ensure that allowable consumptive use is not exceeded and therefore that TWSA is not impacted during periods of prorationing.

Consumptive Use Audits In coordination with metering data submittals on January 31, every 5 years beginning in 2026, SMID shall submit to Ecology a consumptive use audit using similar methodology to that conducted in the Report of Examination for CS4-84594-J.

Findings of Fact and Order

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. CS4-84594-J, subject to existing rights and the provisions specified above.


Your Right To Appeal

You have a right to appeal this Order to the Pollution Control Hearings Board (PCHB) within 30 days of the date of receipt of this Order. The appeal process is governed by chapter 43.21B RCW and chapter 371-08 WAC. “Date of receipt” is defined in RCW 43.21B.001(2). To appeal, you must do the following within 30 days of the date of receipt of the Order:

• File your appeal and a copy of this Order with the PCHB (see addresses below). Filing means actual receipt by the PCHB during regular business hours.

• Serve a copy of your appeal and this Order to Ecology in paper form - by mail or in person (see addresses below). E-mail is not accepted.

You must also comply with other applicable requirements in chapter 43.21B RCW and chapter 371-08 WAC.

Street Addresses Mailing Addresses

Department of Ecology Attn: Appeals Processing Desk 300 Desmond Drive SE Lacey, WA 98503

Department of Ecology Attn: Appeals Processing Desk PO Box 47608 Olympia, WA 98504-7608

Pollution Control Hearings Board 1111 Israel RD SW, Ste. 301 Tumwater, WA 98501

Pollution Control Hearings Board PO Box 40903 Olympia, WA 98504-0903

For additional information, visit the Environmental Hearings Office Website: .http://www.eho.wa.gov To find laws and agency rules, visit the Washington State Legislature Website: http://www1.leg.wa.gov/CodeReviser .

Authorizing Signature

Signed at Union Gap, Washington, this day of , 2021. _________________________________________ Trevor Hutton, Section Manager Water Resources Program/Central Regional Office Department of Ecology TH:DH:BC:aa (2103118)

http://www.eho.wa.gov/

http://www1.leg.wa.gov/CodeReviser


INVESTIGATOR’S REPORT

Applicant: Selah Moxee Irrigation District (SMID) Water Right Application Nos.: CS4-84594-J, CS4-84595-J (change), and S4-33241 (new) Investigator: Dan Haller, PE, CWRE (Aspect Consulting, LLC, Aspect) and Ben Carr (Department of Ecology, Ecology)

BACKGROUND

This report serves as the written findings of fact concerning Water Right Change Application Numbers CS4-84594-J, CS4-84595-J and Application for Water Right Permit No. S4-33241. Because the applications are closely related, all three applications are addressed under one investigator’s report. On September 24, 2019, SMID filed the above three water right applications with supporting figures and attachments with Ecology. On May 6, 2020, SMID requested to amend the instantaneous and annual quantities under Application No. S4-33241 following additional data collection and consultations with local stakeholders. SMID’s original request under S4-33241 was for 12.24 cubic feet per second (cfs) and 3,000 acre-feet/year (ac-ft/yr) for irrigation of 901 acres. See Table 2C for the amended quantities. The change applications request to change the points of diversion for SMID’s Moxee-Hubbard water rights and to transfer saved water into the Washington State’s Trust Water Right Program (Trust). Specifically, SMID requests to permanently transfer S4-84594-J into Trust for instream flow and mitigation purposes and to use a portion as mitigation for new Water Right Application No. S4-33241 for continued irrigation within the SMID service area. Both S4-33241 and CS4-84595-J also propose to resolve a long-standing diversion replacement issue and provide additional diversion flexibility by authorizing three points of diversion:

SMID’s existing Pomona diversion, upstream of the historic diversion point for the Moxee/Hubbard Canal, which was damaged during the 1996 Flood and washed-out during a December 1999 event on the Yakima River.

• Fowler Ditch’s Existing Diversion, which is located downriver from the SMID existing Moxee/Hubbard Canal, and has some potential for coordinated use in the future.

• The Roza Wasteway Diversion where SMID has had authority to divert water during some time periods after the 1999 wash-out.

New Application S4-33241 is needed, because surplus water that is available to create the SMID Water Bank does not match perfectly with SMID’s water rights. Both former Moxee/Hubbard Canal rights for transfer were selected for transfer because they are large enough to accomplish the water bank goals and they simultaneously are needed to address the point of diversion compliance issue. SMID is pursuing upgrades to its canal system to a piped system to help conserve water, upgrade infrastructure and for best management of their water delivery system. As part of this effort, they are pursuing options to leverage their water rights portfolio including recent consumptive use savings from conservation upgrades and urbanization within the service area. SMID plans to rely on a portion of the consumptive use savings to seed a water bank and to help pay for the planned infrastructure upgrades through leases or sales of mitigation water. At the time of this Investigator’s Report, SMID has identified its first customer of the water bank. Benton County plans to purchase 300 acre-feet of water from the trust quantities to help launch its permit-exempt water bank. SMID’s water bank will be governed by a Trust Water Agreement with Ecology executed in parallel with this authorization.


Pre-Application meetings were held with Ecology on April 22, 2019, and August 27, 2019, to discuss the project objectives, permitting approach, consumptive use savings and approach, and mitigation options. At the first meeting, the process for developing these applications was discussed. Aspect Consulting prepared an initial draft of this Investigator’s Report under a frontloaded approach, which was then reviewed and edited by Ecology.

SMID Existing Water Rights and Proposed Application Attributes

Table 1 summarizes SMID’s existing water rights as authorized in the 1998 Conditional Final Order (CFO) (Ecology v. Acquavella, SMID CFO, 1998).

Table 1: Summary of Existing SMID Water Rights

Water Right No.

Priority Date

Qi* (cfs) Qa (ac-ft/yr)

Purpose of use

Irrigated Acres**

Season Point of Diversion

SMID Pomona rights

S4-84590-J 11/9/1884 54.0 17,970.5 IR, FP, ST, OA 5,393.63 4/1-10/31 Pomona



S4-84593-J 5/10/1905 14.6 4,281.3 IR, DM 5,393.63 4/1-10/31 Pomona

SMID Moxee-Hubbard rights (these are the subject rights being changed)

S4-84594-J 1/26/1887 38.0 13,781.0 IR, FP, ST, OA 2,001.94 4/1-10/31 Old Moxee-Hubb

S4-84595-J 5/10/1905 3.1 959.4 DM, IR 345.00 4/1-10/31 Old Moxee-Hubb

Notes: FP=Frost Protection; IR=Irrigation; ST=stock water; OA=other agriculture purposes; DM=incidental domestic supply; cfs = cubic feet per second; ac-ft/yr= acre-feet per year; Old Moxee-Hubb is the Moxee-Hubbard diversion that was damaged during the 1996 Flood and washed-out during a December 1999 event. *Qi is peak authorized instantaneous quantity under each right. The Qi varies during the season as described in the Final Schedule of Rights for each right, which is included in Ecology’s file. ** Irrigated acres for the four Pomona rights total 5,393.3 acres combined, with irrigated acres primary under S4-84590-J, and non-additive under S4-84591-J, S4-84592-J, and S4-84593-J.


SMID’s proposed changes (as amended) to S4-84594-J and S4-84595-J are listed in Tables 2A and 2B.

Table 2A: Attributes of Existing Right No. S4-84594-J and Proposed Change under No. CS4-84594-J

Attributes Existing Proposed

Name SMID Ecology

Priority Date Priority Date – January 26, 1887

Change Application Date – September 24, 2019

Instantaneous Quantity 38 cfs April 1 to August 31; 29 cfs in September; and

22 cfs in October

No change for trust quantities

Annual Quantity 13,781.0 ac-ft/yr No change for trust quantities

Purpose of Use Irrigation of 2001.94 acres, frost protection, other agricultural

purposes and stock water

Instream flow and mitigation

Period of Use April 1 through October 31 No change

Place of Use SMID service area as described and depicted in Acquavella adjudication

exhibits SMID 23 (A), (B), and (C)

Yakima and Columbia Rivers commencing at existing point of

diversion within SW¼NW¼ of Section 7, T. 13 N., R. 19 E.W.M., extending

downstream to the Columbia River, thence to the Pacific Ocean.

Point of Diversion Old Moxee-Hubbard diversion SW¼NW¼ of Section 7, T. 13 N., R.

19 E.W.M.

Not applicable to trust

Table 2B: Attributes of Existing Right No. S4-84595-J and Proposed Change under No. CS4-84595-J

Attributes Existing Proposed

Name Reclamation as trustee for SMID and SMID No change

Priority Date Priority Date – May 10, 1905

Change Application Date – September 24, 2019

Instantaneous Quantity

3.1 cfs maximum*; (1.4 in April, 2.3 in May, 3.1 in June, 3.0 in

July/August, 2.1 in September, 1.0 in October)

No change

Annual Quantity 959.4 ac-ft/yr No change

Purpose of Use Irrigation of 345 acres and incidental domestic supply

No change

Period of Use April 1 through October 31 No change

Place of Use Portion of SMID service area as described in Acquavella Exhibit SMID 31

No change

Point of Diversion

Old Moxee-Hubbard diversion SW¼NW¼ of Section 7, T. 13 N., R. 19 E.W.M.

1) “Pomona” within SE¼ of Section 8, T. 14 N., R. 19 E.W.M.; 2) “Fowler” within SE¼ of Section 7, T. 13 N., R. 19 E.W.M.; and 3) “Roza Wasteway” within N½ of

Section 17, T. 13 N., R. 19 E.W.M.

Note: *During April, May, September and October, the applicant requests the Qi under the subject right be limited at the Pomona diversion only to the Qi authorized under existing Pomona water rights S4-84590-J, S4-84591-J, S4-84592-J, and S4-84593-J. Additionally, applicant requests that Qi during June 1-15th be limited as above only when flows as measured in the Yakima River below Roza Dam (Reclamation RBDW Station) fall below 1300 cfs. United States Bureau of Reclamation (Reclamation) manages the federal dams in the Yakima River Basin.


Table 2C describes the requested attributes of New Mitigated Application No. S4-33241.

Table 2C. Summary of Amended Application No. S4-33241

Attributes Existing

Name SMID

Priority Date September 24, 2019 January 26, 1887 (original priority date for purpose of regulation)

Instantaneous Quantity 11.41 cfs*

Annual Quantity 3,278.8 ac-ft/yr

Purpose of Use Irrigation of 839.5 acres, frost protection, and other agricultural purposes

Period of Use April 1 through October 31

Place of Use SMID service area as described and depicted in Acquavella adjudication exhibits SMID 23 (A), (B), and (C)

Point of Diversion 1) “Pomona” within SE¼ of Section 8, T. 14 N., R. 19 E.W.M.; 2) “Fowler” within SE¼ of Section 7, T. 13 N., R. 19 E.W.M.;

3) “Roza Wasteway” within N½ of Section 17, T. 13 N., R. 19 E.W.M.

Note: *During April, May, September and October, the applicant requests the Qi under the subject right be limited at the Pomona diversion only to the Qi authorized under existing Pomona water rights S4-84590-J, S4-84591-J, S4-84592-J, and S4-84593-J. Additionally, applicant requests that Qi during June 1-15th be limited as above only when flows as measured in the Yakima River below Roza Dam (Reclamation RBDW Station) fall below 1300 cfs.

Priority Processing

Application No. S4-33241 qualifies for expedited processing under WAC 173-152-050(2)(g) which provided for expedited processing for proposals that are water budget neutral as defined in WAC 173-152-020(18). Application S4-33241 is proposed to be offset on a one-to-one consumptive basis by trust water conveyances to Ecology in CS4-84594-J.

INVESTIGATION

In consideration of the three SMID applications, Aspect and Ecology reviewed available information pertaining to site conditions, existing points of diversion, irrigation practices and crop types, historical water use changes, area water rights, and potential effects of proposed changes on any existing water rights, Yakima Basin’s Total Water Supply Available (TWSA), and established stream flow targets. This included information submitted by the applicant, air photos, farmer/grower interviews and pertinent Ecology records including water rights records and water resource policy and guidance documents. This section summarizes each of these investigations.

History of Water Use

Site Description

An initial site visit was completed on September 23, 2015, by Dan Haller and Meghan O’Brien, of Aspect Consulting along with Nathan Draper, District manager. Numerous subsequent site visits were conducted during the summer of 2019, by Ingrid Ekstrom and Dan Haller to visit multiple irrigated hops fields within the Moxee service area and sections of Selah-Moxee Canal and Moxee Drain. Interviews regarding irrigation practices on hops fields and how they changed were conducted with the SMID Board and with four of the larger hops growers in the Moxee area during summer of 2019. The interviews along with site visits were conducted to assess changes in water use including consumptive


use associated with changes in irrigation practices. On October 5, 2020, Michael Roy of Roy Farms, LLC submitted a declaration that outlined the changes in their hop irrigation practices from when the farm was established in the early 1900s to the present. Roy states that “the use of drip lines by Roy Farms first started in the 1980s on an experimental basis and by the end of the 1990s all the originally rill irrigated hops fields had been converted over to drip irrigation (Roy, 2020, pp. 1-2).

Service Area Description

SMID provides irrigation water to the east Selah and Moxee service areas. The area served is located east of the Yakima River and west of the Roza service area and canal. The two service areas are separated by the Yakima Ridge, as shown on Figure 1.

Figure 1. Service Area and Water System Infrastructure


Water System Description

SMID operates three gravity-fed canals to service its lands, the Selah-Moxee, the Moxee, and the Hubbard canals as shown in Figure 1. Most of the length of SMID’s canal system is unlined. However, over the last 15 years, approximately 3.5 miles of the three canals have been lined or piped and the water banking goals of these applications are intended to fund additional piping/lining projects. The Selah-Moxee Canal’s diversion is on the Yakima River at Pomona and wraps its way east to East Selah, under the Yakima Ridge via a tunnel, and then through the Moxee Valley. The Moxee and Hubbard Canals have historical diversion points on the Yakima River just south of Selah Gap (about 9 miles downstream of Pomona). According to Jerry Kloster, past SMID board president, there were two events that damaged the Moxee/Hubbard diversion. The first occurred in 1996 where a portion of the canal embankment was washed away and limited their diversion rate during the next few irrigation seasons while they were trying to implement a permanent fix to the damage. However, in late 1999, the embankment was completely washed-out and the District sought other alternatives to access water. SMID asked for permission from United States Bureau of Reclamation (USBR) to install a pump station on the Roza Wasteway and applied for funding from Bonneville Power Administration (BPA). After receiving permission from USBR and funding from BPA, SMID constructed the Roza Wasteway pump station near USBR’s Yakima Field Office. The Roza Wasteway is proposed to be added as a point of diversion to S4-84595-J and S4-33241. However, this water source is not always available to SMID. Roza Wasteway diversions are limited when:

1. Water was not physically available in the Reclamation canal. 2. When power was subordinated. 3. When instream flows dropped to levels specified by the System Operations Advisory Committee

(SOAC) at the gaging station below Roza Dam.

For the last 25 years, SMID has diverted more water from its Pomona diversion and installed mechanisms for filling the Moxee and Hubbard Canals with water from the Selah-Moxee Canal. In some cases, these additional diversions were approved through temporary transfers (2005 and 2006) through the Acquavella Court, and in others, they occurred as a defacto change in diversion. This compliance and long-term supply reliability issues are the primary issues this package of permits intends to address.

SMID Crops and On-Farm Water Duty

SMID’s adjudicated water rights authorize irrigation of 7,740.57 acres. The primary crop grown in SMID is hops, comprising more than half of its acreage. There is also a significant amount of orchard, hay, and some vineyards. Residential use (lawn irrigation) is the second highest use in SMID, as SMID’s service area serves significant portions of both unincorporated Terrace Heights and the City of Moxee. While there has been some urbanization and on-farm efficiency improvements in the last 25 years, the crop mix is largely the same as when reviewed by the Court. The excerpt from the Report of Referee below discussed Moxee Irrigation District, which later was integrated with SMID (Yakima County Superior Court, 1996).

“Hops and pasture are the predominate crops within MID, with lessor amounts of orchards, residential (lawns and gardens) and a variety of specialty crops. Rill irrigation is the primary application method. The irrigation season is from April 1 to October 31.”

Table 3 shows an estimate of crops within SMID based on data originally collected by CH2M Hill as part of the SMID Irrigation Conservation Plan. These data were updated with GIS analyses by Aspect Consulting to reflect current irrigation practices and conservation savings (see Trust Water Calculations


section for methodology and updated calculations). These data support the historic references in the record.

Table 3. 2020 Acres by Crop Type

Crop Type Acres

Hops 4,217.9

Orchard 137.03

Alfalfa & Hay 1,117.51

Vineyard 14.39

Residential & Pasture 988.94

Other (fallowed, sports fields, right-of-way, miscellaneous) 1,264.8

Total 7,740.57

Crop irrigation requirements (CIR) can be estimated using the Washington Irrigation Guide (WIG, 1985) for the Moxee Station. Although the exact crop mix within some categories (e.g. orchard) are not known, apples with cover is the most common orchard crop, with some orchard fruit having slightly higher (e.g. cherries) and others slightly lower (e.g. apricots, peach) CIR values. Table 4 shows current crops within SMID compared to estimated CIR.

Table 4. CIR by Crop Type from the WIG

Crop Type CIR (inches) CIR (feet/acre)

Hops 27.88 2.32

Orchard 40.13 3.34

Alfalfa/Hay 33.25 2.77

Vineyard 24.61 2.05

Residential/Pasture 35.15 2.93

SMID Metering Data

SMID has maintained metering records since the 1998 CFO. Table 5 presents a summary of the metering records along with temporary donations to the Trust Program. The records show total diversions into SMID’s three main canals (Selah-Moxee Canal, Moxee Canal and Hubbard Canal). In addition, diversions are now metered from Roza drains, which represents the return flows entering the District’s delivery system. The diverted return flows through the Roza drains were not metered until 2003, and in some years following 2003 were only partially metered. As a result, the total metered diversion reported in Table 5 prior to 2003 and during the period from 2011 to 2016 represents less than the total actual diversion by SMID but are reasonable estimates for the purpose of evaluating trends. Key events that are important relative to future discussions in this report (e.g. floods, droughts, trust transfers) are also noted in the table. The meter records indicate less water diverted than authorized (44,089.4 ac-ft/yr) in many years since the CFO. SMID’s metered water use from 1998 through 2019, ranges between a low of 27,818 ac-ft in 2001 and a high of 34,831 ac-ft in 2008. SMID has placed excess water made available through conservation into the state’s Trust Program regularly since 2003. The water donated into trust has been put to beneficial use for instream flows. In some years, the total diverted and trusted quantities slightly exceed the authorized amounts. The highest overage is less than 1% of the authorized amount. We attribute this to meter accuracy (10% according to WAC 173-173-130) and the challenges of making trust donations before the beginning of the irrigation season without full knowledge of what the entire


water year hydrologic conditions will be. An analysis of underuse by SMID relative to qualifying relinquishment exemptions follows.

Table 5. Summary of Annual Canal Diversions and Trust Donation Quantities (all values in ac-ft/yr)

1. Available water quantities have been limited since the damage to the Moxee/Hubbard diversion in the 1996 Flood and wash out in December 1999. Between 2000 and 2019, a temporary change added the Yakima Wasteway diversion, but availability of water was also restricted due to limited flows and ability to pump from the wasteway. The Moxee and Hubbard columns represent the quantities pumped from the Roza Wasteway into the respective canals. They do not include any quantities that were originally diverted from Pomona into the Selah-Moxee canal. 2. Roza drain data not available prior to 2003. Total metered diversions are less than actual use.

Year Pomona Moxee1 Hubbard1 Roza

Drains2

Subtotal Trust3 Total with Trust

Authorized Qa

Notes

1998 20,996 3,204 6,672 N/A 30,872 0 30,872.0 44,089.4 CFO (09/10/98)

1999 19,638 3,094 5,904 N/A 28,636 0 28,636.0 44,089.4 4

2000 20,509 3,461 6,950 N/A 30,920 0 30,920.0 44,089.4

2001 19,509 3,137 5,172 N/A 27,818 0 27,818.0 44,089.4 Drought

2002 20,510 3,258 5,526 N/A 29,294 0 29,294.0

44,089.4

2003 26,713 2,239 2,895 2,342 34,189 465 34,189.0 44,089.4 Drought5

2004 27,086 787 - 2,324 30,197 465 30,662.0 44,089.4 Drought5

2005 25,969 1,051 624 1,998 29,642 10,465 40,107.0 44,089.4 Drought5

2006 30,233 1,250 167 2,286 33,936 10,465 44,401.0 44,089.4 5

2007 30,459 1,131 - 2,327 33,917 10,465 44,382.0 44,089.4 5

2008 30,403 1,090 987 2,351 34,831 5,465 40,296.0 44,089.4 5

2009 23,539 1,295 2,112 2,404 29,350 6,978 36,328.0 44,089.4 5

2010 29,204 247 1,120 1,954 32,525 7,965 40,490.0 44,089.4 5

2011 28,206 484 745 2,294 31,729 7,965 39,694.0 44,089.4 5

2012 28,866 n/a n/a n/a 28,866 6,465 35,331.0 44,089.4 5

2013 28,026 - 1,380 3,596 33,002 7,000 40,002.0 44,089.4 6

2014 28,797 - 1,382 3,644 33,823 2,000 35,823.0 44,089.4 6

2015 27,245 558 2,177 2,270 32,250 - 32,250.0 44,089.4 Drought6

2016 27,221 367 1,503 2,796 31,887 12,332 44,218.8 44,089.4 6

2017 26,580 - 1,231 4,377 32,188 11,918 44,106.5 44,089.4

2018 28,240 - 1,208 4,485 33,933 10,194 44,127.3 44,089.4

2019 26,108 - 1,833 4,315 32,2557 - 32,255.2 44,089.4 Drought

2020 28,760 109 1,562 4,534 34,966 - 34,965.9 44,089.4


3. Change Authorization CS4-01653CTCL authorized putting 1.1 cfs and 465 ac-ft/yr of water savings into Trust as a condition of the Irrigation Efficiencies Grant Program. This water was held in Trust for 10 years from April 1, 2003, through October 31, 2012. 4. In December 1999, SMID’s Moxee/Hubbard diversion became inoperable as the canal embankment was completely washed out. 5. "Roza Drains (ac-ft/yr)" column does not include Siphon 1 (estimate of 1,200 ac-ft/yr) and multiple other Roza Drain Locations (estimate of 518 ac-ft/yr from drain nos. 2, 10, 16, 18a, and 19) in the noted years when this data was unavailable. 6. "Roza Drains (ac-ft/yr)" column does not include unavailable data from Siphon 1 Roza Drain (estimate of 1,200 ac-ft/yr). 7. The quantities diverted in 2019, do not include the seasonal transfer of 10 cfs and 3,352 ac-ft/yr to Fowler Ditch service area (CS4-01651@10).

SMID proposes to make consumptive use savings available for establishing a water bank and adding points of diversion. Before evaluating whether such transfers are possible, we must consider whether the two underlying rights proposed for change are valid. As of the 1998 CFO, the Acquavella Court determined these rights were valid (Ecology v. Acquavella, SMID CFO, 1998). The following sections analyze abandonment and relinquishment from 1998 to present.

Abandonment

Abandonment can result from an intent to abandon a right, or a long-standing period of nonuse that gives rise to a presumption of abandonment. None of SMID’s actions have indicated any intent to abandon its irrigation rights. The record is replete with examples of SMID’s intent to preserve the rights, including trust water donations, temporary change authorizations, investment in conservation measures, planning for future projects relying on its water rights, and these applications. The record does suggest a long-standing period of nonuse since the 1998 CFO. However, given the lack of intent and continued use of the authorized infrastructure where available, this nonuse is more properly considered as relinquishment risk rather than abandonment.

Relinquishment

The relinquishment statute was passed in 1967 and RCW 90.14.160 states:

“Any person entitled to divert or withdraw waters of the state through any appropriation authorized by enactments of the legislature prior to enactment of chapter 117, Laws of 1917, or by custom, or by general adjudication, who abandons the same, or who voluntarily fails, without sufficient cause, to beneficially use all or any part of said right to divert or withdraw for any period of five successive years after July 1, 1967, shall relinquish such right or portion thereof, and said right or portion thereof shall revert to the state, and the waters affected by said right shall become available for appropriation in accordance with RCW 90.03.250.”

SMID consistently diverted less water than they were authorized. There are a number of reasons for these decreased diversions including:

The damage (1996 Flood) and destruction (December 1999) of Moxee/Hubbard diversion, one of two primary SMID diversions.

Loss of proratable water right use authority under S4-84595-J during drought years (see Table 5).

Urbanization of land resulting in increased impervious surfaces.

Irrigation efficiency improvements on-farm by SMID farmers.

Conservation improvements in SMID conveyance.


SMID asserts two relinquishment exceptions to excuse this non-use and confirm the full extent and validity of S4-84594-J and S4-84595-J consistent with the 1998 CFO. Because metered water use data over multiple five-year periods is less than that authorized, relinquishment exceptions are appropriate to consider. These exceptions include the following:

RCW 90.14.140(1)(a): Drought, or other unavailability of water. SMID asserts water was not completely available to them:

o Because the Moxee/Hubbard diversion was damaged in the 1996 Flood and destroyed in December 1999. These events prevented SMID from diverting their full quantities.

o During times of prorationing (2003 and 2004) or drought (2001, 2005, 2015, 2019) for S4-84595-J.

RCW 90.14.140(2)(h): A trust water right established under RCW 90.38 or 90.42. SMID asserts water was protected:

o From 2003 to present through trust donations of variable quantities.

Below is a timeline of events for S4-84594-J and S4-84595-J and a discussion of the above relinquishment exceptions.

Recent Timeline for S4-84594-J:

February 9, 1996: Yakima River Flood damages the Moxee-Hubbard diversion, limiting diverted quantities. SMID increases their diversion quantities at Pomona.

September 10, 1998: The Acquavella Court issues a Conditional Final Order (CFO).

December 1999: The Moxee/Hubbard canal embankment completely washes out and the District seeks other alternatives to access water.

February 8, 2000: SMID files a permanent change to add the Roza Wasteway as a point of diversion with the Yakima County Water Conservancy Board (YCWCB) under Board application number 7-2000. The application states that:

“The Moxee Canal point of diversion was washed out in December 1999. Due to difficulties in obtaining approval for desired rehabilitation of that point of diversion, a new point of diversion is sought for the point described in section 3 hereof which is at the USBR wasteway.”

The YCWCB approves the change application on May 10, 2000, but Ecology reverses the Board’s decision on July 31, 2000, due to procedural errors. SMID appeals the decision, but ultimately withdraws the appeal and the Pollution Control Hearings Board (PCHB) dismisses the case (case number and citation).

March 30, 2000: The Acquavella Court issues an Order Pendente Lite (OPL) to allow temporary use of the Roza Wasteway after BPA funded construction improvements. (Acquavella Court Document No. 14,407).

May 20, 2005: SMID donates 25 cfs and 10,000 ac-ft to Trust under change application CS4-01651CTCL@1.

June 9, 2005: An OPL allows SMID to divert up to 11.18 cfs and 2,951.2 ac-ft with S4-84594-J and S4-84595-J from either the Roza Wasteway or the Pomona diversion for the 2005 irrigation season. (Acquavella Court Document No. 18,879)

July 13, 2006: The Pomona diversion is authorized again like in 2005. Up to 24 cfs and 10,000 ac-ft are placed into Trust for the 2006 irrigation season. (Acquavella Court Document No. 19,615 and 19,616).

From 2007 through 2018, SMID donates water to Trust. See Table 5 for total yearly donations. o 2007: Up to 25.2 cfs and 10,000 ac-ft to Trust. (Acquavella Court Document No. 20,224)


o 2008: Up to 14.3 cfs and 5,000 ac-ft to Trust (Acquavella Court Document No. 20,732) o 2009: Up to 21.1 cfs and 6,513 ac-ft to Trust (Acquavella Court Document No. 21,117) o 2010: Up to 21.1 cfs and 7,500 ac-ft to Trust (Acquavella Court Document No. 21,551) o 2011: Up to 24 cfs and 7,500 ac-ft to Trust. (Acquavella Court Document No. 21,997) o 2012: Up to 16.88 cfs and 6,000 ac-ft to Trust. (Acquavella Court Document No. 22,389) o 2013: Up to 19.78 cfs and 7,000 ac-ft to Trust. (Acquavella Court Document No. 22,752) o 2014: 5.363 cfs and 2,000 ac-ft to Trust (Acquavella Court Document No. 23,154) o 2015: No water donated to Trust. o 2016: Up to 47.92 cfs and 12,322.09 ac-ft to Trust. (Acquavella Court Document No.

23994) This donation covers three water rights in SMID’s portfolio. o 2017: Up to 38 cfs and 11,918 ac-ft to Trust. (Acquavella Court Document No. 24,333) o 2018: Up to 32 cfs and 10,193.51 ac-ft to Trust (Acquavella Court Document No. 24,936)

April 25, 2019: SMID applies to seasonally change S4-84594-J to add the Fowler Ditch Association’s point of diversion and service area to its place of use. Up to 10 cfs and 3,352 ac-ft transfer to Fowler Ditch Association for the 2019 irrigation season.

Recent Timeline for S4-84595-J:

1996-2000: See timeline above for shared events with S4-84594-J.

March 14, 2001: Governor Gary Locke declares a statewide drought. Prorationing in the Yakima River Basin reduces water use for May 10, 1905 water users to 37% of their entitlement for the irrigation season.

2003 Prorationing: SMID receives 92% of their entitlement.


July 15, 2004: A seasonal change of 0.6 cfs and 15.2 ac-ft was approved (via OPL) for several summer camps. (Acquavella Court Document No. 17,977)

July 29, 2004: A seasonal change of 83.84 ac-ft of consumptive water was approved for use by a Post-1905, water users for domestic water supply. ((Acquavella Court Document No. 18030)

March 10, 2005: Governor Christine Gregoire declares a statewide drought due to a warm and dry winter. Statewide snow water equivalent is 26% of average in early March. Prorated users receive 42% of their entitlement for the irrigation season.

July 13, 2006: An OPL allows SMID to divert up to 1.18 cfs from S4-84595-J from either the Roza Wasteway or the Pomona diversion for the 2006 irrigation season. (Acquavella Court Document No. 19,615).

May 15, 2015: Governor Jay Inslee declares a statewide drought due to a warm winter and historically low snowpack. Prorated users receive 47% of their entitlement.


May 20, 2019: Governor Jay Inslee declares drought for the Yakima River Basin in addition to 24 other watersheds. SMID receives 72% of their entitlement.

SMID has not diverted their full authorized quantities since the 1998 CFO. However, they were prevented from diverting all of their authorized water due to the damage in the 1996 Flood and destruction of the Moxee/Hubbard diversion in December 1999. This kind of infrastructure failure is analogous to what occurred to Cascade Irrigation District. In 2001, the Acquavella Court issued Memorandum Opinion Re: Unavailability of Water regarding Cascade Irrigation District (CID) (Memorandum Opinion Re: Unavailability of Water, Cascade Irrigation District, Claim 00891, 2001). The fact pattern involved how a canal break should be considered in the context of a relinquishment analysis. The Acquavella court found that:


1. Drought is a sufficient cause for the nonuse of water. Five-year periods when drought or prorationing occurred would not be used for extent and validity.

2. CID’s water supply was cut off by a landslide, which destroyed a flume. The five-year period during this event would not be analyzed for relinquishment.

3. A five-year period when a canal break occurred would be not be used because water was unavailable.

4. Unavailability of water cannot excuse negligent maintenance. The above reasoning was consistent with the R.D. Merrill Supreme Court case that stated that the unavailability of water exemption is applicable when “hydrologic or engineering difficulties are encountered.” (R.D. Merrill Co. v. Pollution Control Bd., 1999) Therefore, Year 2000 is not considered since this was the irrigation season most impacted by the wash-out. The last year in the five-year relinquishment period was 2005. SMID diverted and donated to Trust a total of 40,107 ac-ft. However, their metered quantities did not include Roza drain quantities that SMID estimated was 1,718 ac-ft (see note 5 below Table 5). An estimated total of 41,825 ac-ft were beneficially used in 2005, within the +/-10% accuracy requirement for metering data (WAC 173-173-130). Other years were similar to 2005 including 2008, 2010, and 2015. More than full use occurred in 2006, 2007, 2016, 2017, and 2018. The following conclusions are made:

1. The 1999 to 2005, time period is exempt from relinquishment for S4-84594-J and S4-84595-J as water was not fully available to SMID. Combining metered, unmetered, and trust donation quantities, full use of SMID’s portfolio of water rights occurred in every five-year period since 2005.

2. For S4-84595-J, there is no 5-year period when water was either not fully used, not in trust, or not contained in a period when prorationing occurred.

Given the totality of circumstances from September 10, 1998, to present, Ecology agrees that the extent of S4-84594-J and S4-84595-J are as authorized in the CFO. The following sections turn next to quantification of the magnitude and nature of the trust water for S4-84594-J.

Trust Water Calculations for S4-84594-J

A transfer to instream flows in the Yakima River Basin is governed by chapter 90.38 RCW. RCW 90.38.040(1) states that all trust water rights acquired by Ecology shall be placed into the Yakima River Basin Trust Water Rights Program (TWRP) to be managed by Ecology. RCW 90.42.100(1) states that Ecology is authorized to use the TWRP in the Yakima River Basin for water banking purposes. RCW 90.42.100(2)(a) states that water banking may be used to mitigate for any beneficial use under chapter 90.03, 90.44 or 90.54 RCW, consistent with any terms and conditions established by the transferor, except that return flows from water rights authorized in whole or in part for any purpose shall remain available as part of the Yakima Basin’s TWSA and to satisfy existing rights for other downstream uses and users. RCW 90.42.100(2)(b) states that water banking may be used to document water right transfers to and from the TWRP. Water Right S4-84594-J authorizes 13,781 ac-ft/yr for irrigation of 2001.94 acres and was selected to set up the water bank because it was part of the original Hubbard diversion that required a compliance-fix, and it had a quantity similar to trust water conveyances in recent years. SMID manages their water rights as a portfolio and therefore the consumptive use savings discussed below is considering all the


water rights in their portfolio. In order to quantify the primary (consumptive) and secondary (nonconsumptive) reach quantities to establish the SMID Water Bank, we evaluated the magnitude of savings across the following categories:

1. Impervious surfaces on-farm (e.g. houses, driveways, garages). 2. Impervious surfaces from new roads. 3. Fallowed land (irrigable but not irrigated for many years). 4. Cover crop removal from hop fields. 5. Reduced canal evaporation and vegetation.

Each of these categories were important for SMID to quantify separately because:

1. They affect SMID financial commitments differently. 2. SMID may employ different water banking strategies for each (e.g. sales, long-term leases,

short-term leases). 3. They require different actions under irrigation district law.

The following sections summarize each of these quantities and how they were derived. The consumptive use savings identified below will not be eligible for future credit if the other water rights in SMID’s portfolio are put into trust. The Enlargement section below discusses in detail the provisions proposed to prevent enlargement of SMID’s portfolio of water rights. The trust water calculation methodology was discussed with Ecology in the pre-application meetings, and with the WTWG and external stakeholders through the consultation meetings.

Small Parcel Impervious Surfaces

A substantial portion of SMID’s service area in Terrace Heights and Moxee serves residential lots of 1 acre or less. These smaller lots are all charged a uniform assessment irrespective of use on that parcel, which is a common way for irrigation districts to manage small parcels. The small parcels include former irrigated crop land that was partially subdivided and replaced with houses, roads, garages, and other impervious areas. Aspect and SMID conducted a Google Earth work session reviewing residential lot irrigation behavior across nearly 2000 small parcels as of 2018. From this work session, Aspect conducted a GIS analysis for several parcels across SMID that appeared to be representative of “average” or “typical” behavior. The steps taken for this GIS analysis are below: SMID Aerial Photo Delineation Methodology

1. Update datasets:

a. Recent aerial imagery, if possible utilize photos taken in late summer to emphasize

irrigation compared with season variation.

b. SMID Irrigation District Served Parcels.

c. Yakima County Tax Parcels.

2. Using the aerial photo, review each SMID parcel larger than 1 acre for new non-irrigated areas.

Non-irrigated areas should be classified into one of the following categories:

a. Pavement or Building.

i. Any permanent structures, which would prevent irrigation.

b. Riparian Area.

c. Potentially Irrigable.

i. Includes areas such as fallowed fields, potentially farmed dirt areas.

d. Potentially Irrigable – Dirt Road.


i. Includes dirt roads typically within fields, which may change depending on the

crop planted.

3. Indicator Parcel Analysis: For SMID parcels 1 acre or less in size, a representative, randomized

sample of those parcels (“indicator parcels”) should be reviewed with the aerial photo (same as

step 2 above). For each indicator parcel, calculate the percent area that is non-irrigated. The

average percent non-irrigated area from all indicator parcels will be applied across all parcels 1

acre or less to estimate total non-irrigated acreage on small parcels.

a. Indicator parcels should be spread spatially and within the parcel area distribution

b. In 2015, SMID had approximately 2,000 small parcels. 10 indicator parcels were used to

evaluate percent irrigated/non-irrigated. Indicator parcels were reviewed by SMID to be

appropriately representative of typical irrigation practices.

By comparing the total area of converted crop land to impervious area or structures across these indicator parcels, Aspect determined that 45.4% on average of each parcel was not irrigated and likely would never be irrigated again (54.6% irrigated on average). An example indicator parcel showing both irrigated and impervious surfaces is shown in Figure 2.

Figure 2. Example Indicator Parcel

Applying the representative 45.4% impermeable surface to the total area of small domestic parcels (less than 1 acre in size and subdivided from irrigated crop land since the CFO) yielded 284.21 acres of


fallowed land. That acreage was then assigned a water duty to confirm an acre-foot savings to attribute to the water bank. Pasture/turf was selected as a representative water duty to assign to this fallowed land because most of the prior irrigated land appeared to be this crop type by visual inspection of aerial photos, pasture is one of the most common crop types in SMID, and reference ET for grass is a common prediction method where an estimate is needed across many potential crop types. Based on Table 4, the CIR for pasture is 35.15 inches. Ecology’s GUID 1210 provides ranges of irrigation efficiencies for common application methods. Irrigation of pasture is typically by sprinkler, so a 75% efficiency was selected. We believe this is conservative towards TWSA because the Court record also speaks of flood irrigation, which would produce even higher values for the total irrigation requirement. The percent consumptive use (%CU) from GUID 1210 for sprinklers is 85%.

Total Irrigation Requirement (TIR) = CIR / Application Efficiency (Ea) TIR = 35.15 / 0.75 = 46.87 inches = 3.91 feet. Consumptive use / acre = 3.91 feet x 85% = 3.32 feet. Small Parcel Total Use = 3.91 feet x 284.21 acres = 1,111.26 Small Parcel Consumptive Use = 3.32 feet x 284.21 acres = 943.58 ac-ft/yr

Large Parcel Impervious Surfaces

Aspect performed GIS delineations (step 2 above) on over 800 irrigated parcels greater than 1 acre in size to identify lands where impervious surfaces were created. Examples of buildings, parking lots, and other impervious surfaces were identified as permanently fallowed land. Examples in Figure 3 and 4 below include Ace Hardware and Moxee Self-Storage.


Figure 3. Example Large Parcel Impervious Surface (Ace Hardware)


Figure 4. Example Large Parcel Impervious Surface (Moxee Self Storage)

A total of 843.3 acres of irrigated crop land has been removed since the CFO and replaced with building infrastructure. We applied the same methodology as in the Small Parcels to quantify the consumptive use.

Large Parcel Total Use = 3.91 feet x 843.3 acres = 3,297.30 ac-ft/yr Large Parcel Consumptive Use = 3.32 feet x 843.3 acres = 2,799.76 ac-ft/yr

Roads

Aspect performed GIS delineations on roads installed in the SMID service area since the CFO that reduced SMID service obligations. Figure 5 shows an example before-and-after aerial view of how new County roads displaced formerly irrigated farmland. A total of 34.9 acres has been removed and we applied the same methodology as in the Small Parcels to quantify the consumptive use.

Roads Total Use = 3.91 feet x 34.9 acres = 136.46 ac-ft/yr Roads Consumptive Use = 3.32 feet x 34.9 acres = 115.87 ac-ft/yr


Figure 5. Example Road Impervious Surfaces (Near Duffield Road)

Larger Parcels, Irrigable

During the course of Aspect’s evaluation of impervious surfaces, we noted that some irrigable land had been voluntarily fallowed by SMID members for more than 10 years, adding to the surpluses. These members were still paying assessments but had chosen not to irrigate for their own reasons. These savings are also quantified and SMID is going to work with those members to determine whether irrigation will occur in the future on those parcels or if they can be retired and reallocated to new uses. Aspect performed a GIS analysis of the fallowed land, which totaled 645.9 acres. An example from the GIS analysis is provided in Figure 6. Aspect applied the same methodology as in the Small Parcels to quantify the consumptive use.

Large Irrigable Parcels Total Use = 3.91 feet x 645.9 acres = 2,525.47 ac-ft/yr Large Irrigable Parcels Consumptive Use = 3.32 feet x 645.9 acres = 2,144.39 ac-ft/yr


Figure 6. Example Large Irrigable Parcel (1996 (top) compared to 2018 (bottom))

Hop Field Cover Crop

The most common crop grown in SMID is hops. Historically and leading up to the CFO, hops in SMID were irrigated on a 7 foot by 7 foot spacing with rill or flood irrigation across the entirety of the parcel. This supported a cover crop between the rows that was either harvested or tilled under for mulching throughout the season. Aspect obtained a 1939 photo of hops being grown in 1939 that shows the close spacing supported by multiple rills between rows after a recent tilling of the soil (Figure 7).


Figure 7. Hop Irrigation with Rill in 1939 (Lang, 1939)

This method continued until the 1990s when drip irrigation innovations began to occur (Roy, 2020). Because drip irrigation allowed for precision application to the hop roots, spacing between the hop rows could be expanded for ease in harvesting. A 14 x 3.5 foot spacing replaced the 7 x 7 foot spacing for the same number of plants per acre but multiple other benefits (e.g. better yield, lower water use, improved harvest, weed/cover crop suppression) (Roy, 2020). Evidence of these changes can be seen in aerial photos. Figure 8 shows a time series comparing July 1981 and July 1996. Both photos are black and white. In 1981, the higher cover crop plant density supported by rill irrigation shows a much darker photo suggesting higher evapotranspiration (ET). By 1996, white striations in the photo and a lower overall coloring suggests lower ET following wider plant rows supported by drip irrigation.

Aspect’s investigation into these practices was aided in that the bulk of the hop acreage being farmed in SMID is done by a few family farms, including 1,300 acres by Roy Farms (Roy, 2020). Aspect conducted a GIS analysis to identify hop ground in SMID supported by CH2M and SMID observations, and then interviewed and toured approximately two-thirds of the hop ground. The goal of these interviews was to confirm drip irrigation use compared to the flood or rill confirmed in the 1998 CFO, confirm standardized 14’ x 3.5’ spacing, and confirm that cover crops are primarily supported by antecedent soil moisture from spring rain and not targeted irrigation practices (Roy, 2020).


Figure 8. Hop Irrigation Field Comparison July 1981 to July 1996

Aspect conducted field monitoring across 10 fields in June, July, and August 2019, to observe irrigation practices and confirm the extent of cover crop growth. Figures 9 and 10 show time series photos from these field investigations. Hop plantings spaced 14 feet apart are shown running into each photo supported by drip irrigation lines at the base. Vegetation consisting of both hops and non-target weeds is relatively lush at the base of the hop poles where water from the drip line is plentiful. Moving towards the center of the rows, vegetation becomes sparser. In June, a fairly substantial number of weeds that show green growth are evident. By July, the number and magnitude of the weeds have diminished substantially. By August, only a few weeds remain and they are not collocated near the only source of irrigation water. Kochia is one of the dominant weeds still remaining, which is a tap root supported weed capable of surviving off of antecedent moisture well into the summer. The diminishing weed growth, the location far from where drip irrigation supports plant life, and general irrigation practices support the premise that nearly all of the cover crop historically supported by rill irrigation is no longer irrigated.


Figure 9. Hop Irrigation Field 1 Comparison June, July, and August

Figure 10. Hop Irrigation Field 2 Comparison June, July, and August


Aspect noted that while cover crop was not actively supported across the width of the rows as historically when rill irrigation was the norm, there was a small amount of non-target weed growth extending out from the drip lines. Current cultivation practices include disking close to the hop plant base to destroy those weeds plus spraying, mowing, tilling, and other methods to discourage weed growth. Still, the conversion from rill to drip did not result in 100% reduction in cover crop growth. To assume so could impair TWSA. Aspect took measurements of the extent of weed growth during the 2019 field season to estimate the lateral extent of irrigation supported growth and concluded that approximately 7 to 12% of the row spacing had some non-target weed growth. Following review by SMID and presentations to Yakima-basin stakeholders, Aspect recommended an 88% reduction in cover crop savings based on the higher, and more conservative measurements. Figure 11 provides a schematic of former rill irrigation and closer plant spacing to modern drip irrigation and wider plant spacing.

Figure 11. Schematic of Hop Cover Crop Reduction (Brouwer, 1988)

Black and white overlay graphics adapted by Aspect from the citation.

Aspect measured 3,578.78 acres of hops fields in GIS. All hops fields in SMID are currently irrigated using drip irrigation practices. Based on multiple line of evidence approach (farmer interviews for 63% of the District’s hop area, air photo analysis, field measurements, and periodic field observations over the course of the 2019, irrigation season for the select rows), it was determined that an average of 12% of the cover crop benefits from the current drip irrigation, as compared to 100% of the cover crop when the hops fields were irrigated with flood irrigation. The WIG provides cover crop estimates for a multitude of crops. The average duty for cover crop for the Moxee station was calculated to be 10.17 inches or 0.847 ft. This was based on comparing the CIR for cover to non-cover crops in the WIG. The consumptive use saving calculations are presented below:

Historic Rill Irrigation CIR (hops) from Table 4 = 27.88 inches = 2.32 feet Average Cover Crop Use = 10.17 inches = 0.847 feet CIR for hops with cover = 2.32 + 0.847 feet = 3.17 feet. Graded furrow from GUID 1210 has an Ea of 65% and CU of 70%


Total use = 3.17 feet / 65% = 4.88 feet Total use = 4.88 feet x 3,578.8 acres = 17,453.5 ac-ft/yr Consumptive use = 17,453.5 ac-ft/yr x 70% = 12,217.5 ac-ft/yr. Current Drip Irrigation CIR (hops) from Table 4 = 27.88 inches = 2.32 feet Average Cover Crop Use = 12% x 0.847 = 0.10 feet CIR for hops with cover = 2.32 + 0.10 feet = 2.42 feet. Drip from GUID 1210 has an Ea of 88% and CU of 93% Total use = 2.42 feet / 88% = 2.75 feet Total use = 2.75 feet x 3,578.8 acres = 9,841.7 ac-ft/yr Consumptive use = 9,841.7 ac-ft/yr x 93% = 9,152.8 ac-ft/yr. Consumptive Use Savings for Hops Consumptive Use Savings = 12,217.5 – 9,152.8 = 3,064.7 ac-ft/yr

Right-of-Way Canal Evaporation and Vegetation Savings

One of the responses SMID took in trying to address less water available from its diversions was to become more efficient. This included hiring CH2M to develop a Comprehensive Irrigation Conservation Plan and begin implementing conservation improvements. SMID has converted 3.28 miles of open canal to piped conveyances and was able to decommission another 0.68 miles through alignment improvements. This resulted in reduced conveyance losses, some of which are consumptive from reduced free surface evaporation. Ecology has previously recognized non-wasteful, reasonable quantities of consumptive savings from conveyance improvement projects (e.g. Pioneer Water Association Improvement Project, Chelan PUD Entiat Canal Decommissioning, MVID Rehabilitation Project, Barkley Irrigating Company Instream Flow Improvement Project). Aspect investigated pan evaporation data for the project area from the Western Regional Climate Center (WRCC), which provides average monthly values at Yakima for the period between 1946 and 2005 (WRCC, 2005). Pan evaporation between mid-March and mid-October, when the SMID canals are filled, averages 47.21 inches (3.93 ft). To estimate evaporation from a free surface (i.e., the surface of a canal), a pan coefficient was used for the Project area, based on the guidance from the National Oceanic and Atmospheric Administration (NOAA) Evaporation Atlas for the Contiguous 48 United States. (Farnsworth, 1982). A coefficient of 0.74 was derived from Map 4 in the Atlas, Map of Coefficients to Convert Class A Pan Evaporation to Free Water Surface Evaporation. This resulted in a consumptive use savings of 2.91 feet, which was used for canal surface evaporation. Total consumptive use was calculated as follows:

Canal width based on field surveys = 5 feet Total canal improved = 0.68 + 3.28 = 3.96 miles Surface area = (3.96 miles x 5,280 feet/mile x 5 feet) / 43,560 ft2

/ acre = 2.4 acres Consumptive use = 2.91 feet/acre x 2.4 acres = 6.98 ac-ft/yr

In addition to the free surface evaporation savings, the former canal alignment now consists of a gravel maintenance road within SMID right-of-way as shown in Figure 12. Former vegetation within that right-of-way no longer consumes water from SMID, which Ecology has recognized in similar projects.


Figure 12. Canal Rehabilitation Project

Aspect conducted field surveys of SMID canal right-of-way in 2016 to identify the types of vegetation commonly growing. These included cottonwood, willow, rose, reed canary grass, and a variety of weedy grasses. Evapotranspiration for these plants can be estimated by multiplying Reference ET by a crop-specific coefficient, which is the same process used in the WIG. Reference ET was selected using the Reclamation AgriMet station in Harrah, WA for 2015 at 53.97 inches. A crop coefficient (Kc) of 1.08 was selected for the riparian vegetation based on literature values and similar Ecology approvals. Typical extent of canal dependent vegetation on either side of the canal was conservatively estimated at 2 feet on each side (total of 4 feet) based on field surveys within SMID right-of-way and control, and based on reasonable SMID canal maintenance (pruning, vegetation control). This results in a riparian consumptive use totaling 7.84 ac-ft/yr for the mid-March through October period when the canals are operating as shown in Table 6 and the calculations below.

Table 6. Riparian Canal Estimates (AgriMet, Harrah Station)

Mar 15 Apr May Jun Jul Aug Sep Oct Total

ET (in) 1.67 5.39 7.71 10.81 11.36 9.01 5.56 3.3 54.81

Consumptive Use = Reference ET x Kc x Acres Consumptive Use = (54.81 inches / 12) x (1.08) x (4 feet x 3.28 miles x 5,280 feet/mile / 43,560 ft2 / acre) Consumptive Use = 7.84 ac-ft/yr


Total Use and Consumptive Use Savings Summary

Change Application No. CS4-84594-J requests to change 38 cfs and 13,781 ac-ft/yr as authorized under S4-84594-J to instream flow and mitigation purposes and to transfer the right to Trust. The consumptive use savings from the sections above total 9,083.11 ac-ft/yr as shown in Table 7. The magnitude of these savings is consistent with annual trust donations conveyed by SMID each year.

Table 7. Consumptive Water Use Savings Summary

Consumptive Use Savings Type Ac-ft/yr

Small Parcel Impervious Surface 943.58

Large Parcel Impervious Surface 2,799.76

Roads 115.87

Large Parcels, Irrigable 2,144.39

Hops Fields Cover Crop 3,064.69

Right-of-Way Canal Evapotranspiration and Vegetation 14.82

Total 9,083.11

As stated previously, SMID selected S4-84594-J to establish its water bank because of the legacy compliance issue that required resolution, and because it was large enough to accommodate the surplus savings indicated by the trust donations. However, SMID needs the difference between the authorized quantity under S4-84594-J and the surplus water savings for irrigation for SMID members for current irrigation along with its other rights. The difference requested in the mitigated permit will again right-size SMID’s portfolio for current members’ needs. This difference includes both on-farm irrigation needs and conveyance loss from SMID canals up to the authorized limit for S4-84594-J of 13,781 ac-ft/yr. The calculations below use the same assumptions as stated in the sections above for surplus water.

S4-84594-J Authorization = 13,781 ac-ft/yr for irrigation of 2001.94 acres. Surplus water quantity (all consumptive) from Table 7 = 9,083.11 SMID’s Mitigated Application S4-33421 requests 3,278.8 ac-ft/yr for irrigation of 839.5 acres. Consumptive Use for 839.5 acres = 3.32 feet x 839.5 acres = 2,787.14 ac-ft/yr Total Use for 839.5 acres = 3,278.80 ac-ft/yr, consistent with 3.91 foot total water duty assumption.

Subtotal = 9,083.11 ac-ft/yr in surplus water savings to remain in trust

+ 3,278.80 ac-ft/yr in new Mitigated Permit 12,361.91 ac-ft/yr

Return Flow = 1,419.09 ac-ft/yr, including conveyance loss co-managed across all of SMID’s rights. Total = 13,781 ac-ft/yr, consistent with tentative determination. Consumptive Total for Trust = 9,083.11 ac-ft/yr (surplus) and 2,787.14 ac-ft/yr (mitigated permit) Consumptive Total for Trust = 11,870.25 ac-ft/yr


Monthly Trust Schedule

Based on the Total Use and Consumptive Use outlined above, Aspect derived the following trust water schedule for managing S4-84594-J in Table 8. The following methodology was used:

1. The “shape” of the trust water curve was selected for consistency with the Acquavella authorization by using a relative percent of the cfs authorized in each month.

2. The Primary Reach (including return flow) extends from RM 116 at the historic point of diversion to the approximate end of the Hubbard Canal at RM 107.5. The cfs apportionment is slightly less in each month than the Acquavella peaking by virtue of the averaging nature of the trust calculations and the variable number of days in each month.

3. The Secondary Reach (consumptive use only) extends from RM 107.5 (end of Hubbard Canal) to approximately Bonneville Dam, which is the extent of the area for potential future water bank customers as noticed.

4. The Mitigated Permit extends from the upstream Pomona Diversion at RM 129.1 (additional detail on the upstream transfer presented later in this report) to the end of the Hubbard Canal at RM 107.5. This water right will have both consumptive and return flow portions outlined in the table that will be used in this affected reach.

5. Total volumes in Table 8 for each reach are consistent with the surplus quantities in Table 7 and the calculations above.

The balance of this report is focused on the statutory tests for transfer and issuing the new mitigated water right.


Table 8. Trust Water Schedule

Reach Apr May Jun Jul Aug Sep Oct Total

Days in Month -- 30 31 30 31 31 30 31 --

S4-84594-J Schedule (cfs) -- 38 38 38 38 38 29 22 2411

Relative Percent (%) -- 16% 16% 16% 16% 16% 12% 9%

Primary Reach

Primary Reach (ac-ft/yr)

Yak RM 116 to 107.5

2172.94

2172.94

2172.94

2172.94

2172.94

1658.29

1258.02

13,781.00

Primary Reach (cfs)

Yak RM 116 to 107.5

36.58

35.40

36.58

35.40

35.40

27.92

20.50

Secondary Reach

CU Water Bank (ac-ft/yr)

Yak RM 107.5 to Col RM 168

1432.19

1432.19

1432.19

1432.19

1432.19

1092.99

829.16

9,083.1

CU Water Bank (cfs)

Yak RM 107.5 to Col RM 168

24.11

23.33

24.11

23.33

23.33

18.40

13.51

Mitigated Permit

Total Mitigated Permit (ac-ft/yr)

Yak RM 129.1 to 107.5

516.99

516.99

516.99

516.99

516.99

394.54

299.31 3,278.8

Total Mitigated Permit (cfs) Yak RM 129.1 to 107.5

8.70 8.42 8.70 8.42 8.42 6.64 4.88

CU Mitigated Permit (ac-ft/yr)

Yak RM 129.1 to 107.5

439.47 439.47 439.47 439.47 439.47 335.38 254.43 2,787.1

CU Mitigated Permit (cfs) Yak RM 129.1 to 107.5

7.40 7.16 7.40 7.16 7.16 5.65 4.15

RF Mitigated Permit (ac-ft/yr)

Yak RM 129.1 to 107.5

77.52 77.52 77.52 77.52 77.52 59.16 44.88 491.7

RF Mitigated Permit (cfs) Yak RM 129.1 to 107.5

1.31 1.26 1.31 1.26 1.26 1.00 0.73

1 Used to calculate relative percent of annual trust quantity. Not representative of a total authorization.

DRAFT CHANGE REPORT OF EXAMINATION 33 CS4-84594-J

ANALYSIS

Under Washington State statutory (RCW 90.03.380 and 90.44.100) and case law, in evaluating the water right change applications for CS4-84594-J and CS4-84595-J, Ecology is required to determine whether, and to what extent, a water right is valid and eligible to be changed. RCW 90.03.380(1) states that a water right that has been put to beneficial use may be changed. The point of diversion, place of use, and purpose of use may be changed if it would not result in harm or injury to other water rights. The Washington Supreme Court has held that Ecology, when processing an application for change to a water right, is required to make a tentative determination of extent and validity of the claim or right. This is necessary to establish whether the claim or right (or portion thereof) is eligible for change. (R.D. Merrill Co. v. Pollution Control Bd., 1999) and (OWL, INC. v. Town of Twisp, 1997). Further, the following criteria must be assessed for a change to trust (CS4-84594-J) and a change in point of diversion (CS4-84595-J).

The existing rights must not be enlarged.

The water source must not change.

The proposed change and resulting water use must not cause impairment of existing rights.

The proposed change and resulting water use must not be detrimental to the public interest (trust water right only).

Ecology must also evaluate whether the statutory tests for issuing a new Mitigated Permit for Application S4-33241 are met. To approve the application, Ecology must issue written findings of fact and determine that each of the following four requirements of RCW 90.03.290 has been satisfied:

1. The proposed appropriation would be put to a beneficial use; 2. Water is available for appropriation; 3. The proposed appropriation would not impair existing water rights; and 4. The proposed appropriation would not be detrimental to the public welfare.

In the Yakima Basin, these standards are often evaluated in the context of whether there will be a consumptive use impact to TWSA (see Impairment section below for more information on TWSA). The following sections address each of these statutory tests.

Tentative Determination of Validity and Extent

A tentative determination of the validity and extent of a water right must be performed for any proposed water right change. Ecology must evaluate the historical use of the subject right and other factors to determine the rate and quantity of water that may be changed. The History of Water Use and Trust Water Calculations sections above outline the quantities that are eligible under S4-84594-J for acquisition by Ecology into the Trust Water Rights Program as well as water eligible for change under S4-84595-J. Those sections consider the diverted quantities by SMID and irrigation by members of SMID, periods of non-use and relinquishment exceptions, and ultimately result in the eligible quantities for change below:

- S4-84594-J: o 38 cfs April 1 through August 31, 29 cfs in September, and 22 cfs in October. o A total annual quantity of 13,781 ac-ft/yr for irrigation of 2001.94 acres, frost

protection, other agricultural purposes and stock water.


o Using the portfolio approach to the consumptive use savings, 11,870.25 ac-ft/yr of consumptive water.

- S4-84595-J: o A maximum of 3.1 cfs (1.4 in April, 2.3 in May, 3.1 in June, 3.0 in July/August, 2.1 in

September, 1.0 in October) o 959.4 ac-ft/yr for irrigation of 345 acres and incidental domestic supply which includes

lawns, gardens and landscaping.

Enlargement

A water right may not be enlarged through the change process.

Proposed Use for S4-84595-J

There is no change in the proposed water duty for S4-84595-J. The upstream move in the point of diversion will not increase the quantities accessible to SMID or the season of use of this water right.

Consumptive Water Use for S4-84594-J

In the Trust Water Right Calculations for S4-84594-J section above, we mentioned the portfolio approach to calculating the consumptive use savings for SMID’s water rights. Since only S4-84594-J is proposed for change in this application, we find it prudent to address two potential enlargement scenarios:

1. Consumptive use savings from the SMID portfolio eligible for change in the future. 2. Consumptive use savings for other senior and proratable water rights.

Any future change to the water rights in SMID’s portfolio would only be allowed to have consumptive water credit for additional water savings beyond what is considered in this report. In order to prevent enlargement related to Issue 1 above, we propose the provision below:

The consumptive use savings for S4-84594-J reflect the savings over the entirety of SMID’s portfolio of water rights (S4-84590-J, S4-84591-J, S4-84592-J, S4-84593-J, S4-84594-J, S4-84595-J). Future changes to SMID’s water rights shall only credit savings beyond what has been identified in the Report of Examination for CS4-84594-J.

Table 1 identifies the six water rights in SMID’s portfolio. Three of the water rights, S4-84592-J, S4-84593-J, and S4-84595-J, have a May 10, 1905, priority date, which are subject to frequent curtailment. These water rights are subject to prorationing by Reclamation based on the TWSA calculated for the irrigation season (see Impairment section below for more information on TWSA). A total of 6,347.7 acre-feet/year of 44,098.4 acre-feet/year (~14.4%) are proratable. SMID is creating its trust water quantities with the senior portion of its water right portfolio, which means that future curtailment on existing SMID users will be slightly higher as a result (the quantity retained outside of trust). SMID is making this tradeoff because bank proceeds will fund further conservation and improvement projects that will help improve physical water supply to existing SMID users at a lower cost. The new ratio of prorationing outside of trust is the prorationed rights (6,347.7 acre-feet/year) divided by the new total quantity of rights SMID manages outside of trust (33,587.20 acre-feet/year), or ~18.9% of its irrigation portfolio. We propose the following provision to address Issue 2:

The SMID Water Bank under S4-84594-J has senior consumptive quantities related to SMID’s portfolio of water rights, which includes senior and proratable water rights. The total quantities for the water bank and the retained irrigation shall at no time exceed the quantities that would


have been available to SMID prior to establishment of the water bank, including during years of prorationing. In addition, consumptive quantities in the water bank and available to SMID for irrigation under water made available by this change cannot exceed the consumptive limitation identified in this report. While the planned efficiency improvements are likely to aid in preventing enlargement of total and consumptive use, Ecology is requiring that SMID provide a consumptive use audit to Ecology quinquennially. SMID must ensure that allowable consumptive use is not exceeded and therefore that TWSA is not impacted during periods of prorationing.

The above provisions will prevent enlargement of SMID’s portfolio of water rights in the creation of the SMID Water Bank.

Same Source

The existing and proposed points of diversion must draw water from the same source of supply. For S4-84595-J, the Yakima River is the source for both the existing and proposed points of diversion. The water eligible for change under S4-84594-J is proposed to be left instream at River Mile 116.

Water Availability

Water must be physically and legally available at the proposed point(s) of withdrawal for Application S4-33241. For water to be physically available, it must be present in quantities and quality and on a sufficiently frequent basis to provide a reasonably reliable source for the requested beneficial use or uses. In this instance, Application S4-33241 is authorizing an existing use currently authorized under a portion of S4-84594-J that is being conveyed to trust. Water has historically been available to support those uses as determined in the Acquavella Adjudication. The water diversion was damaged in the 1996 Flood and destroyed in December 1999, which prevented SMID from fully utilizing this water right in the early 2000s. This application adds three points of diversion that will resolve this long-standing physical supply challenge. Application S4-33241 is mitigated by an equivalent amount of trust water that is senior to May 10, 1905, and will contain a provision that preserves the regulatory scheme of the underlying senior water right (S4-84594-J; priority date: January 26, 1887). Water is physically and legally available for S4-33241 as proposed.

Beneficial Use

The proposed change must be for a continued beneficial use of water. In the Supreme Court case Ecology v. Grimes, the Court held that “for the purposes of appropriated water rights, ‘beneficial use’ has two elements: (1) the purposes or types of activities for which the water may be used and (2) the amount of water that may be used as limited by the principle of ‘reasonable use’ ” (Ecology v. Grimes, 1993). Reasonable use of water is determined by analysis of the factors of water duty and waste based on local custom. Application S4-33241 requests seasonal irrigation use that reflects existing conditions. The proposed application is needed because the surplus water savings do not perfectly align with any specific one of SMID’s existing water rights. Therefore, a slightly larger water right is being conveyed to trust to establish the SMID Water Bank, and the balance to cover existing irrigation uses is being issued back to SMID. The uses of water for irrigation and related purposes are defined in statute as beneficial uses (RCW 90.54.020(1)). Thus, this application meets the requirement that the purposes or types of activities for which the water will be used are beneficial.


Impairment

In analyzing impairment, Ecology must make a determination as to whether existing water rights, including instream flows established by Ecology rules, may be impaired by the proposed change. The analysis will compare impacts that can occur under the existing water right to impacts anticipated if the proposed change is authorized. There are three potential areas of impairment to consider for Change Applications CS4-84594-J and CS4-84595-J, and New Application S4-33241:

1. Whether the change to trust for instream flow and mitigation for CS4-84594-J will cause impairment.

2. Whether the additional points of diversion for CS4-84595-J will cause impairment. 3. Whether three new points of diversion under S4-33241 will cause impairment.

Total Water Supply Available (TWSA)

The Yakima River Basin has a unique accounting due to its highly regulated flow regime, managed by Reclamation. The 1945 Consent Decree of the District Court of Eastern Washington established Reclamation’s operations framework. There are three classes of water rights, non-proratable, proratable, and junior. Non-proratable users, with the senior water rights, receive their water supply first, then proratable users with May 10, 1905, priority dates, and finally junior users. During water-short years, proratable users evenly divide the remaining water after non-proratable users have been satisfied, while junior users are curtailed. The TWSA on the Yakima River is measured at a USGS gage at Parker, WA (12505000, PARW) using the April through September runoff. Reclamation forecasts the TWSA throughout the irrigation season to distribute water accordingly. An impairment test in the Yakima Basin must consider the impact to TWSA.

Change to Trust

A transfer to trust for instream flow and mitigation generally cannot impair existing rights because that permitting decision only increases water available in the river. Future permitting actions that obligate or debit quantities in trust have a separate impairment standard at the time of that discrete permitting action. From a holistic standpoint, Ecology prefers to consider the implications of the overall water bank goals and program administration to ensure that a future impairment condition is not likely. In this instance:

1. The water right being conveyed to trust is valid. 2. The consumptive quantities have been calculated and the bank proposes to debit on

consumptive use offsets to ensure no impairment to TWSA. 3. The trust water agreement and permits will be provisioned with sufficient tracking mechanisms

to ensure that over-debiting of the bank does not inadvertently occur. The following provision is proposed to track the consumptive use by SMID:

In coordination with metering data submittals on January 31, every 5 years beginning in 2026, SMID shall submit to Ecology a consumptive use audit using similar methodology to that conducted in the Report of Examination for CS4-84594-J.

On December 11, 2019, SMID informed Ecology of its Purchase and Sale Agreement (PSA) with Benton County. In the PSA, Benton County will purchase up to 300 ac-ft/yr of consumptive water from the SMID Water Bank that is proposed to be established with the consumptive use savings under S4-84594-J. This 300 ac-ft/yr of consumptive use would help establish mitigation to offset domestic use in Benton County’s Rural Water Supply Program in the Lower Yakima Watershed, WRIA 37 (Benton County, 2020).


The proposed 300 ac-ft/yr of consumptive water would be protected in the Trust Water Rights Program while traveling from the former Moxee-Hubbard diversion down past PARW to be used as mitigation in Benton County.

New Pomona Diversion

Both CS4-84595-J and S4-33241 request diversions at the existing SMID Pomona diversion. This represents an upstream transfer relative to quantities that will be conveyed to trust under CS4-84594-J. SMID has been authorized in 2005 and 2006 by the Acquavella Court to divert its Hubbard rights at Pomona. These were annual authorizations and subject to an unresolved concern over fisheries and Reclamation operations impacts that prevented a permanent solution. In some years, because of the lack of resolution of this challenging issue, SMID was forced to divert some of its supplies from Pomona because no other source was available.

Although the reach of the Yakima River between the former Hubbard and Pomona diversions is generally water-rich in most years and most times of the year, there are certain water year/water month combinations that could impact fish. The Yakama Nation has a time-immemorial right to the Yakima River fishery that must be considered under the impairment test. Reclamation has water rights and water service contract obligations (including to SMID) that require careful management of its reservoirs to meet TWSA. By moving supply from the former Hubbard diversion to Pomona, those supplies can only be met from three of the five Yakima River dams, instead of all five.

SMID facilitated numerous meetings with key basin stakeholders in preparing to bring these applications to Ecology for resolution (see Public Interest section below). After listening to all the concerns, SMID proposed a specific reduction at the Pomona diversion associated with the former Hubbard water rights. This proposal was then vetted with the fisheries co-managers, the WTWG, and Reclamation, and noticed in the newspaper, trust water creation notice letters, and publication on the internet via this report. No comments adverse to SMID’s proposed mitigation were received.

Figure 13 provides a graphical representation of the proposed mitigation by SMID. The blue solid line represents the existing Pomona authorizations confirmed by the Acquavella Court for SMID’s rights in Table 1. The gray dotted line represents the diversionary authorization if all of SMID’s former Hubbard diversionary rights were also exercised at Pomona. The solid black arrows show SMID’s proposed diversions inclusive of all rights at Pomona to respect fish critical fish out-migration and “flip-flop” windows on the shoulders of the irrigation season. The dotted black arrow reflects an instream-flow-specific operational scheme that allows SMID to divert more water in early June in wet years, and less water in dry years. This respects some of the uncertainty regarding the end date of fish outmigration.


Figure 13: Proposed Pomona Diversion Mitigation SMID proposes the following provision to embody its mitigation proposal for CS4-84595-J and S4-33241:

Instantaneous diversions for this authorization at the Pomona diversion shall not exceed the historic authorized quantities for S4-84590-J, S4-84591-J, S4-84592-J, and S4-84593-J during the following periods: • April 1 to May 31. • June 1 to June 15, during periods when flows as measured at Roza Dam (RBDW) fall below

1,300 cfs. • September 1 to October 1.

From June 15, to August 31, the instantaneous quantity in this authorization is additive to the quantities authorized for S4-84590-J, S4-84591-J, S4-84592-J, and S4-84593-J.

This proposal balances SMID diversionary needs and fish operations and does not impair existing rights. It is also appropriate to consider overlapping or intervening water rights in an impairment analysis. The only diversionary right that could be impacted by the upstream move to Pomona is that for the Taylor Ditch. Given the restrictions above and Yakima River flows, including deliveries by Reclamation to major irrigation districts downstream (e.g. SVID, KID, WIP, etc.), SMID’s exercise of this additional quantity at Pomona should not conflict with Taylor Ditch diversions. However, out of an abundance of caution, SMID consulted with Taylor Ditch Company on the transfer.


On April 23, 2020, Taylor Ditch Company supplied a conditional letter of support for the SMID transfer so long as SMID agreed that the new additional diversions at Pomona be reduced if they resulted in a diminishment of Taylor Ditch diversions. SMID agreed that subordination of its additional quantities could accomplish its goals as outlined in the following provision:

Instantaneous quantity in this authorization additive to the quantities authorized for S4-84590-J, S4-84591-J, S4-84592-J, and S4-84593-J is subordinate to Taylor Ditch’s 23 cfs water right in the reach of the Yakima River between the former Hubbard diversion and the Pomona diversion.

Based on these proposed mitigation measures, no impairment of the diversion of water at Pomona by SMID should result from approving CS4-84595-J and S4-33241.

New Roza Wasteway Diversion

The Roza Wasteway has been intermittently authorized for SMID since 2000, although in many years water supply is not fully available due to power subordination or low river flow limitations. Although this source is only intermittently available, having this additional source of supply will provide source redundancy and allow for less reliance on additional diversions from Pomona which have been the central concern of fisheries co-managers and Reclamation. Provided supplies to SMID are curtailed during power subordination or low stream flows as historically authorized, no impairment should result. The following provision for CS4-84595-J and S4-33241 will ensure this does not occur:

Instantaneous quantity in this authorization shall not occur at the Roza Wasteway when Roza power is subordinated or when flow at the stream gage below Roza Dam (RBDW) is less than 1,300 cfs.

New Fowler Ditch Diversion

The Fowler Ditch diverts water just downstream of the historic SMID Moxee/Hubbard diversion for its canal system. Although the capacity of that diversion is limited, there may be surplus capacity during some times of the year, and the grade is close enough to SMID’s Hubbard Canal that some supply could be diverted from this downstream source in the future instead of at Pomona or the Roza Wasteway. In 2019, Fowler Ditch Company was concerned about loss of conveyance water related to Union Gap Irrigation District (UGID) impacts from the Union Gap Landslide and subsequent changes by UGID to its diversions. SMID agreed to transfer 10 cfs of its normal trust water donation to that Fowler Ditch diversion to assist the Fowler Ditch Company. Ecology approved that one-year change in point of diversion. Fowler Ditch is downstream of the former Hubbard diversion and there are no intervening water users. No impairment can result from approving this point of diversion, and it offers additional mitigation potential for the Pomona transfer. Ecology’s approval of this diversion would still depend on negotiations between SMID and Fowler Ditch Company regarding access, operation, and maintenance, which would be addressed at the end of the development schedule for CS4-84595-J and S4-33241. The changes to S4-84594-J and S4-84595-J and the new application S4-33241 will not cause impairment by following the mitigation measures outlined above and in the Enlargement section above.

Public Interest

Ecology must consider whether the proposed change for CS4-84594-J to trust, and issuance of S4-33241, would be detrimental to the public interest.


Notification to the Washington Department of Fish and Wildlife

Per RCW 90.03.280 and 77.57.020, Ecology must give notice to the Washington State Department of Fish and Wildlife (WDFW) of applications to divert, withdraw, or store water. Notice of the two change applications and one new application filed by SMID was provided to WDFW on November 20, 2019. In addition, meetings were held with WDFW on January 21 and 28, 2020, to discuss the project and proposed mitigation. SMID’s proposal to limit its instantaneous rate during critical fish time periods on the shoulders of the irrigation season at the Pomona diversion came in part out of these consultations. WDFW had no written objections to the proposed applications and final mitigation proposal.

Consultation with Reclamation, the Water Transfer Working Group, Yakima County, and Local Irrigation Districts

From late 2019 through early 2020, additional consultations through numerous meetings were conducted with Reclamation, the Water Transfer Working Group (on December 2, 2019 and February 3, 2020), Yakima County, and the Yakima Basin Joint Board. Reclamation is a trustee on one of the change applications and helps manage TWSA in the basin. The Water Transfer Working Group is comprised of major instream and out-of-stream stakeholders. The Yakima Basin Joint Board is comprised of Yakima basin irrigation districts, the City of Yakima, and other interested groups attend. Some general themes of concern that were expressed during the meetings include concern over the partial upstream move to the Pomona diversion to replace the Moxee/Hubbard diversion lost in the 1996 Flood, and concern over how consumptive use in the water bank would be monitored in the future to protect TWSA. SMID’s proposal to limit its instantaneous rate during critical fish time periods on the shoulders of the irrigation season at the Pomona diversion came in part out of these consultations. In the Impairment section above, SMID also proposed robust water bank tracking rules it would adhere to so TWSA would not be impacted in the future. None of these parties submitted written objections to the proposed applications and final mitigation proposal.

Consultation with the Yakama Nation

Additional consultation was also conducted with Yakama Nation staff on November 18, 2019, and January 21, 2020. SMID’s proposal to limit its instantaneous rate during critical fish time periods on the shoulders of the irrigation season at the Pomona diversion came in part out of these consultations. The Yakama Nation had no written objections to the proposed applications and final mitigation proposal.

State Environmental Policy Act (SEPA)

Under chapter 197-11 WAC, 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;

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.

These application are subject to environmental review under SEPA. The applications requests a change in quantities greater than 1 cfs. In addition, the applications are part of a larger project to establish a regional water bank and mitigate for out-of-priority uses. As a public agency proposing an action, under the SEPA rules, SMID acted as lead agency for the SEPA review investigation. A checklist was completed by SMID to identify potential environmental impacts. The impacts that SMID determined would require mitigation included the consumptive use impacts on the Yakima River from their new water bank and the upstream change in point of diversion to Pomona. These mitigation efforts are fully described above in the Impairment section above. On April 8, 2020, SMID issued a Mitigated Determination of Non-Significance (MDNS). Notice of the MDNS was published in the Yakima Herald on April 9 and 16, 2020. No action was taken on this application for 14 days following the publication of the determination per WAC 197-11-340. No comments were received and the MDNS became final on May 13, 2020. Copies of the MDNS and SEPA Checklist are in Ecology’s file.

Family Farm Water Act (Chapter 90.66 RCW)

Application S4-33241 needs to be evaluated regarding Family Farm Water Act compliance. The Family Farm Water Act defines family farms as a geographic area not more than 6,000 acres of irrigated farmland. Although SMID provides water for over 7,000 acres, SMID members are the irrigators of the land that they own, not the district. The proposed mitigated permit S4-33241 would provide irrigation for up to 839.5 acres. Therefore, although individual SMID members need to comply with the Family Farm Water Act, the District itself does not need to comply with the 6,000 acre limitation. Since SMID is an irrigation district, the proposed mitigated permit would be a public water entity permit.

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. In addition, pursuant to RCW 90.38.040(5)(b) and RCW 90.42.040(5)(b), a notice of creation of a trust water right is required. A combined notice of the three applications was published in The Yakima Herald on February 14 and 21, 2020; in the Tri-Cities Herald on February 18 and 25, 2020; in the Walla Walla Union and Walla Walla Daily Bulletin on March 15 and 22, 2020; and in the Goldendale Sentinel of Goldendale, Washington on February 19 and 26, 2020. On May 8, 2020, trust water creation notice was also sent to all appropriate state agencies, potentially affected local governments and federally recognized tribal governments, and other interested parties in compliance with RCW 90.38.040(5)(b) and RCW 90.42.040(5)(b). No written comments were received during the comment period. The proposed changes by SMID will:

• Restore full water availability to SMID. • Address a long-standing compliance issue. • Provide multiple points of diversion to allow for source redundancy for SMID. • Provide mitigation for instream flow and Reclamation operational impacts that have historically

prevented resolution of the compliance issue.


• Create a water bank that will fund new SMID infrastructure projects, leading to additional conservation and reliability opportunities.

• Create short-term job and sales tax revenue associated with future construction projects for SMID infrastructure.

• Create a water bank that will mitigate for Benton County’s exempt well program. • Create new water supply opportunities for other agricultural, domestic, commercial, industrial,

or drought relief supplies in the Yakima basin and downstream. • Provide for stability and certainty for agricultural supply in the Yakima basin.

We determine that the proposed applications will not be detrimental to the public interest.

Conclusions

Based on the analysis in this Investigator’s Report and the supporting Ecology files, I find that:

The proposed change will not result in an enlargement of the subject water right.

The existing and proposed points of diversion draw water from the same source.

S4-84594-J and S4-84595-J are valid and eligible for change consistent with the 1998 CFO.

The proposed changes and new authorization will not impair existing rights.

The proposed purposes for S4-33241 are beneficial.

Water is available at the new point of withdrawal for S4-33241.

Approval of S4-84594-J and S4-33241 will not be detrimental to the public interest.

RECOMMENDATIONS FOR S4-84594-J

Based on the above investigation and conclusions, I recommend this request for a water right change be APPROVED in the amounts and within the limitations listed below and subject to the provisions listed above.


Recommended Quantities, Purpose of Use, and Project Location

The rate and quantity of water recommended are maximum limits. The permit holder may only divert water at a rate and quantity within the specified limits that are reasonable and beneficial:

Table 9. Recommended Project Limits and Location Maximum Instantaneous Rate (cfs) 38 cfs

Maximum Annual Quantity (ac-ft/yr) 13,781 ac-ft/yr (11,870.25 ac-ft/yr consumptive)

Purposes of Use Instream Flows and Mitigation

Place of Use Instream flows begin at the existing point of diversion within SW¼NW¼ of Section 7, T. 13 N., R. 19 E.W.M. on the Yakima River to its confluence with the Columbia River, then following the Columbia River to its mouth where it discharges to the Pacific Ocean.

Mitigation becomes available at Yakima River Mile 107.5 and continues to the confluence with the Columbia River. Mitigation is then available along the Columbia River to the western edge of Klickitat County (River Mile 168).

Dan Haller, PE, CWRE, Aspect Consulting Date

Ben Carr, Ecology Date

To request ADA accommodation including materials in a format for 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 call TTY at 877-833-6341.


References

Benton County. (2020, February 1). Rural Water Supply Program. Retrieved January 15, 2021, from Benton County, Washington: https://www.co.benton.wa.us/pview.aspx?id=21075&catid=45

Brouwer, C. P. (1988). Irrigation Water Management: Irrigation Methods, Training Manual, 9. Food and Agriculture Organization of the United Nations .

Ecology v. Acquavella, SMID CFO, 77-2-01484-5 (Yakima County Superior Court September 10, 1998). Retrieved from https://appswr.ecology.wa.gov/docs/WaterRights/wrwebpdf/smidcfo.pdf

Ecology v. Grimes, 852 P.2d 1044, 121 Wash. 2d 459 (Supreme Court of Washington May 20, 1993). Farnsworth, R. K. (1982). Evaporation atlas for the contiguous 48 United States. NOAA Technical Report

NWS 33, National Oceanic and Atmospheric Administration, National Weather Service., US Department of Commerce. Retrieved from https://semspub.epa.gov/work/01/554362.pdf

Lang, D. (1939, August). Hop yard, shows poles, wires, irrigation ditch and hop vine, three weeks before picking time. Retrieved from Dorothea Lange in Yakima Valley: http://depts.washington.edu/labpics/zenPhoto/depress/lange/

Memorandum Opinion Re: Unavailability of Water, Cascade Irrigation District, Claim 00891, 77-2-01484-5 (Yakima County Superior Court December 10, 2001). Retrieved from https://appswr.ecology.wa.gov/docs/WaterRights/wrwebpdf/acquavella_memorandumandorders.pdf

OWL, INC. v. Town of Twisp, 947 P.2d 732, 133 Wash. 2d 769 (Supreme Court of Washington December 4, 1997).

R.D. Merrill Co. v. Pollution Control Bd., 969 P.2d 458, 137 Wash. 2d 118 (Supreme Court of Washington January 7, 1999).

Roy, M. (2020). Declaration of Michael Roy. Yakima, WA. WRCC. (2005). Evaporation Stations. Retrieved from Western Regional Climate Center:

https://wrcc.dri.edu/Climate/comp_table_show.php?stype=pan_evap_avg Yakima County Superior Court. (1996). Report of the Court Concerning the Water Rights for the Moxee

Irrigation District. Yakima, WA.

state of washington draft report of examination for …

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