Intergovernmental Agreement For The Yakima Basin Water Resources Agency

This INTERGOVERNMENTAL AGREEMENT (“Agreement”) is made and entered into in accordance with the authority of Chapter 39.34 RCW, the Inter-local Cooperation Act, by and among the interested governments of Benton County, Klickitat County, Yakima County, City of Yakima, City of Ellensburg, Roza Irrigation District, Sunnyside Valley Irrigation District, and Yakima-Tieton Irrigation District, (collectively, the “Parties”), for the purposes of administrating and coordinating the  implementation and possible future amendments of a local watershed plan known as the Watershed Management Plan: Yakima River Basin, January 2003, as approved by Joint Resolution No. 1-2005 by Benton, Klickitat, and Yakima Counties on November 2, 2005, under authority of Chapter 90.82 RCW for the Yakima River basin in WRIAs 37, 38 and 39 (the “Plan”); defining the duties and responsibilities of the coordinating agency created hereby; and providing direction to staff regarding contracting with consultants and  expenditure of grant funds

RECITALS AND FINDINGS:

            WHEREAS, water resource planning has been and continues to be a respon­si­bility of Washington State, counties, cities, water utilities and tribes; and

            WHEREAS, the State of Washington has declared, and the Parties recognize, that proper utilization of the water resources of this state is necessary for the promotion of public health and economic well-being of the state and for the preser­va­tion of its natural resources and aesthetic values; and

            WHEREAS, the Parties recognize that it is in the best interests of the state and the Yakima River Basin that comprehensive water planning be given a high priority so that water resources and associated values can be utilized and enjoyed today and protected for tomorrow; and

            WHEREAS, comprehensive water resource planning must provide interested parties adequate opportunity to participate, and water resource issues are best addressed through cooperation and coordination among the state, local govern­ments, and all interested parties; and

            WHEREAS, pursuant to Chapter 43.21C RCW, comprehensive water resource planning has considered the requirements of the State Environmental Policy Act within the scope of the planning process and must do so in the implementation of actions under the watershed plan; and  

            WHEREAS, utilization and management of the waters of this state are guided by certain general principles, including the principle that uses of water for domestic, stock-watering, industrial, commercial, agricultural irrigation, hydroelectric power production, mining, fish and wildlife maintenance and enhancement, recreational, thermal power production, preservation of environmental and aesthetic values, and all other uses compatible with the employment of the public waters of the state, are beneficial; and

            WHEREAS, because water rights are property rights held by individual citizens, irrigation entities, municipalities, public and private utilities, and governments, the Parties declare that the coordinating agency (CA) created hereby shall have no power or eminent domain authority to impair (a) any lawful water right or use; (b) the capability of water users to divert, convey, or exercise those rights; or (c) the continuation of existing land uses dependent on, or benefited by, those water rights uses; and

            WHEREAS, to prepare and recommend a local watershed plan for approval under Chapter 90.82 RCW, the Parties have worked with willing participants of, or sought input from, the former Yakima River Watershed Council, representatives of state and federal agencies, the Confederated Tribes and Bands of the Yakama Indian Nation, local governments and representatives for agricultural, fisheries, recreational and environ­mental interests; and

WHEREAS, local watershed planning process for WRIAs 37, 38, and 39 was conducted with the approval of the Counties, and with the consent of all other initiating governments per RCW 90.82.130(2), and Kittitas County opted out of such planning with its adoption of Kittitas Co. Board of Commissioners Resolution No. 2005-100; and

WHEREAS on November 2, 2005, the counties of Benton, Yakima, and Klickitat adopted the Plan, as recommended by the Planning Unit previously created pursuant to Chapter 90.82 RCW, by Joint Resolution 1-2005; and

WHEREAS Chapter 8 of the Plan is entitled “Implementation” and specifies a road map for organizing efforts and implementing actions and strategies that are recommended elsewhere in the Plan, including a statement that a coordination agency should be designated or created to coordinate implementation actions and that a water resources advisory committee (WRAC) should be established from the Planning Unit membership to provide ongoing guidance and stakeholder input on implementation and Plan amendments, and

            WHEREAS, because the Plan, including “Chapter 8 Implementation,” was approved by the Planning Unit and submitted to the Counties for approval prior to amendments to Chapter 90.82 RCW pertaining to plan implementation and the role of the planning unit, the provisions of Chapter 8 are both guidance for the organizational structure that will implement the Plan and the framework and criteria within which a Detailed Implementation Plan (DIP) will be prepared and adopted, unless Chapter 8 is amended per Section 3 herein ; and 

            WHEREAS, because it is critical to the success of the planning process that the Parties provide for broad public participation and education regarding the development and implementation of the Plan via a DIP, the Parties are hereby establishing the WRAC contemplated by the Plan, which consists of representatives of the same array of interests and stakeholders that were members of the Planning Unit appointed by the Tri-County Water Resources Agency; and

            WHEREAS, the Confederated Tribes and Bands of the Yakama Indian Nation have not participated in this process, and the Plan does not address water resource issues on the Yakima Reservation; and
           
            WHEREAS, Kittitas County has opted out of the Plan and has declined to participate in the CA; and

            WHEREAS, it is the intention of the Parties that this Intergovernmental Agreement will facilitate the coordination and continuation of planning and implementation of the approved Plan via a DIP; and

            WHEREAS, Klickitat County will monitor the degree to which the plan might  affect its interests and the Klickitat County Board of County Commissioners shall determine whether to appoint representatives from Klickitat County as voting or ex-officio members on the CA or to leave the seats that are reserved for Klickitat County representatives vacant, and Klickitat County will not be obligated for the payment of any dues until such time that it requests to become a voting member, and then such dues shall only be for the current fiscal year;
           
            NOW, THEREFORE, in consideration of the mutual agreements, covenants and promises contained herein, the Parties agree to the following terms:

1.         DEFINITIONS

1.1       “Agency” means the CA referred to in the Plan, and created hereby, which is also called the Yakima Basin Water Resources Agency whose members are the Parties hereto. 

1.2       “Agency Director” means the person hired by the CA to handle day-to-day operations.  Such person shall be an at-will employee and shall serve at the pleasure of the Agency.

•       “County” or “Counties” means Benton, Klickitat and Yakima Counties, indivi­dually or collectively, and excludes Kittitas County, which has opted out of the planning process.

1.4       “Detailed Implementation Plan” means, per RCWs 90.82.043 and 90.82.048, an implementation plan that includes the following, where applicable (i.e., in-stream flows were not included within the scope of the Plan):

• Strategies to provide sufficient water for: (a) Production agriculture; (b) commercial, industrial, and residential use; and (c) in-stream flows. 
• Timelines to achieve the strategies and interim milestones to measure progress, which must address the planned future use of existing water rights for municipal water supply purposes, as defined in RCW 90.03.015, that are inchoate, including how these rights will be used to meet the projected future needs identified in the watershed plan and how the use of these rights will be addressed when implementing instream flow strategies identified in the watershed plan.
• Clearly defined coordination and oversight responsibilities.
• Identification of any needed interlocal agreements, rules, or ordinances; state or local administrative approvals and permits that must be secured; and specific funding mechanisms.  A showing of consultation with other entities planning in the watershed management area to identify and seek to eliminate any activities or policies that are duplicative or inconsistent.

1.5      “Parties” means those entities that are parties to this Intergovernmental Agreement.

• “Local Governments” means counties, cities, towns, irrigation districts and any other taxing authority.

1.7       “Planning Costs” means (1) the cost of preparing the studies and plans relating to the preparation of a DIP; (2) the costs of legal, engineer­ing, and other professional services relating to the formation of the CA and resolution of any disputes related thereto; and (3) other costs reasonably related to the planning process initiation, admin­is­tration, auditing and general project management.

1.8       “Planning and Implementation Process” means the Watershed Plan preparation and implementation process provided in Chapter 90.82 RCW, the associated public involvement and education process, and activities provided for herein.

1.9   “Planning Unit” means the collective representatives of water resource interests who, as an autonomous body authorized under Chapter 90.82 RCW, and previously appointed by the Tri-County Water Resource Agency, were tasked with the responsibility to prepare the Plan. 

1.10     “State” means the State of Washington and any of its agencies.

1.11     “Yakima Basin Water Resources Agency” means the board of that name established in Section 8 of this Agreement.

1.12     “SEPA” means the State Environmental Policy Act as codified in Chapter 43.21C RCW.

• “Water Resources Advisory Committee” or “WRAC” means the         Planning Unit.

2.         DUTIES OF THE YAKIMA BASIN WATER RESOURCES AGENCY

            As described in Chapter 8 of the Plan, the CA shall:

2.1       Provide intergovernmental coordination and communication.

2.2       Receive and administer grants and funds; identify and seek additional funding sources.

2.3       Support specific plan strategies that have multiple basin-wide benefits.

2.4       Monitor plan implementation and the development of a DIP.

2.5       Serve as Information clearinghouse for agencies and individuals with          implementation responsibilities.

2.6       Identify Issues/barriers to be addressed.

2.7       Provide targeted public outreach and coordinate focused outreach as part   of implementing basin-wide strategies.

2.8       Prepare annual progress report in coordination with the WRAC.

2.9       Coordinate watershed plan amendments as recommended by the WRAC.

2.10     Provide administrative support to the WRAC, assist in scheduling meetings, preparing agendas, taking and preparing meeting minutes and other support duties for the WRAC.

2.11     Upon SEPA designation, the Yakima Basin Water Resources Agency shall act as lead agency for SEPA purposes, develop policies and procedures and take such actions as reasonably necessary to insure compliance with SEPA statutory and regulatory requirements.

3.         AMENDMENTS TO THE PLAN

            Plan review for potential amendments shall be conducted annually by the WRAC, with any findings reported to the CA and the Counties.  A comprehensive formal re-opening to identify necessary amendments to the Plan shall be conducted every five years by the CA with support from the WRAC.

            Additionally, the WRAC shall prepare a DIP pursuant to RCW Sections 90.82.043, .048, etc. to be forwarded to the CA and the counties for consideration as a Plan Amendment.

            All Plan amendments including the adoption of the DIP, shall be approved pursuant to the same process required under RCW 90.82.130 for approval of the original Watershed Management Plan: Yakima River Basin, including public hearings and approval by a joint resolution of the legislative authorities of the participating counties, except that the planning process termination provision in RCW 90.82.130 (2) (b) does not apply.
 
4.         ROLES AND RESPONSIBILITY OF THE WRAC

            As described in the Plan, the WRAC will provide ongoing guidance, stakeholder input, planning, implementation, and advisory functions for the Parties.  Other than the responsibilities identified for the WRAC in the Plan, the WRAC shall have no authority not otherwise specifically granted to it by this agreement.

            Upon joint approval of a DIP by the counties, the WRAC shall convene twice annually unless asked by the Yakima Basin Water Resources Agency to convene more frequently to assess the progress of implementation and identify nascent issues related to implementation.

                        As presented in Chapter 8 of the Plan, the following are additional specific WRAC responsibilities:
           

• Submit a DIP to the CA and the Counties per Chapter 90.82 RCW;
• Monitor Plan Implementation;
• Work with the CA to prepare the annual progress report;
• Conduct annual plan review and work with the CA on comprehensive five year Plan amendments;
• Work with the CA and other implementing agencies to identify, frame, and develop solutions for priority management issues; and
• Assist the CA in developing outreach, public involvement and funding strategies for selected actions that have basin-wide benefits.

5.         SUPPORT AND FINANCING FOR PLAN IMPLEMENTATION

5.1       The CA is authorized to apply for and accept grants in the name of the Agency from federal, state, local and private sources, and to distribute grant funds to third parties for the purposes of facilitating the implementation of actions that are recommended in Chapter 8 of the Plan.  The CA may utilize existing grant funds and appropriations in the CA’s accounts for the purposes specified herein.

5.2       The Parties shall not be obligated to pay any debts of the CA or the WRAC.  CA costs shall be funded solely through grants and/or annual dues.  Dues schedule to be determined by the CA each year. The CA may accept voluntary contributions.

5.3       The CA shall approve annual budgets for its operations.  The CA’s fiscal year shall be January 1 through December 31.

5.4       The CA shall not acquire real property.  Any personal property acquired for use by the CA in the name of the CA shall be sold or equitably divided among the Parties upon termination of this Agreement.  If personal property is purchased utilizing State funds, as provided in Chapter 90.82 RCW, then the description of said property, and funds derived from the sale of same, shall be described in the specific grant agreements applicable to said fund sources, as well as in conformity and compliance with State administrative requirements specifically set forth by the funding CA’s policies.

6.         REPORTING REQUIREMENT

           The CA director shall report monthly to the Parties regarding activities during the prior period.  Reports may be provided in writing or by oral statement to the Yakima Basin Water Resources Agency Board at the monthly meeting.

7.         BOOKS, ACCOUNTS AND PERSONNEL POLICIES

7.1       The CA shall establish a special fund with the Yakima County Treasurer to be designated “Implementation Fund of the Yakima Basin Water Resources Agency”.  All sums received by the CA shall be placed in said fund and all sums expended by the CA shall be disbursed from said fund.  The Yakima County Treasurer shall be the custodian of the fund, and the Yakima County Auditor shall keep record of the receipts and disbursements, and shall draw and the Yakima County Treasurer shall honor and pay all warrants, which shall be approved before assurance and payment, as directed by the CA.  All interests earned on sums placed in the CA’s fund shall accrue to such fund.  Reasonable administrative costs incurred by Yakima County in the performance of these duties shall be paid by the CA, provided, the CA is not obligated to pay any such administrative costs in excess of their fair market value.

7.2       The CA shall keep full and complete books of accounts showing the planning costs incurred in connection with the planning process.  The cost of keeping those books shall be considered a planning cost of the CA.  An audit of the books shall be performed annually by the Washington State Auditor. The cost of such audit shall be considered a planning cost.  More frequent audits, if requested by any of the Parties, shall be charged to the Party making the request.

7.3       The CA director and any other supporting staff hired by the CA shall be independent contractors or employees of the State of Washington and/or Yakima County and shall be subject to the personnel policies of the applicable CA.

8.         YAKIMA BASIN WATER RESOURCE AGENCY BOARD

8.1       There is hereby established a Yakima Basin Water Resources Agency Board to act as the governing body for the CA.  All the powers and functions of the CA shall be vested in the Board.

8.2       The Yakima Basin Water Resources Agency Board shall consist of one representative from each participating Party appointed by its legislative authority.  Each such representative shall be an elected official or the senior manager/administrator for the Party he or she represents and shall have one vote.  Each Party shall also designate an official to serve as an alternate with full voting authority when the primary Party representative is not available.  A quorum of the Yakima Basin Water Resources Agency Board shall be four (4) members. The Board shall take action by a simple majority plus one affirmative votes from dues paying members in good standing.

8.3       In January of every even numbered year, the Board shall elect a chairman and vice-chairman, each to serve a two-year term.  The chairman, or in his/her absence the vice-chairman, shall conduct meetings and such other business as author­ized by the Board.

8.4       Parties may withdraw from the CA and the Board by providing thirty days written notice to the CA director or the chairman, or by announcing a withdrawal, effective in 30 days, at a public meeting of the Board.  This Inter­governmental Agreement shall remain valid and in full force and effect and the CA shall continue to serve as the coordinating agency for the watershed planning and implementation process despite any such withdrawal by one or more Parties.

8.5       If one or more Parties withdraw from the CA thus causing the Board to lack a quorum for meeting purposes, as defined in paragraph 8.2, the remaining Board members in attendance shall constitute a quorum for purposes of transacting business at that meeting, provided, no business may be conducted that was not listed on the Board’s agenda for that particular meeting.  The Board shall reexamine and if necessary revise the quorum requirement stated in paragraph 8.2 if two or more Parties withdraw from the CA.

9.         AGENCY AND PUBLIC PARTICIPATION

            The CA shall work in cooperation with the Yakama Nation, state and federal agencies, and local governments.  Public participation, through public hearings as well as other opportunities, shall be provided by the CA as part of its management of the planning process.

10.       PROTECTION OF EXISTING RIGHTS

            The Plan and its implementation authorized by Chapter 90.82 RCW and this Agreement shall not contain any provisions or result in actions that are in conflict with existing state statutes, federal laws, tribal treaty rights or local government ordinances.  The Plan and implementation envisioned by this Agreement is intended to have prospective application only, and to serve as a guide for future planning decisions concerning Yakima River Basin water resource allocation and protection by the Parties, state and federal agencies, and local government.

11.       INTERGOVERNMENTAL AGREEMENT

            This Agreement constitutes an exercise of the Parties’ authority as provided under Chapter 39.34 RCW, the Interlocal Cooperation Act.  A copy of this Agreement and the resolutions from each of the Parties authorizing the execution hereto shall be filed with the county auditor of each County, the State Department of Community, Trade and Economic Development, and the Secretary of State.

12.       EFFECTIVE DATE/TERM OF AGREEMENT

12.1     This Agreement shall be effective upon execution by all signatories hereto.

12.2     This Agreement shall automatically terminate at such time as: a) the Board determines that the CA does not have sufficient funds necessary to meet current planning costs, unless the Parties each agree to contribute funding necessary to meet planning costs for the current fiscal year, or b) all of the Parties have withdrawn in accordance with the procedures set forth herein.

12.3     This Agreement shall continue, through participating Parties, unless earlier terminated by operation of Section 12.2, or at any time upon written agreement of the Parties.  Individual Parties may withdraw from this agreement without affecting the continuation of this agreement. 

13.       GENERAL PROVISIONS

13.1     Multiple Counterparts.  This Agreement may be executed in multiple counterparts, all of which shall constitute one Agreement.  The execution of one counterpart by any party hereto shall not constitute an amendment or require re-execution by the parties, and shall have the same force and effect as if the party had signed all counterparts.  Upon execution of this Agreement in counterpart, a duplicate signature page shall be provided to each other party previously a signatory to the Agreement, without need for further execution or ratification by any other party.

13.2     Severability.  If any term or provision of this Agreement, or the application thereof to any person or circumstances, shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.  Further, the Parties shall negotiate in good faith regarding amendments to this Agreement that would, to the maximum extent possible, effectuate the intent of any provision determined to be invalid or unenforceable.

• Sovereign Immunity.  Nothing in this Agreement should be interpreted as a waiver of sovereign immunity by any party.

• Retained Authority.  There is no ceding of any jurisdictional and/or            regulatory authority of any participating government hereto.  Actions taken        by any participating government are done on a voluntary basis only.

• No Third-Party Beneficiary.  Nothing in this Agreement is intended to create any rights in any entity not a party to this Agreement nor shall any entity be considered a third party beneficiary to this Agreement.

• No Public Official Liability.  No provision of this Agreement nor any authority granted by this Agreement is intended to create or result in any personal liability for any public official or agent of a party, nor shall any provision or provisions of this Agreement be construed to create any such liability.

• Construction.  This Agreement has been freely and fairly negotiated by the Parties hereto and has been reviewed and discussed by legal counsel for each of the Parties, each of whom has had the full opportunity to modify the draftsmanship hereof and, therefore, the terms of this Agreement shall be construed and interpreted without any presumption of other rule requiring constructional interpretation against the party causing the drafting of the Agreement.

• Assignment. The obligations herein may not be assigned without the written consent of the other Parties.

• Complete Agreement.  This Agreement contains the complete statement of the understanding of the Parties with respect to the subject matter of this Agreement.  There are no other representations, agreements, or understandings, oral or written, by the Parties relating to the subject matter of this Agreement that are not fully expressed in this Agreement.  Each Party acknowledges and represents to the other Parties that it is executing this Agreement solely in reliance upon its own judgment and knowledge and that it is not executing this Agreement based upon the representation or covenant of any other Party, or anyone acting on such other Party’s behalf, except as expressly stated herein.  Any modifications or amendments to this Agreement shall be approved in writing by all Parties.

13.10   Amendment.  This Agreement may be modified or amended at any time with the written consent of all signatory parties to the Agreement at the time of the modification or amendment.

13.11   Indemnification. 

13.11.1            In no event shall the Parties, through participation in this Agreement, be liable to the Agency for any act or failure to act under the provisions of this Agreement.  The Parties shall have no duties except those that are expressly set forth herein.  The Parties shall in no event be required to save harmless, defend or indemnify the Agency for any act or failure to act under the provisions of this Agreement, except as otherwise provided by separate agreement.  The Agency shall indemnify, hold harmless, and defend each and every Party to this Agreement, including but not limited to each of the Parties’ officers, directors, employees, agents, and representatives, from any and all claims, including reasonable attorney’s fees, which arise out of the Agency’s actions in furtherance of this Agreement.  Nothing precludes the Agency from contracting for such indemnification; provided, a failure to provide indemnification by such a contractor does not excuse the Agency’s obligation under this Section.

13.11.2            Each Party hereto agrees to be responsible and assume liability for its own negligent acts or omissions, or those of its officers, agents, or employees to the fullest extent required by law, and agrees to save, indemnify, defend and hold the other Parties harmless from all costs, fees, claims, judgments and/or award of damages resulting from any such liability.  In the case of negligence of more than one Party, any damages allowed shall be levied in proportion to the percentage of negligence attributable to each Party, and each Party shall have the right to seek contribution for costs, fees, claims, judgments and/or damages from the other Party in proportion to the percentage of negligence attributable to the other Party.

Addendum

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