Friday, August 25, 2017

Acquavella adjudication winding down

In a fertile valley where water is king

Yakima River water-rights case clarifies water law

While drought has plagued our state in recent years, its toll in the Yakima Valley has been a concern for many generations.

In the summer of 1977, farmers were worried. Was there going to be enough water for their apple, pear, cherry and peach orchards and row crops, like corn, potatoes and melons? And if they came up short, would water wars flare up?

Times were tense. Earlier in 1974, federal Judge George Boldt issued the historic ruling affirming Native American treaty fishing rights. Commercial fisherman complained. And litigants were lining up at the courthouse.

How could conflicts be prevented when managing a finite resource that was largely spoken for, one which gives priority to users as outlined in the state's 1917 surface water law — “first in time, first in right?”

This was the backdrop when Ecology entered into what would become the state's longest-running court case to determine and confirm surface water rights in the Yakima River Basin.

Water rights will be confirmed on the Yakima River Basin and its tributary creeks and canals

After 40 years of painstaking court proceedings and deliberation, the historic Ecology v. James Acquavella, et al legal adjudication soon will be final.

Over the years, the court has issued conditional final orders confirming rights by subbasin in four counties. Now those orders are captured in a single proposed final order that will confirm some 2,500 rights, once a final review period set by Yakima County Superior Court and undertaken by Ecology.

Who was James Acquavella?

James J. Acquavella was the first name listed on the summons when Ecology filed a petition for an adjudication to determine the legality of all claims for surface water in the Yakima River Basin in October of 1977. Henceforth, that became the Ecology v. James Acquavella, et al water rights case. It had a distinctly "aquatic" ring.

According to a 2009 article in the Tri-City Herald, all James Acquavella of Richland wanted to know in 1977 was if he was going to get the water he needed for his five acres, for which he believed he had a legitimate water right.

Before the adjudication, water users relied on irrigation ditch riders and an honor system of claims dating to the 1860s and1870s, while the rights of the Yakama Nation under the 1855 treaty were unquantified and largely unrecognized.

Long years of gathering evidence, and monthly court sessions

Water users had to establish and prove the date of their original, sometimes pioneer, pre-statehood, water use, and how much they were entitled to divert.

Ecology staffers in the Central Region assigned to the case gathered this evidence, beginning a thorough and binding review of all the historical facts.

“This basin has long been thought to be over-appropriated,” explained Ecology's Becky Johnson in 1999, who worked for the court. “In a basin that is over-appropriated, it’s important to establish who has water rights and to prioritize those rights. In a water-short year that can mean the difference of whether you do or don’t have water.”

Farmers would bring in homestead patents that go back to the late 1800s. People brought old court cases dealing with water rights, newspaper articles, and biographies, published books that detailed a family, where they settled, and perhaps the crops they grew.

Major claimants brought articles of incorporation, bylaws, maps, diversion records and other historical documents to help establish a right. Sometimes there were boxes of exhibits that had to be thoroughly examined.

Water lawyers made a career of meeting monthly in Yakima for "water day" and the case made four trips to the state Supreme Court to clarify water laws.

Looking forward

The case examined and prioritized thousands of individual water claims in 31 tributary basins comprising Kittitas, Yakima, and Benton counties and a bit of Klickitat County. It settles old conflicts and will reduce future conflicts, especially among 30 major claimants including cities, irrigation districts, federal entities and the Yakama Nation.

“Now water users have clarity about their water rights and stability on what they can expect going forward,” said Ecology’s deputy director Polly Zehm. “This process brought parties to the courtroom to settle claims, and over the long years laid the foundation for a more collaborative approach to meet all our water needs through adoption of the Yakima Integrated Water Management Plan.”

Open House

On Aug. 10, 2017, Yakima Superior Court Judge F. James Gavin entered a proposed final decree for the case including a draft schedule of rights set to be confirmed over the next eight months.

An open house is scheduled for 5-7 p.m., Sept. 6, 2017, at Ecology’s Central Regional Office, 1250 W. Alder St., Union Gap, where people can ask questions about their water rights and learn more about the process including deadlines for filing objections.

The draft schedule of rights is available for review on Ecology’s website. Anyone may file written objections with the court until Nov. 15, 2017. A schedule for court review and responses to objections will follow as needed until April 14, 2018. More information is available on Ecology’s website.

By Joye Redfield-Wilder, Central Regional communications manager

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