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Water rights fight: Yakama Nation wins appeal in 42-year case known as Acquavella

UPDATED: Fri., Nov. 19, 2021

By Phil Ferolito Yakima Herald-Republic

State authorities cannot regulate the number of acres the Yakama Nation irrigates on its reservation, the Washington State Supreme Court ruled Thursday.

The ruling was in response to three appeals in the massive 42-year case known as Acquavella, which adjudicated water rights throughout the Yakima River Basin.

The state Department of Ecology initiated the water-rights case involving 2,100 complainants in 1977. It concluded in May 2019, when a Yakima County Superior Court judge approved an order that divided the basin into multiple subbasins, each with specified water rights.

Three parties filed appeals challenging portions of the order.

The Yakama Nation challenged the state’s authority to regulate the number of acres it could irrigate. The Rattlesnake Ditch Association claimed the order did not consider expert testimony on the loss of water during delivery, resulting in users getting less than their fair share. And the Ahtanum Irrigation District argued that two natural creeks were unfairly deemed irrigation canals that couldn’t be tapped outside the irrigation season.

On Thursday, the state’s highest court decided in favor of the Yakama Nation and the Rattlesnake Ditch Association, but not the Ahtanum Irrigation District.

The final order approved by a Superior Court judge served as an umbrella over multiple suborders defining each subbasin and its respective water rights.

Yakama Nation

The Yakama Nation took issue with the final order because it limited the tribe’s irrigable land to 120,000 acres. The tribe said there’s more irrigable land than that on the reservation and argued the federal government, not the state, has authority to set those limits.

The Yakama reservation is served by the Wapato Irrigation District, which is operated by the Bureau of Indian Affairs.

The Nation pointed to the order defining the tribe’s water right, which set no limits and conflicted with the final overarching order called the Final Schedule of Water Rights, or FSOR.

Ecology conceded and issued a brief saying as much.

“We accept Ecology’s concession and remand to the superior court to strike the acreage limitations in the FSOR and reiterate that federal law governs how diverted water may be allocated within the Project,” justices wrote in their unanimous decision.

Rattlesnake Ditch

The high court also ruled in favor of the Rattlesnake Ditch Association’s claim that allocations are not fair because expert testimony regarding water loss through conveyance wasn’t included.

A 2-mile-long diversion from Rattlesnake Creek – a tributary of the Naches River – supplies association members.

An expert witness regarding the Nile Ditch said an allocation of 0.02 cubic foot per second (9 gallons a minute) would need to receive 0.033 cfs to make up for delivery loss on a 1-mile-long ditch.

The association requested water allocations be adjusted using the expert witness’ calculations, and proposed increases ranging from 0.01 cfs to 0.033 cfs, depending on the user.

State Supreme Court justices reversed the Superior Court ruling and remanded the matter back for recalculation.

Ahtanum Irrigation

The Ahtanum Irrigation District said two Ahtanum Creek tributaries – Bachelor and Hatton creeks – were unfairly deemed irrigation canals and therefore not allowed to be flowing outside of the irrigation season, which runs from April 15 to July 10.

Both creeks are outfitted with head gates that are to be closed during the offseason.

The irrigation district argued that historically, those creeks flowed naturally and that the head gates were installed later. As a result, the creeks dry up during the offseason, providing no stock water, the district argued.

Supreme Court justices found the creeks to be naturally flowing and said the district did hold a water right to the natural flows, but determined that right was junior to the Yakama Nation’s senior water right on the Ahtanum Creek.

Therefore, the irrigation district cannot open the head gates outside the irrigation season, the high court ruled.

“Because this right is junior to the water rights of the Yakama Nation, it may be exercised only in the unlikely event that the Yakama Nation is not making beneficial use of all the waters of Ahtanum Creek,” the ruling said.

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