DATE:
January 10, 2012
TO:
Craig and Teresa Engbretson
FROM:
Tim Reierson
SUBJECT:
Water Right Summary
The water right permit that applies to the sale property is No. G4-25953(A)P. Over the years Custom Ag has assigned portions of this permit to other parties and retained 825 water right acres from the permit. The below summary shows the steps that have occurred. Key documentation is attached. The current water right that applies is an 825 acre (irrigation purpose) portion of G4-25953(A)P issued January 25, 2008 (Attachment D) in quantities 4583 gpm flow rate and 2965 acre-feet annual volume, for use from March 1-October 31 each year. 1. Permit G4-25953(A)P dated 2/6/2002 previously covered these and other lands, for irrigation of 2000 acres. Attachment A. 2. On July 8, 2005 Custom Ag assigned 850 water right acres and associated quantities from this permit to WA Department of Natural Resources. Attachment B. 3. On October 10, 2005 Custom Ag assigned 325 more water right acres and associated quantities from this permit to FSTN, LLC. Attachment C. 4. On January 25, 2008 the WA Department of Ecology (Ecology) issued a superseding Permit No. G425953(A)P, reducing the irrigation acres from 2000 to 1150 acres with associated reduced quantities. Attachment D. This accounted for the 850 acre assignment, but not the 325 acre assignment. On December 16, 2010, Ecology granted an extension to the permit development schedule to October 1, 2012 for the Completion of Construction phase; copy of approval letter also included in Attachment D. 5. In October 2011 Custom Ag wrote two letters to Ecology seeking corrections to G4-25953(A)P, and also to Permit No. G4-24758P which had been issued with overlapping coverage on the G4-25953(A)P lands. Custom Ag, however, does not own any of the water rights under G4-24758P. Attachment E. 6. A copy of Permit No. G4-24758P issued February 12, 2009 is enclosed. Attachment F. 7. A summary of permitted well sites is enclosed, showing sites retained and assigned to others. Attachment G. 8. A description of the retained place of use is enclosed, along with some noted changes to the place of use which had been planned by Custom Ag, but not yet completed. Attachment H. 9. A map is enclosed showing the retained place of use for the permitted 825 acres. Attachment I.
January 10, 2012
page 1 of 2
Water Right Acres Compared to Irrigated Acres Although the water rights owned by Custom Ag total 825 acres, there are approximately 914.2 acres irrigated within Custom Ag owned lands, which is an excess of 89.2 acres irrigated. Custom Ag planned to cover excess acres by transfer of other rights on a temporary basis for 2012, however they have not yet pursued the permit amendments to carry this out. There are two main options to bring these acres under water right coverage on a permanent basis: (1) water spreading and (2) purchase and transfer of other rights. The basic approach for water spreading would be to use water at a higher rate for two years, such as by increasing double cropping, cover cropping, and/or planting higher demand crops. The permit allows 2965 ac-ft to be used annually which is an average water duty of 3.6 feet on 825 acres. In 2008, Custom Ag used an average water duty of 3.1 feet, which is 2560 ac-ft on 825 acres. By making use of more water, up to 2965 ac-ft on 825 acres for two years, the basis would be established to seek to increase the water right acres, to add an additional 90 or so acres, following procedures under state law (application and approval required). If the 2965 ac-ft usage were established, then this amount of water could potentially be spread over 915 acres (90 additional acres), resulting in an average water right duty of (2965/915) = 3.2 feet. Water spreading must be approved according to state laws, but the foundation to pursue such a change is achieved by first using the water for two years as stated here. The basic laws for amending water rights are found at Revised Code of Washington (RCW) 90.03.380 and RCW 90.44.100. Regarding the option to purchase and transfer additional water rights, this would be another way to cover the added 90 acres. In my experience, it can often be difficult to find a compatible water right that can be transferred to a given site, however I am aware of a water right that is available for sale at the time of this writing; so at least one such option exists currently. Again, such transfers must be approved under state law. Purchases of water rights are typically made contingent on final transfer approval.
ATTACHMENTS: A through I.
January 10, 2012
page 2 of 2
Attachment A Previous Permit No. G4-25953(A)P issued 2-6-2002
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DESCRIPTION OFPROPOStrD WORKS E 1clis cased , i.,e;isure groutedfrom groundsudaceto a depththatcorresponds to 20 feetintoWanapum Formation. DEVELOPMENTSCIIEDIJLE i I IJINPROJECIB\'
WA]ER PT'TTO FULL USE BY TIIIS DATE:
Octoberi, 2005 PROVISIONS 1!ll,iitional rvell .;,r!l!t(lunderthe subjectpermitsshall be casedand pressuregroutedfrom the ground surfacato a deplhjhalleMlpeldsloj2Q li'iit into the Wr, ;rl)!!!!lFolrnation. Mud rotary dfilling is recommendeddue to the sand)./natureofthe interbedsthat will be encountered.The the lirllowing rninimurncasingdepths: !dllef fipdd I ,, r11rrtc Wcll No.5 - Nl ,'jll7r Sec.23, Wcll No. 6 - Sl , ,l.lfi'lr Sec.24, \Veli No. 7 - Si ;liil'2trSec.26, \Veil No. 8 - SI: ,flli% Sec.25,
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\VellNo. I shalri., r'epaiied or decommissioned. ;\.ir,aDpl]lcllm, rrliuuglqugglhall be installedand maintainedin accordancewith the rule "Reouirementsfor MeasuringandRerrorting \Vlrlcrljse". Clr llu I 73-173WAC. Waterusedatashallbe recordedweeklvandshallbe submittedannuallvto Ecologyby January3l s of rrtdunlcldll_!( ,', l!e rule above,,. ,q.lllt1)s the req]]!I989!ts]lor!ata accuracy.deviceinstallationand opclalion.and informationreporting. Jt alsoallowsa water lrlqr to petition i , ,t]ll!r.vfot modificationsto someof the recuirements.Informationon installation.ooerationand maintenancerecuirements .,rc:illlchcd.
,\taminimum lr::lollowing informationshall be includedwith eachsubmittalofwater usedata: Owner. ContactName if Different.Mailing Davtil' ,: llb ,,\tlclress. r i r r c l u d i nu! n i t , Installationanri,!!,1ille,nance of an acces mav be instal[',]rrl.glililition to theaccess oo[t.
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All rvaterwel!: fif$l.octed withi .. .i;. 18.104( Washr,,:,tLy1 water Well ConstructionAct of l97l) and Chapter 173-160WAC (Minimum Standardsfor Constuction afld. r. r r! ,r!e Ugllsl &lnEl!-!se! This authorizar .ii lo-use public waters of the state is classified as a FAMILY FARM PERMIT in accordancewith Chapter 90.66 RCW (Initiative Meir: ,r9.No.59). This meansthe land being iniga(ed under this authorizationshall comply with the following definition: Family Falm - a geol-,il)lt! area includine not more than 6.000 acres of inigated agricultural lands. whether contiguousor noncontiguousjthe conholling in( ','.,1illwhich is held bv a oersonhaving a controlling interestin no more than 6.000 acresof irrigatedagriculturallandsin the Smtr:of Wash!,,..!,)ri \yhichare inigate aulhorizationI i L r-iqrtitrue to conlbrm to the deflnition of a family farm. A oroof insoecr,rr! !!!Ll be conductedD!,ie!-ltej!41!e!!ifiea!eti!su4!ee. The certificatewill reflect the extentof the projectperfectedwithin the linitations of tl .r l)g_Lr,nit. Aspectswill include as applgpdallq_.lthqjeulqqbt capacitv.beneficial sy!19!0-i!!tatrtaneous .r.rctge.l)lJ(e' r L,-rcrrndsrtisl'l.tion ofprovisions.
This 1 . :;ttit slnll be subject to ccncelkiion slnultl the perntitteefail to comply with the above developmentscheduleand/or to gire tptice lo , :, [)(l)urtrrcnt of EcoLogyottforms provitled by that Departmentdocwuenting such conpliance.
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No..G4-25953(A)P
Attachment B Assignment of 850 acres from G4-25953(A)P Custom Ag to WA DNR
Attachment C Assignment of 325 acres from G4-25953(A)P Custom Ag to FSTN
Attachment D Most Current Superseding Permit G4-25953(A)P issued 1-25-2008 Ecology Extension Approval Letter dated 12-16-2010
Attachment E October 2011 Custom Ag Letters to Ecology Seeking Corrections to G4-25953(A)P and G4-24758P
Timothy D. Reierson, PE
6604 Appleview Road Yakima WA 98908 Phone FAX
509 965-7175 509 965-6995
October 11, 2011
Mr. Tom Perkow Department of Ecology 15 West Yakima Avenue, Ste 200 Yakima, WA 98902-3452 SUBJECT:
Permit G4-25953(A)P issued 1/25/2008, Custom Agricultural Services Inc Permit G4-24758P issued 2/12/2009, Thunderridge Farms Inc and Columbia River Bank
I would like to propose corrections to some discrepancies in the above two permits. This letter is written on behalf of Custom Agricultural Services Inc., Thunderridge Farms Inc. (both owned by Craig and Teresa Engbretson) and FSTN LLC (owners Steve West and Corey Bitton). Custom Ag has asked me to make application to amend the place of use of G425953(A)P to include land they purchased in 2008. They have had this in mind for some time. Your recent inquiry into the assignment and superseding permit relating to G424758P is timely, because in preparing to get the change started I found a similar problem with the superseding permit for G4-25953(A)P. In the following discussion some of the dates for filing of assignments might be off a day or two due to papers being received in Olympia and Yakima. G4-24758P issued 2/12/2009 1. Permit Holder Name. In 2005 Thunderridge Farms Inc sold land with water rights to FSTN LLC. Thunderridge (with Columbia River Bank as security interest holder and named permittee) filed assignment on 10/10/2005 conveying all permit quantities to FSTN LLC. At that time FSTN LLC became the owner of this entire permit. In 2009, however, a superseding permit No. G4-24758P issued in the name of "Thunderridge Farms Inc and Columbia River Bank". This was an error. Then (apparently because of the names on the superseding permit) when Thunderridge closed out its debt with Columbia River Bank, an assignment was filed as if to remove the bank from having any interest (assignment filed 11/1/2010). In reality, however, this assignment appears unnecessary and of no practical effect. Thunderridge Farms no longer held any ownership interest in this permit and neither did Columbia River Bank. They were only present in name due to the error on the 2/12/2009 superseding permit.
October 11, 2011
Page 1 of 3
Timothy D. Reierson, PE
6604 Appleview Road Yakima WA 98908 Phone FAX
509 965-7175 509 965-6995
In 2007, FSTN sold and assigned 279 acres of this permit (also noting CG4-24758P@3) to Bybees (assignment filed 9/24/2007). As between FSTN and Bybees, the specific ownership conveyance of lands, wells, well sites and permit quantities were spelled out in the assignment. No superseding permit was issued at that time in response to the Bybee 279 acre assignment. Ecology's issuance of the 2/12/2009 superseding permit is correct in the sense that it encompasses all of the quantities and aspects of use within one permit--encompassing Bybee, FSTN and (though they don't have an ownership interest) lands and water system owned by Custom Ag. The separation of rights into different documents could be done later, such as at proof. This approach would work fine as far as Custom Ag and FSTN are concerned. Bybees should be recognized as permit holders for the part they own. FSTN LLC should be listed as the other permit holder, for its portion. The Bybee quantities are 279 acres, 2740 gpm and 1112 af/yr. The FSTN quantities are (1100-279=) 821 acres, (10800-2740=) 8060 gpm and ( 4386-1112=) 3274 af/yr. Thunderridge (and Custom Ag) is not an owner and should not be listed as a permit holder. As a private arrangement, I did want you to be aware that Custom Ag and FSTN are cooperating such that about 90 acres of the permit quantities held by FSTN LLC are being made available for Custom Ag's use. These acres are within the place of use currently (and previously, therefore no change of water right required) described under G4-24758P and they would like to continue having that flexibility that the current place of use and authorized well sites provide. 2. Merging of Change Authorization/Permit No. CG4-24758P@3. It seems likely that the 2/12/2009 superseding permit for G4-24758P was intended to incorporate the change. I base this on your note to me that the change status for this document was made "inactive" by Ecology in its database back in May 2009. Also, this is consistent with the way that the permit including all the well sites and all places of use. 3. Assignment of Columbia River Bank Security Interest. As mentioned to you previously, my understanding of the issue here is that when FSTN assigned the 279 acres to Bybees, they did not include a signature from Columbia River Bank. If you can confirm that as the question, then I can try to sort things out and talk with FSTN. According to the Federal Deposit Insurance Corporation website for the bank, "on Friday, January 22, 2010, Columbia River Bank, The Dalles, OR was closed by the Oregon Division of Finance and Corporate Securities, and the Federal Deposit Insurance Corporation (FDIC) was named Receiver." Heritage Bank is the current lender to FSTN. G4-25953(A)P issued 1/25/2008 1. Permit Holder Name. In 2005, after Custom Agricultural Services Inc assigned portions of its permit to other parties, Ecology issued superseding Permit No. G425953(A)P on 7/21/2005 in the name of Columbia River Bank (security interest) and Custom Agricultural Services Inc. The permit issued in the amounts of 6388 gpm, 4133 October 11, 2011
Page 2 of 3
Timothy D. Reierson, PE
6604 Appleview Road Yakima WA 98908 Phone
509 965-7175 509 965-6995
FAX
af/yr for irrigation of 1150 acres. On 10/10/2005, Custom Ag and Columbia River Bank assigned a 325 acre portion of this permit to FSTN LLC. The 325 acre portion was later issued as its own superseding permit No. G4-25953(D)P on 1/25/2008. This left a remainder of 825 acres which was retained by Custom Ag and Columbia River Bank. On 1/25/2008 Ecology issued a superseding Permit G4-25953(A)P to Custom Ag and Columbia River Bank in quantities of 6388 gpm, 4133 af/yr for irrigation of 1150 acres. This did not account for the 325 acre assignment to FSTN LLC. In other words, without a corresponding reduction to match with G4-25953(D)P. On 11/1/2010 Custom Ag filed assignment removing Columbia River Bank from having any interest in G4-25953(A)P; leaving Custom Ag as sole permit holder. (Though the permit should have been for 825 acres, not the full 1150 acres; due to the split of 325 acres to G4-25953(D)P.) 2. Quantities. G4-25953(A)P should have issued for 4583 gpm, 2965 af/yr for irrigation of 825 acres (the balance remaining after 325 acre assignment that was filed on 10/10/2005). 3. Authorized Sources. Should have been the Custom Ag retained Well Sites as stated in the assignment. 4. Authorized Place of Use. Should have been the Custom Ag retained place of use as stated in the attachment to the assignment. As mentioned previously I intend to file a change in place of use on G4-25953(A)P for the portion owned by Custom Ag. I anticipate that the corrections to this superseding Permit can be made as part of that process, through the Benton County Water Conservancy Board. I hope this serves, at least, as a start on correcting the documents and ownership conveyances. Sincerely,
Tim Reierson copy to:
FSTN, LLC Custom Agricultural Services, Inc.
October 11, 2011
Page 3 of 3
Timothy D. Reierson, PE
6604 Appleview Road Yakima WA 98908 Phone FAX
509 965-7175 509 965-6995
October 21, 2011
Mr. Tom Perkow Department of Ecology 15 West Yakima Avenue, Ste 200 Yakima, WA 98902-3452 SUBJECT:
Permit G4-25953(A)P issued 1/25/2008, Custom Agricultural Services Inc Permit G4-24758P issued 2/12/2009, Thunderridge Farms Inc and Columbia River Bank
This letter makes a correction to my letter to you dated October 11, 2011. On page 2, Item No. 3 under heading "G4-24758P issued 2/12/2009" the reference to Columbia River Bank should be changed to Bay Bank. Bay Bank (a branch of The Cowlitz Bank) suffered the same fate as Columbia River Bank. According to the Federal Deposit Insurance Corporation website for The Cowlitz Bank, "On Friday, July 30, 2010, The Cowlitz Bank, Longview, WA, (Cowlitz Bank) including those branches operating under the name Bay Bank (a Division of The Cowlitz Bank), was closed by the Washington Department of Financial Institutions, and the Federal Deposit Insurance Corporation (FDIC) was named Receiver." Heritage Bank purchased The Cowlitz Bank from the FDIC. Steve West informs me that their plan is to pay off the mortgage held by Heritage Bank in approximately 60 days. By this action he intends to make any questions about assignment of security interests moot. Sincerely,
Tim Reierson copy to:
FSTN, LLC Custom Agricultural Services, Inc.
Attachment F Most Current Superseding Permit for No. G4-24758P Issued February 12, 2009
Permitted Well Site Location Summary Well Sites Retained by Custom Ag (Not Assigned to Others) are: Permit Well Site Nos. 1, 2, 3, 7 and 8. (Sites 2 and 3 are constructed and permitted). FOR REFERENCE: Current Permit Allowed Well Locations, within T. 7 N., R. 25 E.W.M.: APPROXIMATE LOCATION OF DIVERSION--WITHDRAWAL 1) 1,056 feet south and 50 feet east of the northwest corner of Section 35 2) 1,300 feet south and 50 feet west of the northeast corner of Section 35 [See Note 1] 3) 1,300 feet south and 200 feet east of the northwest corner of Section 25 [See Note 1] 4) 675 feet north and 10 feet west of the center of Section 23 (Assigned to others). 5) 100 feet north and 100 feet west of the east quarter corner of Section 23 (Assigned to others). 6) 100 feet north and 100 feet west of the east quarter corner of Section 24 (Assigned to others). 7) 100 feet north and 100 feet west of the east quarter corner of Section 26 [not constructed] 8) 100 feet north and 100 feet west of the east quarter corner of Section 25 [not constructed] LOCATED WITHIN (SMALLEST LEGAL SUBDIVISION) 1) NW1/4NW1/4 Section 35 2) NE1/4NE1/4 Section 35 3) NW1/4NW1/4 Section 25 4) SE1/4NW1/4 Section 23 (Assigned to others). 5) SE1/4NE1/4 Section 23 (Assigned to others). 6) SE1/4NE1/4 Section 24 (Assigned to others). 7) SE1/4NE1/4 Section 26 8) SE1/4NE1/4 Section 25 Note 1: The as-built location of Wells 2 and 3 are better described as: 2) 100 feet S and 200 feet W of NE corner of Section 35; 3) 200 feet S and 200 feet E of NW corner of Section 25.
Attachment G Permit Well Site Location Summary
Place of Use Retained by Custom Ag (Current Permitted Place of Use): All within T. 7 N., R. 25 E.W.M. That portion of the SE1/4 of Section 23 lying southerly of a curved line, having a radius of 988.54 feet, the radius point of which is described as follows: Beginning at the SE corner of Section 23; thence N 36˚26’09” W 3399.57 feet to the described radius point. That portion of the NE1/4 Section 24 lying southerly of a curved line, having a radius of 1020.00 feet, the radius point of which is described as follows: Beginning at the SE corner of Section 23, T. 7 N., R. 25 E.W.M.; thence N 36˚09’10” E 4023.17 feet to the described radius point. [See Note 1]. SW1/4 Section 24; NE1/4 Section 26; Section 25; NE1/4 Section 34; Section 35. BENTON COUNTY PARCEL NUMBERS: 1-2375-400-0001-000, 1-2475-300-0000-001, 1-2475-100-0000-002, 1-2475-400-0000-000, 1-2675-100-0000-000, 1-2575-000-0000-000, 1-3475-100-0000-000, 1-3575-100-0000-000, 1-3575-200-0000-000.
Place of Use Planned to be Added to Above: SE1/4 Sec. 24, T. 7 N., R. 25 E.W.M. That portion of the NW1/4 Section 24 lying southerly of a curved line, having a radius of 1020.00 feet, the radius point of which is described as follows: Beginning at the SE corner of Section 23, T. 7 N., R. 25 E.W.M.; thence N 36˚09’10” E 4023.17 feet to the described radius point. [See Note 1]. BENTON COUNTY PARCEL NUMBERS: 1-2475-400-0000-000, 1-2475-300-0000-001-PTN,
Place of Use Planned to be Removed: [AIR STRIP PARCEL LEGAL DESCRIPTION WOULD BE INSERTED HERE, CURRENT OWNER: ASAP Flying Service, Inc.; 29.16 acres within Sec. 35] BENTON COUNTY PARCEL NUMBER: 1-3575-200-0000-000.
NOTE 1. Both of these paragraphs can be consolidated into one as follows: "That portion of the N1/2 Section 24 lying southerly of a curved line, having a radius of 1020.00 feet, the radius point of which is described as follows: Beginning at the SE corner of Section 23, T. 7 N., R. 25 E.W.M.; thence N 36˚09’10” E 4023.17 feet to the described radius point."
Attachment H Current and Planned Place of Use Descriptions
