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~ SPECIAL SECTION ~ Methow Valley News ESA: born with
little debate, Protecting most things great and small Researched, reported and edited The Endangered Species Act of 1973 was
passed at a time when the country was entangled in an
unpopular Vietnam war. Double-digit interest rates, long gas lines and flawed wage and price controls made up an unbalanced economic equation. Russell Means led the American Indian Movement in an FBI standoff at Wounded Knee and the Supreme Court loosened restrictions on abortion. In all of this, the environmental movement crafted its Magna Carta. Rachel Carson had set the stage a decade before with "Silent Spring," a literary warning of impending biological apocalypse emerging from dangerous pesticides and indiscriminate pollution. A receptive Congress and pre-occupied executive branch cleared the way with an unusual spirit of of harmony. This was legislation that made the country feel good about something when conflict dominated the daily headlines. And the country began the road to identify and save all wild things endangered—great and small, noble and mundane. More than two and a half decades since its passage, the ESA can point to some notable successes—perhaps most prominent being the continuing recovery of the bald eagle. Since the rare snail darter nearly stopped construction of a major Tennessee dam, the act has also delayed or blocked many other public and private projects. And the listing of species is far out-pacing removal of those already listed. The law in the past decade has faced, and so far withstood, repeated attempts to soften what critics say are its inflexible and unrealistic provisions. Yet it’s this same "absolutist" fidelity to any threatened or endangered species that supporters defend so determinedly. In the debate over the ESA, there seldom appears to be a middle ground. It’s love it or hate it. And live with it, because the polls show the act enjoys great national popularity--especially in less affected urban centers. Now the impacts of the ESA prove to substantially control, if not permanently change, the lifestyles and economy of the Methow Valley. Already part of the Valley has lost an irrigation season and had the operation of its largest employer threatened. Now stream fishing will be mostly banned indefinitely beginning next year. This special section of the Methow Valley News examines the early history of species protection in America through passage of the ESA. A future issue will explore the criteria and procedures. Effort to save species dates to 1870s concern for buffalo Today most people think of the Endangered Species Act as the beginning of federal efforts to prevent eradication of wildlife. But the federal government considered measures to preserve species as early as the 1870s. One early attempt was national legislation in 1874 that would have outlawed buffalo slaughter in the territories, but which died through a pocket veto by President Grant. In 1894, Congress passed legislation outlawing buffalo hunting in Yellowstone National Park. Through the late 19th century, however, most wildlife legislation was at the state level, intended to protect hunting interests. And the Supreme Court upheld state powers over wildlife in an 1896 decision, Geer v. Connecticut. In 1900, with the Lacey Act, Congress passed the first significant legislation to protect species that had been killed in violation of state laws and transported across state lines. President Roosevelt in 1903 established the nation’s first wildlife refuge on Florida’s Pelican Island. When the last known carrier pigeon died in a Cincinnati zoo in 1914, the country responded by signing, with Canada, the Migratory Bird Treaty of 1916, which was ratified two years later as the Migratory Bird Treaty Act. Although challenged by the state of Missouri, the act was upheld by the Supreme Court which rejected the "state ownership doctrine" that Missouri argued gave the states sole authority to regulate wildlife. In 1934, in the New Deal era, Congress passed the Fish and Wildlife Coordination Act. It established voluntary measures that encouraged federal agencies to consider the connection between habitat and health of wildlife in dam-building and pollution-generating activities. An important provision of the act resulted in espansion of national forests, wildlife refuges and national parks. In 1940, Congress acted to protect the nation’s symbol with passage of the Bald Eagle Protection Act. Interest in ecology and wildlife management heightened with publication, in 1949, of Aldo Leopold’s A Sand County Almanac. But it was Rachel Carson’s Silent Spring, released in 1962, that is widely considered the driving force of the environmental movement, with its focus on the threat of pesticides to the health of wildlife and humans. Following Carson’s book, the movement to provide legislative protection for species gained momentum. In 1964 Congress created the National Wilderness Preservation System, and the Bureau of Sport Fisheries and Wildlife, now the US Fish and Wildlife Service, formed a committee on rare and endangered species that published a "redbook" including 63 species. The forerunner of today’s ESA was passed in 1966, with the Endangered Species Preservation Act. The language was moderate, requiring several federal agencies to protect threatened species, "insofar as is practicable and consistent" with their mission. The legislation applied only to vertebrates and merely encouraged voluntary ccooperation with other federal departments. It did, however, create the National Wildlife Refuge System. Within the refuges, wildlife could not be "taken" without a permit. With the 1966 act, however, a legislative trend was emerging, paving the way for the 1969 Endangered Species Conservation Act that recognized the international threat to wildlife. The Wild Free-Roaming Horses and Burros Act was passed in 1971, and the Marine Mammal Protection Act in 1972, followed by an international convention that addressed import-export controls for endangered species. When President Nixon threw his then crisis-plagued administration behind species protection by calling for stiffer legislation, Congress had many willing supporters. Although a 1972 bill failed, the stage was set for the landmark legislation of 1973. Although the question of state authority to manage wildlife was debated, most other parts of the proposed bill drew little discussion or opposition. A Senate bill passed by 92-0 the House version by 390-12, with proposals then heading to a conference committee where the only significant topic was the administrative balance between Interior and Commerce. There was, however, a major difference in the Senate and House bills—at the time of little concern but one that today has proven to have dramatic and significant impact: under Section 9, the Senate bill viewed "take" as any action that would harm a species, but the House bill would only prohibit actually injuring or killing a species. On Dec. 19, 1973, the Senate approved the conference report unanimously and the next day the House agreed 345-4, with 73 not voting. Nixon signed the legislation Dec. 28. It took a few years, but many of the Congressmen who voted for the legislation would later view their decision as having unintended consequences. Congress, the Nixon administration and the public all seemed to be focused on the ESA’s protection of, what one observer called "charismatic megafauna"—such as eagles, wolves and bears and other vertebrates, much like those headlining a Marlin Perkins’ "Wild Kingdom" television show of the era. The fact that ESA would protect insects, plants, and obscure wildlife was mostly overlooked. But in 1975, the Fish and Wildlife Service listed the tiny snail darter. The three-inch perch was little known, and viewed as neither a sport nor food fish. In 1978, with the Supreme Court’s decision in Tennesse Valley Authority v. Hill, the power of ESA in the judicial arena was confirmed. In delaying construction of a major hydroelectric dam, the court’s decision also strictly defined the requirements of Section 7 "consultations." among federal agencies. The case arose when a conservation group sued to stop the Tellico dam on the little Tennessee River. The TVA, a federal agency, argued that it had consulted with the Department of Interior under Section 7. TVA maintained it could make the decision to proceed with the dam, even though the consultation concluded the snail darter would be "jeopardized" under the act. The snail darter decision resulted in an amendment, in 1978, forming the so-called "God squad," actually the Endangered Species Committee, that bestowed the power to grant exemptions of federal projects under ESA if economic benefits were deemed greater than the need to protect a species. The committee could have exempted Tellico by a five to seven vote, but it surprised Congress by deciding the dam didn’t make economic sense. It took separate legislation, a rider to another bill, to get the dam built. Soon after ESA was passed, some Congressmen also began to realize that the broad scope of species protected by the act could affect the use of land and, therefore, its economic value under Section 9 prohibitions applying to "take" of a listed animal, insect or plant on private property. Today a desert sand fly in California has become one of the latest examples of the power of the ESA to protect a virtually unlimited range of living things. Opposition to the ESA has periodically sprung up in Congress during the 1990s, and some lawmakers have attempted to block re-authorization of the act. But most political analysts say the ESA remains highly popular, especially in urban areas where species listings infrequently raise critical economic issues. The Puget Sound area is one of the few urban regions in the country having to balance economics and species protection. But far away from the coast in the Methow Valley, issues of both Section 7 and Section 9 of the ESA loom over an already delicate economy. The Forest Service’s decision not to allow irrigation diversions on federal land has already had a significant impact on the local economy. And a cloud remains on the horizon for the next growing season, as Section 9 requirements for private irrigators are being developed. The Methow now has two fish, spring-run Chinook and steelhead trout, listed as endangered and the bull trout as threatened. The west slope Cutthroat could be listed anytime. And an environmental group has petitioned for listing the sage grouse, although initially the US Fish and Wildlife Service says the impact will be more in Douglas County. The growth of listings exponentially eclipses de-listings that have resutled from species that have recovered. ESA's power rests in a few key sections As with most legislation, the Endangered Species Act contains much boilerplate and stilted, often redundant language. But provisions having the most critical impacts are found in few key sections that are open to widely differing interpretations. They outline what must be done by government and the private sector when a species listings is made--and the potentially heavy penalties for violoations. Some of the most debated provisions involve what constitutes "best scientific and commercial data" used for decisons to list a species and chart its continued protection and recovery. This is an brief overview of ESA provisions that have been most discussed and have the greatest potential impact in the Methow Valley. The responsibility for making listings decisions falls with the Secretary of Commerce or Interior, whichever cabinet level department has agencies with plant and wildlife missions. Under Commerce, the key agency is the National Marine Fisheries Service, what might be called a sub-agency of the National Oceanic and Atmospheric Agency (NOAA). US Fish and Wildlife Service, the other key government agency, is part of the Department of Interior. Section 3 of the ESA affords protection for all endangered and threatened species, "other than a species of the Class Insecta determined ..... to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man." Section 3 also defines "critical habitat" as the, "specific areas within the geographical area occupied by the species, at the time it is listed".. "specific areas outside the geographical area occupied by the species"... "(that are determined) essential for the conservation of the species," and, "(areas) for which no critical habitat has heretofore been established." Although broad in scope, Section 3 does provide that, "Except in those circumstances determined by the Secretary critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.." In practice, the interpretation of habitat is left largely at the agency rather than cabinet level, leaving "the Services," as they’re known, with substantial power to make decisions. Those decisions that result in listings must be made, "solely on the basis of the best scientific and commercial data available." Besides Section 3, the sections most often cited in ESA discussions and media coverage include: Section 4 stipulates that listing decisions be made, "solely on the basis of the best scientific and commercial data available to (the cabinet level officials) after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.." Section 4(b) provides that an agency can designate "critical habitat, and make revisions thereto...on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact..." But the law allows for exclusion of, "any area from critical habitat if (the secretary of the cabinet department) determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned." In the Methow Valley and elsewhere in the upper Columbia Basin, there are arguments that the, "best scientific and commercial data available," has not been developed to support either listing of the species or designation of critical habitat. Section 4(d) applies to threatened, rather than endangered species, and requires issues regulations deemed, "necessary and advisable to provide for the conservation of such species." Section 7 requirements resulted in a lost irrigation season for many Methow Valley irrigators who divert on Forest Service land, and in effect served notice of things to come with ESA enforcement. Section 7 requires that federal agencies "in consultation with" the listing agency "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species ... after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption.... In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available." Section 9 defines the responsibilities and jurisdictions of ESA for "private persons," making it unlawful for landowners to "take" threatened or endangered species. Section 10 provides a remedy for allowing the, "take" of a listed species with a permit, know as an "incidental take permit." This is an important issue in the memorandum of agreement for the Methow Valley, in that National Marine Fisheries Service will not issue an "incidental take permit" until certain criteria, such as target stream flows, yet to be set, are achieved. A permit to take listed species cannot be issued, "unless the applicant therefor submits...a conservation plan that specifies..the impact which will likely result...steps the applicant will take to minimize and mitigate (them)..funding that will be available..(and) what alternatives actions to such taking the applicant considered.." NMFS has agreed "habitat conservation plan," is the best way to protect landowners and government agencies against ESA litigation. However, the agency has said it will not issue a permit for "incidental take" until the plan is completed after several years. Section 11 is the penalties and enforcement section of ESA. It describes penalities of as much as $25,000 for civil infractions to $50,000 in criminal cases and possible jail terms of a year. This section that authorizes "citizen suits," in which private parties may file suit, with 60 days notice, to force compliance with ESA. The broad nature of this provision has prompted some observers to call it the "hammer" of the legislation. Following is the document designated as a "preliminary final draft" agreement on endangered fish and water issues to be presented for public comment at the scheduled Nov. 17 meeting in the Methow Valley Community Center. MEMORANDUM OF AGREEMENT For actions to recover fish species in the Methow Valley A preliminary final draft for public comment, Dated: November 1999 Between National Marine Fisheries Service, U.S. Fish and Wildlife Service, State of Washington, and Okanogan County In Consultation with the Governor’s Salmon Recovery Office For Development of a Methow River Basin Habitat Conservation Plan and Implementation of Interim Conservation Measures November 4, 1999 1. RECITAL OF PURPOSE 1.1 WHEREAS, the Methow River Basin provides habitat for several native salmonids and is included within the Upper Columbia River Evolutionarily Significant Unit (ESU) for Chinook salmon and steelhead trout, both of which are listed as endangered species under the Endangered Species Act (ESA), and the Methow River Basin is included within the Columbia Basin Distinct Population Segment (DPS) for bull trout1, which is listed as a threatened species under the ESA, and the Methow River Basin provides habitat for other native fish species that are candidates for listing under the ESA; and 1.2 WHEREAS, the ESA and its implementing regulations prohibit the "take" of endangered and some threatened species and define "take" to include activities that harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct, and which also includes significant habitat modification or degradation when it impairs essential behavioral patterns, including breeding, feeding, or sheltering, leading to the actual death or injury of endangered species; and 1.3 WHEREAS, water use resulting in unnaturally low stream flows, fish passage barriers, and mortality from improper diversion structures are among the factors for decline of ESA-listed salmonids and may constitute "take" under the ESA; and 1.4 WHEREAS, the prohibition against "take" may be enforced through civil and criminal penalties outlined in the ESA as well as through legal actions brought by any citizen; and 1.5 WHEREAS, the ESA provides that "take" of listed species may be permitted through an "incidental-take permit" issued by the National Marine Fisheries Service (NMFS) or the U.S. Fish and Wildlife Service (FWS) (collectively the "Services") when the "take" is incidental to an otherwise lawful, non-federal activity and, among other things, will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and 1.6 WHEREAS, before any "take" associated with non-federal activities may be permitted for a species listed as endangered or threatened, a habitat conservation plan (HCP) must be developed that, among other things, specifies steps to minimize and mitigate the take to the maximum extent practicable, identifies the funding available to implement those steps, and specifies alternative actions to such taking together with the reasons why such actions are not being utilized; and 1.7 WHEREAS, adequate stream flows for fish will be a major component of any HCP related to water diversion and withdrawal facilities; and 1.8 WHEREAS, commitment by water users to participate in a water conservation and management program is necessary to conserve and enhance adequate stream flows for fish so that any "take" meets the statutory test for issuance of an incidental-take permit by not appreciably reducing the likelihood of the survival and recovery of salmonids in the wild; and 1.9 WHEREAS, the State of Washington and Okanogan County are willing to develop and implement an acceptable HCP for water diversion and withdrawal facilities and operations in the Methow River Basin; and 1.10 WHEREAS, development of an HCP together with the scientific analysis of its provisions, public review, approval process and issuance of an incidental-take permit is likely to take several years, during which the prohibition against "take" of ESA-listed salmonids remains in effect; and 1.11 WHEREAS, if those who divert or withdraw water undertake voluntary interim conservation measures while developing the HCP, ESA-related risks will be reduced; and 1.12 WHEREAS, the State of Washington and Okanogan County agree to demonstrate their commitment to develop and implement an HCP through implementation of interim conservation measures under a formal agreement to develop the HCP within specific time frames; and 1.13 WHEREAS, the NMFS, the FWS, the State of Washington and Okanogan County share the understanding that collaborative and volunteer efforts that achieve desired goals may reduce or eliminate the amount and significance of regulatory and enforcement measures to be taken by state and federal governments; and 1.14 WHEREAS, the Parties to this Agreement are expressing their commitment to contribute to the long-term survival and recovery of fish listed as endangered or threatened under the ESA and will maintain that commitment to ensure that appropriate conservation benefits are maintained should drought conditions make the specific measures of this Agreement impossible to implement; THEREFORE, THIS MEMORANDUM OF AGREEMENT among the National Marine Fisheries Service (NMFS), the United States Fish and Wildlife Service (FWS), the State of Washington - including the Washington Department of Ecology (Ecology) and the Washington Department of Fish and Wildlife (WDFW) - and Okanogan County (County), collectively known as the Parties, establish commitments among the Parties to: · Develop an HCP that at a minimum ensures that water diversions and withdrawals from the Methow River Basin do not significantly reduce the likelihood of the survival and recovery of salmonids listed under the ESA; and · Implement interim conservation measures that reduce the risk to the fishery resource from water diversions or withdrawals; and · Recognize regulatory and enforcement measures that may be implemented should schedules and commitments under this Agreement not be met. 2. SCOPE 2.1 Geographic Scope The geographic scope of this Agreement and HCP will be limited to the Methow River Basin, known under Washington State’s stream identification system as Water Resource Inventory Area (WRIA) Number 48. 2.2 Activities Covered Activities covered by the Agreement, the anticipated HCP and the resulting incidental-take permit will be, at a minimum, (1) the otherwise legal surface diversion and conveyance of water from all lakes, rivers and streams that are or contribute to salmonid-bearing waters of the Basin, (2) the otherwise legal withdrawals of ground water from any source in hydraulic continuity with salmonid-bearing waters of the Basin, (3) operation of adult and juvenile salmonid passage facilities associated with water diversion structures or impoundments, (4) operation of fish screens associated with water diversion structures or impoundments, and (5) the actions by Ecology, WDFW and Okanogan County specifically for the purpose of implementing this Agreement or the anticipated HCP. 2.3 Species Covered Incidental-take permit species would include, at a minimum, Columbia Basin bull trout (Salvelinus confluentus), the Upper Columbia ESU for Chinook salmon (Oncorhynchus tshawytscha), and the Upper Columbia ESU for steelhead (O. mykiss). The HCP would also address westslope cutthroat trout O. clarkii), an unlisted fish native to the Methow River Basin. 3. NMFS and FWS ASSURANCES 3.1 Incidental-take Permit In light of their decision to pursue an HCP covering lawful diversions of water together with the associated operation of lawful water diversion and withdrawal facilities and in light of commitments to implement conservation and regulatory measures, the State of Washington and Okanogan County seek assurance from NMFS and FWS that operators of otherwise lawful water diversion or withdrawal facilities in the Basin will not be subject to enforcement actions under the ESA for taking listed salmon resulting from activities described in Section 2.2. NMFS and FWS fully support the decision to prepare and implement an HCP, with the objective of issuing an incidental-take permit as soon as an acceptable HCP is completed. Issuance of such a permit is the means provided in the ESA for obtaining assurance that incidental-take of listed species will not give rise to liability for violation of the take prohibition in section 9 of the ESA. Prior to issuance of a permit, NMFS and FWS does not provide such assurances. 3.2 Enforcement It is the policy of NMFS and FWS to investigate and take appropriate enforcement action with respect to alleged violations of the ESA. While section 9 enforcement is not the preferred course of NMFS and FWS in this instance, if the operations of irrigation facilities result in take of listed salmonids, the federal agencies will investigate and document the apparent violation. However, the agencies may exercise their enforcement discretion to refrain from prosecution if sufficient progress is being made in developing an HCP that provides adequate flows for fish, barrier-free passage, and upgrades to current standards of fish screens within a time frame that minimizes take of listed salmonids to the maximum extent practicable. 3.3 Scope of Federal Assurances The federal assurances offered under this Agreement shall only be available provided that there is "Sufficient Progress" in achieving the terms, goals and commitments of this Agreement. The standards for Sufficient Progress are set forth in Section 8.2 of this Agreement. Provided that there is Sufficient Progress, the federal assurances shall be extended to any water user who enrolls in, enters into a water use limiting agreement, or develops and implements an Individual Conservation Plan under the Voluntary Conservation Program established pursuant to Section 6.1 of this Agreement. 4. WASHINGTON STATE ASSURANCES 4.1 Enforcement Actions Consistent with its authority under RCW 90.03.360 and 90.44.050-250, Ecology commits to gathering information and initiating assessments of water rights in the Methow Basin to determine consistency of water use with existing water rights and laws. Ecology has the authority to bring enforcement actions against wasteful or unauthorized water use. Such enforcement actions are generally subsequent to an assessment of water use. Consistent with its enforcement discretion, Ecology will prioritize enforcement actions in the Methow Basin. In prioritizing enforcement actions, Ecology will take into consideration whether a water user has agreed to participate in the Voluntary Conservation Program and the water user is actively developing and implementing a water conservation plan consistent with the Voluntary Conservation Program. 4.2 Withdrawal of Waters from Appropriation Provided that Sufficient Progress is being achieved under this Agreement, Ecology will not propose a rule (under RCW 90.54.050(2)) to withdraw waters from further appropriation in any of the seven (7) stream management units of the Methow River basin (as described in WAC 173-548–020), except that those waters withdrawn prior to effective date of this Agreement shall remain withdrawn until Ecology has sufficient information to reinstate those waters for appropriation. Ecology will propose a rule to withdraw any or all of the seven stream management units from further appropriation within 30 days of a determination that Sufficient Progress under this Agreement has not been made for two years in sequence. 4.3 Petition for Adjudication Consistent with RCW 90.03.110 and RCW 90.44.220, Ecology has the authority to petition for a general stream and groundwater adjudication of the Methow Basin. Provided that Sufficient Progress, consistent with the standards set forth in section 8.2, is being achieved under this Agreement, Ecology will refrain from filing a petition for adjudication. This will provide the Methow Basin WRIA planning unit the opportunity to complete a watershed plan under RCW 90.82 and the Parties time to complete a Habitat Conservation Plan for the Methow Basin. Ecology will immediately initiate necessary investigations and procedures for filing a general stream and groundwater adjudication petition under Chapter 90.03 RCW upon a determination that Sufficient Progress under this Agreement has not been made for two years in sequence. Upon such a determination, Ecology will petition for a general stream and groundwater adjudication after June 15, 2003, unless otherwise prescribed in an approved Habitat Conservation Plan. If a petition for general stream and groundwater adjudication is filed, all information developed for the Voluntary Conservation Program will be provided to the court to assist the enrollees in substantiating their water rights and claims. 4.4 No Impairment of Existing Water Rights To promote the support and confidence of water users and the public in this Agreement, Ecology affirms its duty to vigorously represent the sovereign interests of the state with respect to water resources, consistent with RCW 90.54.080. Ecology further affirms the statutory limitations on its authority over water resources, which require that nothing in this Agreement operate to impair or diminish any valid existing water right. 5. AUTHORITIES AND STRUCTURE 5.1 Commitments in this Agreement Each Party asserts the authority to make the relevant commitments and to implement the appropriate measures called for in this Agreement. 5.2 MOA Implementation Committee The NMFS, FWS, Ecology, WDFW, County, and Governor’s Salmon Recovery Office (GSRO) shall comprise an MOA Implementation Committee (the "Implementation Committee"), consisting of one representative from each entity to oversee implementation of this Agreement and the development of the HCP. The Implementation Committee will be accountable for ensuring that all aspects of the agreement are carried out and shall be chaired by the Director of the Department of Ecology or his/her designee. 5.3 Integration with Washington State’s Watershed Planning Law and Activities Ecology is authorized and directed by statute to work with local governments and through WRIA planning units to analyze the condition of water resources in a given basin and to develop actions to improve the management and conservation of water resources. [RCW 90.42.005, 90.44.250, 90.44.400, 90.54.010, Ch. 90.82.] Ecology and the WRIA planning units are also authorized to address water quality management, instream flows, and habitat protection in conjunction with water resource planning. Ecology and the County, as the lead agency, have entered into a separate agreement for the creation, funding, and implementation of a WRIA planning unit (Planning Unit) covering the Methow Basin. As an initiating government and lead agency, the County is responsible for working with the State and stakeholders to develop and manage the water resource planning process for the Methow Basin. The Planning Unit has commenced a comprehensive review of the condition of water resources in the Methow Basin that is intended to lead to recommendations for future management of water resources. The Parties recognize that the time frames and scope of work for Planning Unit activities could be, but are not required to be, consistent with the requirements of the ESA and integrated with the tasks outlined in this Agreement. The Parties support the integration of the work of the Planning Unit with the timeframes and other commitments within this Agreement and encourage the Planning Unit to respond accordingly. The Planning Unit is not obligated to participate in activities pursuant to this agreement or the development of an HCP or any aspect of developing an HCP. 5.4 Technical Advisory Group At least one formal Technical Advisory Group (TAG) will be established by the Implementation Committee to advise the Implementation Committee and, if requested, provide technical assistance to the Planning Unit. The Implementation Committee may establish additional TAGs as appropriate. The responsibilities and work assignment of each TAG will be defined solely by the Implementation Committee and shall be limited to advising the Implementation Committee on actions required for the implementation of this Agreement. Each TAG shall be composed of representatives selected by the Implementation Committee, and each member of the Implementation Committee is entitled to a representative on any TAG. It is the intent of the Implementation Committee to ensure that TAGs are responsive to the needs and appropriate requests of the Planning Unit should the Planning Unit seek the assistance of a TAG. It is further the intent of the Implementation Committee to afford the Planning Unit the opportunity to influence activities under this agreement if the Planning Unit so desires. The Planning Unit may designate a representative to participate in any TAG meeting as a liaison, to express the views and interests of the Planning Unit to the TAG. 5.5 Coordinating the Work of the TAG(s) and Planning Unit Any TAG reports to the Implementation Committee. Any TAG may also include representatives of state agencies that have statutory responsibilities to provide technical assistance to the Planning Unit under RCW 90.82. Accordingly, TAGs will be used to fulfill the statutory obligation of Ecology and WDFW to provide technical assistance in water resource planning to the Planning Unit for the instream flow and water quantity elements when the Planning Unit requests such assistance in developing the watershed plan. Several tasks are common to the development of a watershed plan and an HCP. It is the intent of the Parties that duplication of work between the watershed plan and HCP be minimized. To that end, it is the intent of the State and County, as sponsors of the HCP, to provide the Planning Unit an opportunity to perform the following tasks at their discretion: a) Baseline analysis of the condition, availability, and use of ground water and surface water. b) Development of interim and final standards and strategies to conserve water resources and achieve instream flow and other habitat improvement components within the scope of a watershed plan. These strategies and standards may be recommended to Ecology and the County as conservation measures to minimize and mitigate the effects of water resource use on salmonids in the Habitat Conservation Plan. c) Development of a watershed water resource model that may be used for monitoring and adaptive management under a watershed plan or HCP. The sponsors of the HCP may supplement the work of the Planning Unit or conduct a task that the Planning Unit is unable to complete on a schedule or level of quality necessary for the HCP 5.4.3 Promoting Maximum Local Participation and Support To promote the fullest possible participation by the County and the Planning Unit in TAG meetings, such meetings will be held, to the maximum extent practicable, in Okanogan County. Participation by TAG members by telephone conference shall be available for all meetings of the TAG outside Okanogan County. 5.5 TAG Records All data collected by a TAG shall be maintained as a public record unless otherwise exempted from public disclosure under the laws of the United States or the State of Washington. All written recommendations of any TAG shall be made available to the public, upon request. Public comments on the TAG’s recommendations may be submitted in writing and shall be maintained in the public record. The record shall be maintained by Ecology. 5.6 Limitations of the Role of the TAGs The Implementation Committee will not direct any TAG to provide recommendations on biological opinions or enforcement actions under the ESA or recommendations to Ecology or WDFW on the exercise of their enforcement discretion under the laws of the State of Washington. Personnel on the TAG may be engaged in these activities as part of other duties assigned by their respective agencies. 6. INTERIM CONSERVATION, RESTORATION AND ENFORCEMENT MEASURES 6.1 Voluntary Conservation Program (VCP) 6.1.1 General Description This Agreement outlines the intent of the Parties to establish a long-term water management strategy in an HCP that will, among other things, conserve and enhance instream flows essential for fish. A Voluntary Conservation Program is a cornerstone of the long-term water management strategy. Such a program can achieve conservation and enhancement of instream flows by the voluntary commitment of each participating water user to maintain water use consistent with efficient practices and to guarantee contribution of a scientifically credible "Proportionate Share" to instream flows. This Proportionate Share will be based on the difference between existing and provisional instream flows for a given stream reach, section or tributary, season, and combination of existing water uses and will be designed to mitigate each water user’s relative effect on the water resource. Appropriate stream reaches, sections or tributaries will be determined by the Implementation Committee in consultation with the TAG. A water user who enrolls in the Conservation Program will be required to enter a water use limiting agreement to eliminate water-use when a particular stream segment does not achieve provisional instream flows, or to develop and implement an individual conservation plan and reduce water use by a Proportionate Share when a particular stream segment does not achieve provisional instream flows. The long-term water management regimen, instream flow requirements, and long-term Proportionate Share standards for the Methow River Basin will be developed by the Parties and reflected in an HCP envisioned to be completed and approved by June 2003. It is understood by the parties that, unless all proportionate shares are voluntarily contributed, a shortfall in long term stream-flow requirements may exist. The parties recognize that strategies that would compensate for this shortfall must be included in the HCP. In the meantime, provisional instream-flow standards and provisional Proportionate Shares will be used. Achieving provisional instream-flow standards will serve as the central goal and purpose of this MOU until the HCP is developed. However, provisional instream-flow standards will have no mandatory regulatory effect until at least June 2003, and thereafter will have only a mandatory regulatory effect on newly created junior water appropriations, if adopted by Ecology as amendments to the current instream-flow rules for the Methow Basin.2 6.1.2 Definition of Proportionate Share Proportionate Share will be based on the difference between existing flows and desired flows (provisional instream flows) for a given season and reach section, or tributary of a stream. The parties intend that the Implementation Committee establish provisional instream flows that are consistent with the requirements of the Endangered Species Act. The gap between desired and actual flows will be divided up fairly between all water users on the given stream segment. A water user who has completed and implemented an individual water conservation plan will be required to reduce water use by a Proportionate Share when a particular stream segment does not achieve desired instream flows. In the alternative, a water user enrolled in the Conservation Program may simply enter a water-use limiting agreement and eliminate all use when a particular stream segment does not achieve desired instream flows.3 The Parties understand that actions under this Agreement will provide an initial rough calculation of Proportionate Shares, which will be improved as more data are gathered pursuant to efforts under this Agreement. For example, the initial estimates of all water uses on a stream segment will be based on records currently maintained by Ecology plus information gathered from water users who enroll in the Voluntary Conservation Program. Initial estimates of desired stream flows will be provided by the Implementation Committee utilizing a TAG and existing hydrological and biological data and models for the Methow Basin. Initial estimates will be simple and conservative, but will be refined to reflect better science on the needs of native salmonids, the morphology of particular stream segments, hydrology of stream management units, and the dynamic nature of stream flows in the Methow Basin where there are large variations in flow within and among each water year. Estimates will be refined through flow monitoring and evaluation of conservation practices implemented pursuant to the terms of this Agreement.4 6.1.3 Voluntary Conservation Standards The Implementation Committee will establish Voluntary Conservation Standards that will be required to be applied by individual water users enrolled and implementing, in a timely manner, a Conservation Plan in the Voluntary Conservation Program. The Implementation Committee will consider recommendations from a TAG that will review NRCS Field Office Technical Guides and the Washington Irrigation Guide to determine their suitability for use and acceptability as conservation standards. The TAG will also review standards for conveyance loss if the existing guides prove to be inadequate and provide that information to the Implementation Committee. If the NRCS and Washington Guides require reconciliation in order to provide a single set of water use and conservation standards that would be employed by funding and technical assistance agencies, the Implementation Committee will resolve the differences. The Voluntary Conservation Standards will form the basis for Individual Conservation Plans prepared by participants in the program. 6.1.4 Water Use Limiting Agreement A water-use limiting agreement is a binding commitment made by a water user to the Department of Ecology to suspend withdrawal of water when notified by a representative of Ecology that stream flows are approaching provisional instream-flow levels. The form for a water-use limiting agreement will be provided by Ecology by April 2000. 6.1.5 Enrollment in the Voluntary Conservation Program (VCP) Any water user may enroll in the VCP by providing the following information to Ecology and the County: 1) a general description of the user’s water diversion or withdrawal system, including structures; 2) location, name, address, etc.; 3) existence of a water right or claim; 4) name, address, location, etc.; 5) acreage of agricultural irrigation, if any; 6) water delivery method; 7) water source; 8) volume of water for instantaneous use; 9) annual volume; 10) status of fish screen, if any; 11) a completed and signed water-use limiting agreement or individual conservation plan based on the Voluntary Conservation Standards; 12) map to the subject property; 13) photograph of diversion structures and/or pumps; 14) permission for Ecology and the County to enter the property to monitor implementation of the program. Ecology will assist a participant in the collection and development of this information, particularly the implementation plan. The Implementation Committee may remove any enrollee from the program for lack of performance. 6.1.6 VCP Schedule and Development Responsibilities a) By April 2000, the Implementation Committee will propose the first estimate of provisional instream flows. In establishing the provisional instream flows, the Implementation Committee may consider any recommendation made by the TAG. Prior to this date, the TAG will provide the Planning Unit with the first opportunity to review and comment and provide suggestions to the TAG to help make provisional instream flows workable and acceptable at the local level. b) By April 2000, Ecology and the County will initiate the Voluntary Conservation Program . During the first year of the program, participants will fulfill reporting requirements, enter into a water-use limiting agreement where applicable, implement Voluntary Conservation Standards that do not require engineering design, construction financing, or permitting, and develop Individual Conservation Plans that describe long-term measures that may be implemented to achieve conservation objectives. c) By November 2000, the Implementation Committee, with the assistance of the TAG, will: (1) make any adjustments to the provisional instream flows, (2) estimate the instream flow deficiency by stream reach and season in an average water year, and (3) develop a First Estimate of the Proportionate Share for a water user by affected stream reach, season, level of water use, and nature of water use. d) During the 2001 irrigation season, water users participating in the Voluntary Conservation Program will comply with their water-use limiting agreement or the First Estimate of Proportionate Share for their particular location, season, level, and type of use. Using the monitoring system described in Section 6.4, the Implementation Committee, with the assistance of the TAG, will determine whether water-use limiting agreements and Proportionate Share implementation produces the expected effect or benefit for provisional instream flows. In addition, participating water users will be interviewed to determine whether water conservation plans were effective in assisting water users to achieve Proportionate Share obligations, and to assess what conservation measures were more or less effective. e) By November 2001, the Implementation Committee, with the assistance of the TAG, will: (1) make any adjustments to the provisional instream flows, (2) revise the estimate of the instream flow deficiency by stream reach and season in an average water year, and (3) develop a Second Estimate of the Proportionate Share for a water user by affected stream reach, season, level of water use, and nature of water use. f) During the 2002 irrigation season, water users participating in the Voluntary Conservation Program will continue to comply with their water-use limiting agreements or comply with the Second Estimate of Proportionate Share for their particular location, season, level, and type of use. Using the monitoring system described in Section 6.4, the Implementation Committee with the assistance of the TAG will determine whether Proportionate Share implementation produces the expected proportionate effect or benefit for provisional instream flows. In addition, participating water users will be interviewed to determine whether water conservation plans were effective in assisting water users to achieve Proportionate Share obligations, and to assess what conservation measures were more or less effective. The sponsors of the HCP, the State and County will use the feedback gathered during the 2002 irrigation season will be used to make final adjustments to the draft HCP and Draft Environmental Impact Statement. g) The sponsors of the HCP anticipate that, under the approved HCP participating water users will be required to make a long-term commitment to contribute a Proportionate Share to instream flows. Participating water users will execute an enforceable Conservation Agreement with the Proportionate Share commitment and other mitigation commitments in exchange for a Certificate of Participation in an umbrella incidental-take permit. How Proportionate Share is achieved will be left to the discretion of the water user. Water users will have the option of contributing Proportionate Share directly or in conjunction with a change in use, change in location, or superior conservation benefit processed through the waterbank. The adaptive management process under the HCP will continue to monitor and refine Proportionate Share obligations within negotiated limits. h) Prior to establishing provisional flows or Proportionate Share estimates in 2000 and 2001 or finalizing the mitigation package for the HCP, the Implementation Committee will present draft recommendations to the Planning Unit. The Implementation Committee will consult with the Planning Unit and use the Planning Unit to the maximum extent practicable in the Public Scoping for the HCP and corresponding EIS and public involvement. 6.1.7 Other Aspects of the VCP a) Voluntary Nature of Water Conservation Plans and Proportionate Share Participating water users may withdraw from water use limiting agreements, implementation of Individual Conservation Plans or Proportionate Share under the Voluntary Conservation Program, but will lose federal and state assurances as a consequence. Participating water users who continue to develop, implement, and refine a water conservation plan may use it as the means to achieve Proportionate Share and other mitigation required under a finally approved HCP. Participation in the finally approved HCP is not mandatory, but assurances under this Agreement will discontinue upon approval of the HCP. b) Commitment to Process Temporary Trust Rights If the schedule for development of the HCP is beyond June 2004, Ecology will process temporary trust water rights for enrollees in the Voluntary Conservation Program to prevent any implication of relinquishment of conserved water. c) Non-participation Does Not Imply Violation of Law Consistent with the voluntary nature of the program, a decision by a water user to refrain from participating in the Voluntary Conservation Program will not be used to presume or imply that the water user is acting in violation of any state or federal law. d) Trust Water and Carry-forward Credit In the process of implementing water conservation plans under the Voluntary Conservation Program, participating water users may temporarily or permanently commit portions of their water rights to instream flow in the State’s Trust Water program. In a permanent commitment, the sponsors of the HCP anticipate that the water user will receive a guaranteed carry-forward credit toward Proportionate Share as it is finally determined in an approved HCP. Temporary commitments will be conditioned to return to the water user in the event the HCP is not completed. 6.2 Water Bank Establishment If the analysis of winter withdrawals described in Section 10.2.2 concludes that conversion of summer rights to year-round use is acceptable, Ecology will forward by April 2000 a draft water-bank rule to the Implementation Committee and the Planning Unit for review. The draft rule will include one or more proposals for water right "conversion requirements" (i.e., the amount of a summer water right that will need to remain in the bank for fish and future water uses, and the amount of the water right that could be used at other times during the year). The Implementation Committee will determine, by June 2000, whether the water bank conversion requirements can be proposed prior to establishment of the First Estimate of Proportionate Shares (due Fall 2000). If the Implementation Committee determines that conversion requirements can be established prior to defining proportionate shares, the Implementation Committee will recommend appropriate conversion requirements to Ecology. Ecology will then proceed to propose a rule on the following schedule: July 2000 – Ecology will convene a public workshop on the draft water-bank rule. August 2000 – Ecology will propose a formal water bank-rule based on feedback from the Implementation Committee, the Planning Unit, and public workshop comments. September 2000 – Ecology will hold formal public hearings on the proposal. November 2000 – Ecology will adopt a final water-bank rule. 6.3 Trust Water Purchases Ecology has been appropriated $1 million for the purpose of purchasing water rights and placing them in trust to increase instream flows statewide. Ecology will reserve no less than $150,000 from this fund for water purchases in the Methow Basin, consistent with the goals of this Agreement. Ecology will limit expenditure of these funds only to transactions with willing sellers who have developed and implemented an individual conservation plan and contributed their proportionate share pursuant to the VCP. If sufficient progress under this agreement is not made for two years in a row, Ecology shall make available an additional $200,000 of these funds for purchase of water rights under the same terms as the first $150,000. 6.4 Stream Flow Measurement By March 2000, the Implementation Committee with the assistance of the TAG will develop a stream-flow monitoring program to enable the parties to monitor and measure progress in achieving biological goals and objectives and to determine feasible and practicable mitigation standards for participants in the HCP. The Implementation Committee anticipates that a minimum of eight (8) additional stream gauges are installed in the Methow Basin prior to June 1, 2000. 6.5 Compliance Monitoring Ecology and the County will monitor implementation and compliance with the water conservation program by each participant annually and report to the Implementation Committee by September of each year. 6.6 Water Use Monitoring Ecology will assure that water meters are installed and used on 95 percent of the surface-water users (by volume of water used) by June 2001. The Implementation Committee will assess the status of water use monitoring after June 2001. If additional monitoring is needed to determine whether provisional instream flows are being met, the Implementation Committee will establish a new commitment. 6.7 Assessment of Reasonable Use Ecology agrees to commit at least one full-time-equivalent professional to water use assessments and compliance. The purpose of the water use assessments will be to identify instances of unauthorized use, wasteful use, or non-use and abandonment of water rights per 90.03 and 90.44 and to initiate compliance actions when appropriate. The number of current water use violations in the Methow watershed is unknown; therefore, Ecology cannot commit to completing a specific number of compliance actions. Field work associated with the Voluntary Conservation Program and water use assessments will be initiated by April 2000. Ecology agrees to commit at least one additional full-time-equivalent professional to implementation of the Voluntary Conservation Program. Responsibilities would include water use assessments relevant to implementation of the Voluntary Conservation Program. 6.8 Screening of Diversions WDFW, with assistance from the County, commits to apply to the Salmon Recovery Funding Board (SRFB) for funding necessary to install fish screens on the diversions listed in Table 2. Funding will be supported by Ecology and WDFW only if the beneficiary is a participant in the voluntary water conservation program (See Section 8.1.2). To the extent that funding becomes available, WDFW commits to install the fish screens. Where consistent with other obligations, and to the extent that SRFB applications have not been successful, WDFW commits to using existing fund sources to screen the diversions listed in Table 2, below. Project Time Funding needed Larson Ditch (Libby Cr.) Done 99 None Beaver Creek FY 00 $100Kcap. (+$50K Joint diversion and other covered) small startup projects 4 DOT crossings (DOT project lead Buttermilk Cr. FY 99 $9K cap +$15K water users +14K NMFS Twisp Power (Twisp R.) FY 99 & 00 $90K cap + $40K NMFS Fulton (Chewuch R.) (Land- FY 99 & 00 $100K cap +$50K owner access problems NMFS recently disclosed, likely will be delayed--J.E.) Skyline (Chewuch R.) Early Done by CY $3K water users action Replacement 99 BN 99/01 (+$1K covered) $100K cap (+51K covered) Twisp Airey (Twisp R.) BN 99/01 $15K covered McKinney Mtn. (Methow R.) BN 99/01 $15K covered 6.9 Fish Passage Barrier Identification WDFW will train local WDFW/County/Ecology staff and volunteers who are associated with funded projects or programs to identify passage barrier problems associated with diversion facilities. Others will be trained as WDFW staff and resources become available. WDFW will monitor the barrier identification program and keep the Implementation Committee informed of the status of the passage improvements. 6.10 Fish Screen and Passage Assessment — Known Facilities WDFW will complete by March 1, 2000, an assessment of the adequacy of fish screens and potential passage barriers associated with known diversion facilities. 6.11 Fish Screen and Passage Assessment — All Facilities WDFW, in coordination with the Implementation Committee, will develop priority stream reaches for initial inventories of all screening and passage problems. WDFW and the County, in collaboration with the Implementation Committee, will seek funding for facility owners and water users through the SRFB to correct passage and screening problems identified during the inventory phase. WDFW will provide technical and other assistance, as available, to owners of USFS permitted diversions to fix diversion passage barriers by March 1, 2000. Those receiving SRFB funding will receive priority. 6.12 County Enforcement Upon referral of appropriate cases, the County will begin prosecution of willful violations of the Hydraulics Code and willful unauthorized use of water when requested by Ecology or WDFW to do so. 6.13 Water Conservancy Board The County will petition Ecology to establish a Water Conservancy Board for the Methow River Basin before January 1, 2001. The Water Conservancy Board will, among other things, expedite water-bank transactions that contribute to instream flows. Ecology will provide training to the Water Conservancy Board in a timely manner. 7. MILESTONES FOR THE DEVELOPMENT OF THE HCP The County and State commit to development either jointly or separately an HCP according to the target dates as follows: Internal scoping: initial biological goals March 2000 and objectives for HCP Commence baseline analysis and April 2000 modeling of surface flows, ground water, and water use First estimate of proportionate share and November 2000 other mitigation measures Second estimate of proportionate share November 2001 and other mitigation measures Public scoping of HCP/EIS January 2002 Issue draft HCP/EIS and, if any, proposed November 2002 rules and ordinances Close comment period April 2003 Contingent adoption of state rules and May 2003 local ordinances implementing HCP Final approval of HCP June 2003 It is understood by the parties that these dates may be adjusted through the time required to actually develop the HCP. 8. MEASURING PROGRESS UNDER THIS AGREEMENT 8.1 Background The Parties recognize that certainty and progress in the implementation of this Agreement are crucial to achieving adequate flows for fish and resolving existing screening, barrier and passage problems for fish. NMFS, FWS, Ecology, WDFW, the County, and GSRO will assess progress as described in this section in order to continue to exercise their enforcement discretion. To maintain federal and state assurances under this Agreement, interim conservation measures, HCP development milestones, and preparatory work for contingency actions must be substantially achieved. 8.2 Determination of Sufficient Progress The intent of this agreement is to conserve and enhance instream flows to achieve the biological objectives of the ESA. Sufficient progress toward these objectives is not possible to determine simply by measuring instream flows. Natural flows vary dramatically from year to year due to environmental conditions. Historical data on reach-by-reach instream flows is also not sufficient to assess whether high or low flows are due to natural conditions or changes in water use. Provisional flows will be established based on best available scientific information, will be used as goals, and will be modified annually. Progress toward meeting the provisional flows defined in Section 8.5 will be given significant weight by the Implementation Committee, but Sufficient Progress will also be assessed by considering the following additional factors: 1) Percentage of possible proportionate shares contributed to instream flows. 2) Number of enrollees in the Voluntary Conservation Program and quantity of water conserved. 3) Number of enforcement actions conducted by Ecology . 4) Quantity of water returned to instream flows. 5) Quantity of water purchased or leased by Ecology from willing sellers. 6) Actual instream flows during irrigation season in each of the seven stream management units. 7) Achievement of other commitments on the timeframes set in the Memorandum of Agreement. Each October the Implementation Committee will assess and determine if Sufficient Progress is being made annually. Such a determination shall be made by a majority vote of the members of the Committee; however, the NMFS and USFWS representatives must be a party to any majority finding that there is Sufficient Progress. Failure to find Sufficient Progress constitutes an automatic finding that Sufficient Progress is not being met. In October 2000, the Implementation Committee will develop benchmarks for each of these factors. The benchmarks will be used to assess progress in future years. As a result of its assessment of Sufficient Progress, the Implementation Committee may continue with the current strategy, shift emphasis in the strategy (e.g., more commitment to the Voluntary Conservation Program) or decide to abandon a strategy. 8.3 Withdrawal of Federal Assurances If Sufficient Progress is not achieved under this Agreement and the lack of Sufficient Progress is not caused by the Services, and/or if a party proposes to modify its assurances or commitments beyond an acceptable level, the Services may withdraw the federal assurances provided in this Agreement. Before the assurances are withdrawn, NMFS or FWS must provide all parties to this Agreement with written notice describing the circumstances considered to be a failure to achieve Sufficient Progress or other reasons for proposed withdrawal, and provide 60 days to either cure the lack of Sufficient Progress or convince NMFS or FWS to extend. If, after 60 days, the lack of Sufficient Progress has not been cured or otherwise addressed to the satisfaction of NMFS or FWS, the federal assurances may be withdrawn. 8.4 Withdrawal of State Assurances If Sufficient Progress is not achieved under this Agreement and the lack of Sufficient Progress is not caused by the Services or State, Ecology may withdraw assurances under Section 4 of this Agreement. Before the assurances are withdrawn, Ecology will provide all parties to this Agreement with written notice describing the circumstances considered to be a failure to achieve Sufficient Progress and providing 60 days to either cure the lack of Sufficient Progress or convince Ecology that Sufficient Progress is being achieved. If, after 60 days, the lack of Sufficient Progress has not been cured or otherwise addressed to the satisfaction of Ecology, assurances in Section 4 of this Agreement may be withdrawn. 8.5 It is the intent of this agreement to achieve the provisional instream flows by June 2003 in the following sequence of steps: 50% of difference between actual and provisional flows by June 2001 75% of difference between actual and provisional flows by June 2002 100% of difference between actual and provisional flows by June 2003 9. INTEGRATION WITH ESA CONSULTATION AND BIOLOGICAL OPINIONS ISSUED BY NMFS OR FWS 9.1 Effect of MOA on Section 7 Consultation for Federal Actions Under Section 7 of the ESA, NMFS and FWS are required to ensure that "any action authorized, funded, or carried out" by any federal agency is "not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat determined . . . to be critical." For water users in the Methow Basin who are subject to consultation under Section 7 of the Endangered Species Act, biological opinions with a jeopardy determination may include as a reasonable and prudent alternative the voluntary agreement by the applicant to participate in the implementation of an approved programmatic HCP or individual HCP and incidental-take permit covering the proposed activities of the affected water user. In the interim before a programmatic Methow Basin HCP is developed and approved, the State and County agree to assist any water user who seeks to develop an individual HCP if that water user proposes to use the waterbank established under Section 6.2 of this Agreement as part of the HCP. This Agreement in no way modifies or limits the right of any water user to independently develop an HCP and apply to the Services for an incidental-take permit without the assistance or involvement of the State or County. 9.2 State and County Disclaimer on Biological Opinions By entering into this Agreement, the State and the County make no express or implied endorsement of the legal, procedural, or biological validity of any consultation on a federal action and resulting biological opinion that references or relies on the commitments made by the State or the County through this Agreement. This Agreement may not be used to stop the State or County in any future dispute or argument concerning consultation by NMFS or FWS on actions or interests affecting the State or County. 10. OTHER COMMITMENTS OF THE PARTIES 10.1 Department of Ecology 10.1.1 Participation on Implementation Committee and Technical Advisory Group. Ecology will chair the Implementation Committee. Ecology will participate as appropriate in any technical group created by the Implementation Committee. 10.1.2 Water Right Administration Ecology agrees to expeditiously process water-right changes that are consistent with the goals of this Agreement. 10.1.3 Water Conservation Grant Programs Ecology will provide technical assistance to participants in the Voluntary Conservation Program by recommending sources of funding, assisting in preparing grant applications and preparing individual conservation plans. 10.1.4.1 Assessment of Ground Water Ecology will work with the Planning Unit and County to assess the number and location of exempt wells, areas where ground water and surface water are in hydrological continuity, degree of consumptive use by existing groundwater users, and the extent to which the 2 cfs/reach reservation of water established by rule in 1977 has been appropriated. By July 2000, Ecology will identify to the Implementation Committee, the Planning Unit and the general public those stream management units in the Methow Basin where any new appropriation of ground water can be obtained only through a waterbank transaction. 10.1.5 Technical Assistance in Development of HCP Ecology will give priority to dedicating personnel, funding, and other resources to the development of a Methow HCP. 10.2 Washington Department of Fish and Wildlife (WDFW) 10.2.1 Participation on the Implementation Committee and Technical Advisory Group WDFW will participate on the Implementation Committee and on any technical groups, as appropriate. 10.2.2 Effects of Winter Withdrawals on Listed Species WDFW will advise Ecology and the Implementation Committee by March 1, 2000, of its assessment of winter minimum flow needs for listed species in the Methow River basin. This information will be shared with the Planning Unit, as requested. WDFW and Ecology will jointly determine the consistency of converting seasonal to year around water withdrawals with meeting winter minimum flow needs. 10.2.3 Technical Assistance in Development of HCP WDFW will give priority to dedicating personnel, funding, and other resources to the development of a Methow HCP. 10.2.4 Related Riparian Restoration Work WDFW will seek additional opportunities to enhance stream flows by directing riparian restoration or other funding, as appropriate, toward purchase or lease of properties with associated senior water rights. 10.3 Okanogan County 10.3.1 Participation on the Implementation Committee Okanogan County will participate on the Implementation Committee and the TAG. 10.3.2 General The County will provide rapid access to County information, will provide public outreach to its citizens on the implementation of the MOA and development of the HCP, and will seek funds to support the implementation of the MOA. Note: There is also some grant application activity to be included here. 10.4 National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services) 10.4.1 Participation on the Implementation Committee and Technical Advisory Group The Services will participate on the Implementation Committee, the TAG and any other technical groups, as appropriate. 10.4.2 Development of HCP The Services will cooperate in providing technical assistance to the development of the HCP and will respond to proposals and comments in a fashion that supports timely completion of the HCP under the schedule set forth in Section 6.3. 10.5 Governor’s Salmon Recovery Office (GSRO) 10.5.1 Participation on the Implementation Committee The GSRO will participate on the Implementation Committee. 10.5.2 Coordination The GSRO will coordinate action by state agencies and promote development of model legal and biological framework for water resource management and habitat conservation that is transferable to other WRIAs and regions. The GSRO will direct the Cooperative Extension Service, the Washington Conservation Commission, and the Washington Department of Agriculture to assist Ecology in developing, promoting, and implementing the Voluntary Conservation Program. 10.5.3 Assistance in Development of HCP The GSRO will give priority to dedicating personnel, funding, and other resources to the development of a Methow HCP. 10.5.4 Public Outreach and Education on ESA Compliance The GSRO will coordinate a three-year public outreach and ESA compliance-awareness program sponsored by the State and the County to promote ESA compliance and habitat conservation. The program will commence by January 1, 2000. 11. IMPLEMENTATION OF THIS AGREEMENT 11.1 Period of Performance The effective date of this Agreement is the first date that it has been signed by all parties. 11.2 Annual Review of Performance The Parties, with appropriate staff and the GSRO, will meet annually during the month of October to review compliance with this Agreement. 11.3 Amendments This Agreement may be updated, modified, or refined only by the express written consent of all Parties. 11.4 Cooperation in Defending Actions Under this Agreement In the event that actions consistent with and pursuant to this Agreement by officers, agents, or employees of the Parties, or any water user who develops and implements an Individual Conservation Plan or enters into a water-use limiting agreement consistent with the Voluntary Conservation Program established pursuant to Section 6.1 of this Agreement, are alleged in any administrative appeal or action before a court to be a violation of the ESA, the Parties shall fully cooperate in defending the actions with records, information, evidence, or testimony. 11.5 Funding The parties agree to make every appropriate effort to secure the funding necessary to carry out the commitments set forth in this agreement. 11.6 Termination Termination of this Agreement may occur upon 60 days’ written notice by any party. Unless otherwise agreed, termination of this Agreement shall cause the withdrawal of all federal assurances and state assurances in Sections 4.1, 4.2, and 4.3. It is the intent of the State and the County to terminate this Agreement if the United States initiates an enforcement action under Section 9 of the ESA against the State, County, or any water user enrolled in the Voluntary Conservation Program, or if a citizen lawsuit under the ESA results in an injunction against the interests of the State, County, or a water user enrolled in the Voluntary Conservation Program on the basis of actions taken pursuant to this Agreement. Unless otherwise expressly agreed through written amendment approved by all Parties, the State, County, and water users shall have no further obligations under this Agreement if any provision of this MOA is found by a court of the State of Washington or the United States to be in violation of state or federal law. Editor's note: The News has condensed the signature block section for space reasons. The agencies and title of its signing official are listed below. This document has not yet been signed. National Marine Fisheries Service Washington Coordinator Assistant Regional Director, United States Fish and Wildlife Service Director, Washington Department of Fish and Wildlife Director, Washington Department of Ecology Okanogan County Commissioner, Dist. 1 Okanogan County Commissioner, Dist. 2 Okanogan County Commissioner, Dist. 3 Editor's note: A footnote to the agreement defines species to be protected. 1Salmon, steelhead, and bull trout are collectively referred to as "salmonids" in this agreement. 2 While the HCP is being developed, Ecology, the County and others will be working to reduce the likelihood of "take" by conserving and enhancing stream flows to levels adequate for salmonids. At the same time, the WRIA Planning Unit will reassess the "instream flows" Ecology adopted into rule in 1976. To avoid confusion, it is important to distinguish between "instream flows" and provisional instream flows used in the development of the biological goals and objectives for the HCP. "Instream flows" are based in state law, adopted as regulations and have the effect of conditioning every water right junior to the adoption date of the regulation to stop withdrawing water when stream flows fall below the "instream flow" level. Provisional instream flows adequate for salmonids are biologically based estimates of flow levels necessary to provide properly functioning habitat conditions for salmonids listed under the ESA. Flow data will be collected that will inform all Parties both for the HCP and the WRIA planning effort. While it is possible that final recommendations on "instream flows" and "provisional" instream flows necessary to provide properly functioning habitat will be the same, it is not assured. 3 A logical expression of this concept is as follows: PSi = WUi / WUi (PFsmu – BFsmu) where, · PSi is the proportionate share for a given individual water user · WUi is the water right held by the given individual water user · WUi is the sum of all water rights for a given stream management unit · PFsmu is the provisional flow, which is a desired biological goal to provide adequate flows for native salmonids within a particular stream management unit. · BFsmu is the existing baseline flow for a given stream management unit under natural conditions as modified by current water use in that stream management unit. The Implementation Committee, in consultation with the TAG may adjust this formula, as necessary, for a given stream segment. 4 It is the intent of the State and County to manage the implementation of Proportionate Shares consistent with the senior or junior status of an individual water right and with the understanding that Proportionate Shares must be implemented in a way that achieves Sufficient Progress under this Agreement. It is also the intent of the State and County to develop a more sophisticated Proportionate Share methodology for an HCP that would accommodate the natural seasonal and annual variations in the hydrology of the Methow Basin, the evolutionary success of salmonids in adapting to varying conditions, and a balancing of resource uses and resource protection that is biologically sound and economically practicable. ESA's power rests in a few key sections As with most legislation, the Endangered Species Act contains much boilerplate and stilted, often redundant language. But provisions having the most critical impacts are found in a few key sections that are open to widely differing interpretations. They outline what must be done by government and the private sector when a species listing is made—and the potentially heavy penalties for violations. Some of the most debated provisions involve what constitutes "best scientific and commercial data" used for decisions to list a species and chart its continued protection and recovery. This is a brief overview of ESA provisions that have been most discussed and have the greatest potential impact in the Methow Valley. The responsibility for making listing decisions falls with the Secretary of Commerce or Interior, whichever cabinet level department has agencies with plant and wildlife missions. Under Commerce, the key agency is the National Marine Fisheries Service, what might be called a sub-agency of the National Oceanic and Atmospheric Agency (NOAA). US Fish and Wildlife Service, the other key government agency, is part of the Department of Interior. Section 3 of the ESA affords protection for all endangered and threatened species, "other than a species of the Class Insecta determined ..... to constitute a pest whose protection under the provisions of this Act would present an overwhelming and overriding risk to man." Section 3 also defines "critical habitat" as the, "specific areas within the geographical area occupied by the species, at the time it is listed".. "specific areas outside the geographical area occupied by the species"... "(that are determined) essential for the conservation of the species," and, "(areas) for which no critical habitat has heretofore been established." Although broad in scope, Section 3 does provide that, "Except in those circumstances determined by the Secretary critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.." In practice, the interpretation of habitat is left largely at the agency rather than cabinet level, leaving "the Services," as they’re known, with substantial power to make decisions. Those decisions that result in listings must be made, "solely on the basis of the best scientific and commercial data available." Besides Section 3, the sections most often cited in ESA discussions and media coverage include: Section 4 stipulates that listing decisions be made, "solely on the basis of the best scientific and commercial data available to (the cabinet level officials) after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.." Section 4(b) provides that an agency can designate "critical habitat, and make revisions thereto...on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact..." But the law allows for exclusion of, "any area from critical habitat if (the secretary of the cabinet department) determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned." In the Methow Valley and elsewhere in the upper Columbia Basin, there are arguments that the, "best scientific and commercial data available," has not been developed to support either listing of the species or designation of critical habitat. Section 4(d) applies to threatened, rather than endangered species, and requires issues regulations deemed, "necessary and advisable to provide for the conservation of such species." Section 7 requirements resulted in a lost irrigation season for many Methow Valley irrigators who divert on Forest Service land, and in effect served notice of things to come with ESA enforcement. Section 7 requires that federal agencies "in consultation with" the listing agency "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species ... after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption.... In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available." Section 9 defines the responsibilities and jurisdictions of ESA for "private persons," making it unlawful for landowners to "take" threatened or endangered species. Section 10 provides a remedy for allowing the, "take" of a listed species with a permit, known as an "incidental take permit." This is an important issue in the memorandum of agreement for the Methow Valley, in that National Marine Fisheries Service will not issue an "incidental take permit" until certain criteria, such as target stream flows, yet to be set, are achieved. A permit to take listed species cannot be issued, "unless the applicant therefore submits...a conservation plan that specifies..the impact which will likely result...steps the applicant will take to minimize and mitigate (them)..funding that will be available..(and) what alternatives actions to such taking the applicant considered.." NMFS has agreed "habitat conservation plan," is the best way to protect landowners and government agencies against ESA litigation. However, the agency has said it will not issue a permit for "incidental take" until the plan is completed after several years. Section 11 is the penalties and enforcement section of ESA. It describes penalities of as much as $25,000 for civil infractions to $50,000 in criminal cases and possible jail terms of a year. This section authorizes "citizen suits," in which private parties may file suit, with 60 days notice, to force compliance with the ESA. The broad nature of this provision has prompted some observers to call it the "hammer" of the legislation. Commissioner's Corner ~ by Dave Schulz
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