NEWS

For Development of a Methow River Basin Plan to be considered in development of a potential Habitat Conservation Plan and Implementation of Interim Performance guidelines

1. RECITAL OF PURPOSE

1.1 WHEREAS, the Chinook salmon and steelhead trout are listed as endangered species under the Endangered Species Act ("ESA"), and the bull trout is listed as a threatened species under the ESA and that the Methow River Basin provides habitat for these fisheries and 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, 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"); and

1.4 WHEREAS, the State, County and Methow Basin Planning Unit (Planning Unit) represent the citizens within the Methow Basin and commit to protecting existing water rights and uses. In so doing, the State Okanogan County and MBPU are committed to certain interim performance guidelines and measures with the goal of pursuing a potential Habitat Conservation Plan ("PHCP"), and;

1.5 WHEREAS, the State of Washington, Okanogan County and Planning Unit are willing to develop a Methow Basin Planning Unit Plan (the "Plan" or "MBPUP") which will include Planning Unit recommendations and plan elements outlining historical water use and evaluating the fisheries. The MBPUP shall form the basis on which to negotiate a formal agreement to develop an PHCP within specified time frames; and

1.6 WHEREAS, development of an PHCP 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" remains in effect; and

1.7 WHEREAS, the State of Washington and Okanogan County agree to demonstrate their commitment to develop an PHCP with the assistance of the Planning Unit within specific time frames and;

1.8 WHEREAS, the NMFS, the FWS, the State of Washington, Okanogan County, the Governor’s Salmon Recovery Office along with the Planning Unit, collectively known as the Parties share the understanding that collaborative and volunteer efforts should reduce the need for regulatory and enforcement measures to be taken by state and federal governments; and

1.9 WHEREAS, the Parties to this Agreement express their commitment to the recognition of water rights and uses of the citizens of the Methow River Basin, and to the survival of fish listed as endangered or threatened under the ESA ,and the Parties recognize that conservation measures that balance human need and the needs of listed fish species must prevail should conditions develop that make the interim performance guidelines and measures of this Agreement impossible to implement and;

1.10 WHEREAS, HB2514 and HB2496 passed by the State of Washington is the best means of gaining local response and participation and developing a plan for the Methow Basin Watershed, with the Okanogan County as the lead agency addressing water quantity, water quality, habitat, and instream flows,

THEREFORE, THIS 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 (DOE) and Washington Department of Fish and Wildlife (WDFW), and Okanogan Okanogan County along with the Methow Basin Planning Unit establish the following commitments:

2. SCOPE

2.1 Geographic Scope

The geographic scope of this Agreement 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, and the resulting incidental-take permit will be, at a minimum, (1) assessment of and all legal surface diversions and conveyances of water from all lakes, rivers and streams that are or contribute to salmonid-bearing waters of the Basin and the application of that water to properties within the Basin, (2) assessment of and all legal withdrawals of ground water from any source demonstrated to be in direct continuity with salmonid-bearing waters of the Basin and the application of that water to properties within the Basin, (3) operation of adult and juvenile salmonid passage facilities associated with all legal water diversion structures or impoundments, (4) operation of fish screens associated with water diversion structures or impoundments, and (5) an assessment of groundwater storage and recharge, and (6) the actions by Ecology, WDFW and Okanogan Okanogan County specifically for the purpose of implementing this Agreement or the PHCP.

2.3 Species Covered

Incidental-take permit species would include 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 west slope cutthroat trout (O. clarkii), an unlisted fish native to the Methow River Basin.

NMFS and FWS ASSURANCES

3.1 Incidental-take Permit

In light of the desire to pursue a long-term PHCP including the lawful diversion and withdrawal of water together with the associated operation of lawful water diversion and withdrawal facilities and in light of the substantial benefits to listed fish species that will be produced by implementation of interim performance guidelines and measures during the development of a long-term PHCP, the State of Washington, Okanogan County, and the Planning Unit, and Methow Basin water users seek assurance from NMFS and FWS that operators of lawful water diversion or withdrawal facilities in the Basin will not be subject to enforcement actions under the ESA for taking listed species resulting from activities described in Section 2.2. NMFS and FWS fully support the decision to prepare and implement an PHCP, with the objective of issuing a long-term incidental-take permit as soon as an acceptable long-term PHCP is completed.

3.2 Interim Enforcement and Compliance Under the ESA

Because of the interim performance guidelines and measures proposed by the State, Okanogan County, and Planning Unit, the agencies will exercise their enforcement discretion to refrain from prosecution if sufficient progress is being made in developing an PHCP 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 (noted in 3.1 and 3.2) offered under this Agreement will be available, provided that there is sufficient progress in achieving the terms, goals, commmitments and interim performance guidelines and measures of this Agreement.

WASHINGTON STATE ASSURANCES

4.1 Transfer of Information

State agencies commit to providing available information to the Planning Unit, upon request, relative to WRIA 48.

4.2 Enforcement Actions

Consistent with its authority under RCW 90.03.0360 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.

4.3 Withdrawal of Waters from Appropriation

State agencies commit that they 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 (the seven reaches in the 1976 Basin Plan) from further appropriation within 30 days of a determination that Sufficient Progress under this Agreement has not been made for two years in sequence.

4.4 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 ground water adjudication of the Methow Basin. Provided that Sufficient Progress, consistent with the standards set forth in section 9, is being achieved under this Agreement, Ecology shall not file a petition for adjudication. This will provide the 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 initiate necessary investigations and procedures for filing a general stream and ground water 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 ground water adjudication. However, such petition shall not occur before September, 2003.

4.5 Subject to 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. Nothing in this Agreement shall operate to impair or diminish or result in the impairment or diminution of any existing water right. See the Statewide Strategy for Salmon Recovery (Extinction is not an Option, draft 1999): "Water rights are issued in perpetuity and are a form of property right. As long as water continues to be used under a water right, the right remains effective and is relatively immune to being modified without the owner’s consent. If a water right is altered or taken back by the state for a public purpose, compensation must be paid to the holder of the right."

5. OKANOGAN COUNTY AND PLANNING UNIT ASSURANCES

5.1 Performance of the Okanogan County and the Planning Unit as well as completion of expected Basin studies and improvements for listed species are contingent upon adequate funding. Should the Okanogan County and Planning Unit not complete their tasks, for some reason other than lack of funding, the State of Washington will complete the studies, subject to funding.

5.2 Okanogan County Enforcement

Upon referral of provable cases, the Okanogan 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. AUTHORITIES AND STRUCTURE

6.1 Commitments in this Agreement

Each Party asserts the authority to make the commitments called for in this Agreement.

6.2 The Implementation Committee

The NMFS, FWS, Ecology, WDFW, Okanogan County, a member of the Methow Basin Planning Unit and the Governor’s Salmon Recovery Office ("GSRO") shall comprise the Implementation Committee consisting of one representative from each entity. In addition to its member, a non-voting member of the Planning Unit or its designee shall serve as chair of the Implementation Committee. All decisions by the Implementation Committee shall be by unanimity. Sufficient time shall be granted to each representative to consult with their constituents or agencies in any decision making process. The Implementation Committee shall provide information to the Planning Unit and implement the Agreement and development of the PHCP.

6.3 Integration with Washington State’s Watershed Planning Law and Activities

Ecology, the lead agency Okanogan County, the Colville Confederated Tribes and the municipalities of Twisp and Winthrop 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 Okanogan County is responsible for working with the State and the Planning Unit to develop and manage the water resource planning process for the Methow Basin. The Planning Unit has commenced a comprehensive review and initiated studies to obtain necessary data for evaluating water resources in the Methow Basin that are intended to lead to recommendations for future management of water resources. The Parties support the integration of the work of the Planning Unit with the time frames and other commitments within this Agreement.

6.4 Technical Advisory Group ("TAG")

A formal Technical Advisory Group (TAG) will be established by the Implementation Committee to advise the Implementation Committee and provide technical assistance to the Planning Unit. Every effort will be made to have the TAG composed of the same members as the TAG appointed by the Planning Unit.

6.5 Coordinating the Work of the TAG(s) and Planning Unit

Several tasks are common to the development of the Plan and an PHCP. It is the intent of the Parties that duplication of work between the Plan and PHCP be minimized. To that end, it is the intent of the State and Okanogan County, as sponsors of the PHCP, to incorporate the efforts of the Planning Unit. The Planning Unit, subject to necessary funding, shall:

a) Initiate and complete a hydrological analysis of the condition, availability and use of ground water and surface water using historical data, review of previous studies, and new information;

b) Recommend a watershed management plan; and

c) Recommend a watershed water resource model and the necessary data for model verification, that may be used as a tool for water resource management in the Plan or PHCP.

The hydrological study, the resulting watershed management plan, the habitat plan and the verified water resource model shall become key components of the PHCP. Contingent upon available funding, the sponsors of the PHCP shall complement the work of the Planning Unit, or when requested, conduct a task that the Planning Unit is unable to complete on a schedule and level of quality necessary for the Planning Unit.

6.6 Promoting Maximum Local Participation and Support

To promote the fullest possible participation by the Okanogan County and the Planning Unit in TAG meetings, such meetings will be held, to the maximum extent practicable, in the Methow Valley. Participation by the Okanogan County, Planning Unit, and TAG members by telephone conference shall be available for all meetings of the TAG outside the Methow Valley. A schedule of meetings for the Planning Unit and the TAG shall be published in advance.

6.7 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. Public comments on the TAG’s recommendations may be submitted in writing to the Implementation Committee and shall be maintained in the public record. Ecology and the Planning Unit shall maintain the record.

6.8 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 any other law. Personnel on the TAG may be directly engaged in these activities as part of other duties assigned by their respective agencies.

7. INTERIM PERFORMANCE GUIDELINES

Water diversions in the Methow Basin are different now and have evolved over the past 100 years. The question that remains is what role do irrigation diversions, the subsequent ground water recharge and return to nearby streams contribute to stream levels?

This Agreement outlines the intent of the Parties to establish a long-term water management strategy that incorporates the key work plan elements developed by the Planning Unit into an PHCP that will establish the means of maintaining the instream flows necessary for listed species and estimating the financial cost in order to obtain necessary funding.

This summary addresses what we are doing for fish and the default measures:

· Passage barriers addressed

· Fish screens installed

· Planning Unit work elements

· Trust water which includes leases, purchases and voluntary conservation measures

· Monitoring

· Assessment of water use

· Water Conservancy Board established

· Enforcement of illegal water use

· Default measures as noted in Sections 4 and 9

7.1 Fish Passage Barrier Identification

The Planning Unit and Okanogan County staff shall identify passage barrier problems associated with diversion facilities. WDFW will assist with the barrier identification program, inform the Implementation Committee of the status of the passage improvements, and assist in obtaining funding.

7.2 Fish Screen and Passage Assessment

WDFW will advise the Planning Unit and Implementation Committee of the adequacy of fish screens and potential passage barriers associated with currently known diversion facilities by May 1, 2000. WDFW will provide technical and other assistance, including funding, to owners of USFS permitted diversions, and other water users, to fix diversion passage barriers during the 2000 calendar year. Water users obtaining funding from any source specifically for fish screens will receive priority in scheduling and installation.

7.3 Funding, Grant Applications

The Planning Unit and the Okanogan County shall consider all sources of funding including funding available from the Salmon Recovery Funding Board ("SRFB"), the National Fish and Wildlife Foundation, and available federal or state grants for funding necessary to install fish screens to allow the diversion of water consistent with the water right for the diversion. To the extent that funding becomes available, WDFW commits to expedite the construction and installation of the fish screens.

7.4 Planning Unit Work Plan Elements:

a) The Planning Unit shall review historical information, prior and current private, Federal and State studies to see if water diversions exceed current WRIA guidelines for Priority I, II, III and IV water use categories. The Planning Unit may recommend further areas of study to be incorporated into the hydrological study.

b) The Planning Unit will work with valley residents and the DOE to true up actual water use in the Methow Basin with respect to DOE claims, permits, and certificate registry. This task recognizes that assessment of water use impacts cannot be accurately understood for the present or future without knowing actual water use.

c) Instream flows plan element: The Planning Unit will analyze current studies and limiting factor analyses to evaluate the role of instream flows as they relate to listed species. Among the factors to be considered is whether it is possible to increase habitat for listed species by increasing instream flows by increasing ditch transportation efficiencies. Conversely, the committee is to evaluate whether or not ditch transportation loss improves habitat for listed species. Further areas for study are to be recommended as part of the hydrological and habitat studies.

d) Identify and prioritize critical low water areas. The Planning Unit with their hydrologic and limiting factors assessments will identify areas with low water conditions. These areas will be prioritized based on the verifiable impact to salmon survival and habitat connection. Each site that is prioritized will have an assessment conducted on it to determine alternatives to solving the low flow condition.

e) The Planning Unit will initiate and complete a hydrological study that will evaluate ground water recharge from open ditch diversions and whether the recharge or lack of recharge affects salmonid habitat.

f) Complete a limiting factors analysis with the Conservation Commission, document trends and identify enhancement projects and future habitat improvements that can be implemented with available funding.

g) Complete a water quality assessment including estimates of how future growth may affect water quality. The water quality component will be integrated into the hydrologic model.

h) Develop and implement a stream gauge network plan that focuses on obtaining data on reaches with limited flow information. Factors to consider include whether the particular reach provides habitat for listed species and whether there are surface water diversions or ground water withdrawals in continuity with the reach.

i) Develop and implement a surface diversion water measurement program for major diversions. This program will interface with the proposed stream gauge network surface and ground water model.

j) Develop a water budget for the Methow Basin in compliance with the 2514 Watershed Planning process. The water budget will include the following elements:

1) Surface water hydrologic model which will be verified with historical and new stream flow, snowpack, surface diversion and meteorlogical data;

2) Ground water study will gather data for verifying the ground water model.

3) The hydrological model will combine the surface and ground water models.

k) Examination and evaluation of storage opportunities and creative means to delay run-off for the late summer period.

7.5 Trust Water

Key to developing water conservation measures is providing a legal means whereby a water right holder may "park" all or a portion of their water right without fear of losing their priority status or their water. The holder of the water right must easily reactivate their water right when it is needed. This eliminates excessive water use merely to maintain a water right. Several options for trust water must be available, including: (a) trust water purchases or leases for instream flows, and (b) trust water accounts to allow irrigators to keep their water rights

7.6 Water Use Monitoring

Ecology will assure that measuring devices are installed at the point of diversion on 95 percent of the surface water diversions (by volume of water used) by June 2001. The Implementation Committee will assess the status of water use monitoring after June 2001.

7.7 Assessment of Use

Ecology agrees to commit at least two full-time-equivalent professionals to assist the Planning Unit in their evaluation of current water use.

7.8 Water Conservancy Board
The Okanogan County has petitioned Ecology to establish a Water Conservancy Board for the Methow River Basin. Ecology will provide training to the Water Conservancy Board in a timely manner.

8. MILESTONES FOR THE DEVELOPMENT OF THE METHOW BASIN PLANNING UNIT PLAN AND THE FINAL HCP

2000:

1)Address screens and passage barriers

2)Develop preliminary hydrologic model

3)Diversion measuring program

4)Identify priority reaches

5)Develop work plan

6)Initiate public education program

7)Develop a interim voluntary water conservation pro- gram

8)Support voluntary water conservation practices by indi- vidual ditches

2001:

1)Address screen and fish passage barriers

2)Develop hydrologic model

3)Begin entering data from ongoing programs

4)Identify and prioritize critical low water areas

5)Implement interim voluntary water conservation programs that will include:

a) individual water conservation practices

b) operational management changes

c) voluntary non-use plan

d) implement Methow Basin trust water right plan

2002:

1)Complete all critical fish passage barrier projects

2)Implement interim voluntary conservation measures

3)Experiment with operational management changes and impacts to streamflows

4)Alternative analysis of critical low flow areas

5)Continue surface and groundwater data collection

2003:

1)Set sub basin base flows for streams based upon work plan

2)Compile hydrologic (surface and ground water) data for hydrological model verification

3)Make decisions with respect to final Methow Basin Planning Unit Plan

4)Begin implementation of basin water management plan and continue habitat enhancements

5)Complete Methow Basin Planning Unit Plan and if necessary initiate HCP

9. MEASURING PROGRESS UNDER THIS AGREEMENT

9.1 Background

The Parties recognize that certainty and progress in the implementation of this Agreement are crucial to the successful completion of potential HCP. The Planning Unit, NMFS, FWS, Ecology, WDFW, HB 2496 citizen’s group, the Okanogan County, and GSRO will assess progress as described in this section.

9.2 Determination of Sufficient Progress

The intent of this agreement is 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 beneficial but may fail to accurately depict whether high or low flows are due to natural conditions or changes in water use. Sufficient progress will be measured by considering whether the following elements have been met:

1. Establish work plan schedule

2. Analysis of actual water use and ownership is completed;

3. The Planning Unit completes tasks assigned to it;

4. Limiting factors analysis completed;

5. Hydrological study is initiated and progress milestones are completed;

6. Habitat analysis milestones are met;

7. Completion of water quality assessment of groundwater and surface water within plan time frames;

8. All diversions receive funding for proper screening consistent with the water right for the diversion;

9. All identified fish passage barriers are addressed in a timely manner;

10. Water monitoring program is initiated;

11. Progress towards defining biologically supported instream flow level

12. Quantity of water restored or maintained in each of the seven sub-basins through lease, purchase of water rights, trust, voluntary conservation ground water recharge and storage;

13. Actual instream flows during irrigation season in each of the seven sub-basins;

14. Development of off stream storage and ground water storage sites;

15. Identify and implement forest management practices to improve instream flows

16. Achievement of other commitments on the time frames set in this Agreement.

Each October the Implementation Committee will assess and determine if Sufficient Progress is being made annually. Such a determination shall be made by unanimity of the members of the Implementation Committee. In October 2000, the Implementation Committee will develop benchmarks for each of these factors. The benchmarks may be revised each October and will be used to assess progress in future years.

9.3 Documentation of Accomplishments

See Appendix A

9.4 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, the Services may withdraw the federal assurances provided in this Agreement. Before the assurances are withdrawn, the Services must provide all parties to this Agreement with written notice describing the circumstances considered a failure to achieve Sufficient Progress. The Parties shall have 60 days from receipt of the notice from the Services to cure the lack of Sufficient Progress. 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; provided that if the Parties diligently undertake efforts to cure the matters set forth in said notice and the cure will take more than 60 days to implement, then the Services agree to extend the deadline for withdrawal of the assurances upon the written request by the Party undertaking the efforts to cure the matters set out in said notice.

9.5 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, the State may withdraw assurances under Section 4 of this Agreement. Before the assurances are withdrawn, the State will provide all Parties to this Agreement with written notice describing the circumstances considered a failure to achieve Sufficient Progress. The Parties shall have 60 days from receipt of the notice from the State to cure the lack of Sufficient Progress. If, after 60 days, the lack of Sufficient Progress has not been cured or otherwise addressed to the satisfaction of the State, the state assurances may be withdrawn; provided that if the Parties diligently undertake efforts to cure the matters set forth in said notice and the cure will take more than 60 days to implement, then the State agrees to extend the deadline for withdrawal of the assurances upon the written request by the Party undertaking the efforts to cure the matters set out in said notice.

10. INTEGRATION WITH ESA CONSULTATION AND BIOLOGICAL OPINIONS ISSUED BY NMFS OR FWS

10.1 Effect of this Agreement 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 PHCP or individual PHCP and incidental-take permit covering the proposed activities of the affected water user. In the interim before a programmatic Methow Basin PHCP is developed and approved, the State and Okanogan County agree to assist any water user who seeks to develop an individual PHCP. This Agreement in no way modifies or limits the right of any water user to independently develop an PHCP and apply to the Services for an incidental-take permit without the assistance or involvement of the State or Okanogan County.

Regardless whether a federal agency is a signatory to this Agreement, the appropriate use by a federal agency (including, but not limited to the Forest Service), of this Agreement for purposes of satisfying Section 7 of the ESA shall be encouraged. In the case of jeopardy biological opinions, the Services agree to use this Agreement as a reasonable and prudent alternative.

10.2 State and Okanogan County Disclaimer on Biological Opinions

By entering into this Agreement, the State and Okanogan 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 Okanogan County through this Agreement. This Agreement may not be used to estop the State, Okanogan County, or any private citizen or entity in any future dispute or argument concerning consultation initiated by the Services.

11. OTHER COMMITMENTS OF THE PARTIES

11.1 Planning Unit, Implementation Committee, and DOE

11.1.1 With appropriate funding, the Planning Unit will conduct the scoping and public hearings necessary to implement the Methow Basin Planning Unit Plan and the potential HCP.

11.1.2 Water Right Administration

Ecology agrees to expeditiously process water right changes consistent with the goals of this Agreement whether from applicants or referred by the Water Conservancy Board. Ecology agrees to expeditiously process points of diversion changes (POD) recommended by the Planning Unit and the Implementation Committee on an emergency basis due to the anticipated conservation of water and benefits to listed species, which changes shall not impair existing rights, and Ecology agrees to accept the actual water use determined by the Water Budget Committee for purposes of the change application.

11.1.3 Assessment of Ground Water

Ecology will work with the Planning Unit and Okanogan 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 ground water users, and the extent to which the 2 cfs / reach reservation of water established by rule in 1977 has been appropriated. Ecology will supply the Planning Unit with all information on all water services and uses available to Ecology. If adequate data is not available Ecology will assist the Planning Unit in obtaining the necessary data.

11.1.4 Technical Assistance in Development of PHCP

Subject to funding Ecology will give priority to dedicating personnel, funding, and other resources to the development of the Methow Basin Planning Unit Plan and a PHCP. Assistance may also be sought from the HB 2496 citizens group, the Forest Service and the Soil Conservation Service.

11.2 Washington Department of Fish and Wildlife (WDFW)

11.2.1 WDFW will participate on the Implementation Committee and on any technical groups, upon request by the Planning Unit.

11.2.2 WDFW will give priority to dedicating personnel and other resources to the completion of Interim Performance Guidelines and Measures set forth above.

11.2.3 WDFW will give priority to habitat acquisition/protection to protect salmonid habitat

11.3 Okanogan County

11.3.1 Okanogan County will participate on the Implementation Committee and the TAG.

11.3.2 The Okanogan County will provide access to Okanogan County information, as it becomes available and subject to any privacy limitation under the Freedom of Information Act, will provide public outreach to its citizens on the implementation of this Agreement and development of the Methow Basin Planning Unit Plan and PHCP, and will seek funds to support the implementation of this Agreement. The Okanogan County will continue its role as lead agency and grant coordinator with regard to grants and funding sought through the SRFB and the National Fish and Wildlife Foundation. The Okanogan County agrees to provide technical support, including assistance in grant writing and coordination, for any other source of private or public funding.

11.4 National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services)

11.4.1 The Services will participate on the Implementation Committee, and the TAG and any other technical groups, as appropriate.

11.4.2 Upon request by the Planning Unit, the Services will cooperate in providing technical assistance to the development of the Methow Basin Planning Unit Plan and the PHCP and will respond to proposals and comments in a fashion that supports timely completion of the Methow Basin Planning Unit Plan and the PHCP under the schedule set forth in Section 8.

11.4.3 NMFS shall respond in a timely manner to proposals and maintain open communication with signatories of this Agreement. NMFS will dedicate resources necessary to meet timelines of this proposal.

11.5 Governor’s Salmon Recovery Office (GSRO)

11.5.1 The GSRO will participate on the Implementation Committee.

11.5.2 The GSRO will coordinate action by state agencies and promote development of model framework for water resource management and habitat conservation that is adaptable 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 in developing the Methow Basin Planning Unit Plan and the PHCP, as requested by the Planning Unit.

11.5.3 The GSRO will give priority to dedicating personnel, funding, and other resources to the development of the Methow Basin Planning Unit Plan and the PHCP.

11.5.4 The GSRO will fund public outreach and scoping required for the Methow Basin Planning Unit Plan and the PHCP.

12. IMPLEMENTATION OF THIS AGREEMENT

12.1 Period of Performance

The effective date of this Agreement is the first date that all parties have signed it.

12.2 Annual Review of Performance

The Parties, with appropriate staff will meet annually during the month of October to review compliance with this Agreement.

12.3 Contingencies

In the event that actions consistent with and pursuant to this Agreement by officers, agents or employees of the Parties, 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.

12.4 Amendments

This Agreement may be updated, modified, or refined only by the express written consent of all Parties.

12.5 Funding

The Parties agree to make every appropriate effort to secure the funding necessary to carry out the commitments set forth in this agreement.

12.6 Termination

Termination of this Agreement for failure to make sufficient progress shall be consistent with sections 9.4 & 9.5. Upon satisfaction of the conditions of sections 9.4 & 9.5, a termination may occur upon 60 days’ written notice by any Party. Unless otherwise agreed, termination of this Agreement shall cause the withdrawal of all assurances given by the Services, the State, the Okanogan County, and the Planning Unit in this Agreement.

Unless otherwise expressly agreed through written amendment approved by all Parties, the State, Okanogan County, and Planning Unit shall have no further obligations under this Agreement if any provision of this Agreement 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:

Signature blocks have been omitted for space reasons. The agreement is proposed to be signed by officials of National Marine Fisheries Service, US Fish and Wildlife Service, the state Departments of Ecology and Fish and Wildlife, the Governor's Salmon Recovery Office, all three Okanogan County Commissioners and a representative of the Methow Basin Watershed Planning Unit.

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