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Methow Valley News June 29, 2000 Endangered Species Printed with sponsorship of Methow Basin Planning Unit as a public service and communication outreach. This agreement reflects the progress of negotiations between the Planning Unit and National Marine Fisheries Service, the State and County. It does not reflect our final opinions or any legal position of the County or other interested parties. The content is for review by the general public so that the Planning Unit may more closely represent community interests and concerns. We hope to receive your input at the scheduled public meetings. —Methow Basin Planning Unit METHOW BASIN PLANNING UNIT AGREEMENT Among National Marine Fisheries Service, U.S. Fish and Wildlife Service, State of Washington, Department of Fish and Wildlife, Department of Ecology, Okanogan County and the Methow Basin Planning Unit For development of a Methow River Basin Plan to be considered in development of a draft 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 fish and other native fish species that are candidates for listing. Under the ESA and its implementing regulations, all endangered and threatened species must be protected. (Refer to Section 4(d), 7 and 9(a) of ESA 1973); and 1.2 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 1.3 WHEREAS, the Washington Department of Ecology (DOE), Washington Department of Fish and Wildlife (WDFW), and the Governor’s Salmon Recovery Office (GSRO) (collectively the "State"), Okanogan County (County) and Methow Basin Planning Unit (MBPU) represent the citizens within the Methow Basin and commit to protecting existing water rights and legal uses. In so doing, the State, the County and MBPU are committed to certain interim performance guidelines and measures with the goal of developing a draft Habitat Conservation Plan ("HCP"), and; Proposed wording from Dick Ewing for 1.3: WHEREAS, the State, County and MBPU represent the citizens within the Methow Basin and commit to protecting existing water rights and legal uses, as well as developing recommendations involving increased water usage in the future to address future growth. In doing so, the State, County and MBPU are committed to implementing a scope of work with the goal of developing a MBPUP, and; 1.4 WHEREAS, the State, County and MBPU are willing to develop a Methow Basin Planning Unit Plan (MBPUP) which will include MBPU recommendations and its effects in fish habitat plan elements outlining historical water use and evaluating the fisheries. The MBPUP shall form the basis on which to develop a HCP within specified time frames; and Proposed wording from Dick Ewing for 1.4: WHEREAS, the State, County and MBPU also recognize the ESA listing in Section 1.1 and are willing to include in MBPUP elements which address water use, its affects upon fish habitat, identify key limiting factors and habitat enhancement opportunities which will form the basis in developing a draft HCP. 1.5 WHEREAS, development of a draft 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" remains in effect; and 1.6 WHEREAS, the State and County agree to demonstrate their commitment to develop a draft HCP and likely sponsor, with the assistance of the MBPU within specific time frames and; 1.7 WHEREAS, NMFS, the FWS, the State, County, along with the MBPU, 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 local, state and federal governments; and 1.8 WHEREAS, the Parties find that the local development of watershed plans for managing water resources and for protecting existing water rights is vital to state and local interests. The local development of these plans serves vital local interests by placing in the hands of people who have the greatest knowledge of both the resources and the aspirations of those who live and work in the watershed and who have the greatest stake in the proper long-term management of these resources. The development of such plans serves state and federal interests by ensuring that water resources are wisely used, by protecting existing water rights, by protecting instream flows for fish and by providing for the economic well-being of citizens and their local communities. Further, federal authorities believe that local development of these plans is the best approach to addressing ESA related issues while protecting state and local interest in water resource management; and 1.9 WHEREAS, HB2514 and HB2496 passed by the Washington State legislature is the best means of gaining local response and participation and developing a plan for the Methow Basin Watershed, with the County as the lead agency addressing water quantity, water quality, habitat, and instream flows; and 1.10 WHEREAS, a questions remains as to level of effects that water use has with respect to the biological needs of ESA listed fish; and 1.11 WHEREAS, it is the intent of the Parties to develop a 2514 Plan whose elements all also comprise elements for a draft HCP that addresses the biological needs of fish and strategies to meet those needs; and 1.12 THEREFORE, THIS MEMORANDUM OF AGREEMENT (Agreement) among the NMFS, FWS, the State and the County along with the MBPU establish the following commitments: 2.0 SCOPE 2.1 Geographic Scope The geographic scope of this Agreement will be limited to the Methow River Basin, known under the State’s stream identification system as Water Resource Inventory Area (WRIA) Number 48. 2.2 Activities Covered Activities generally covered by the Agreement, and the draft HCP, will be, at a minimum, (1) the assessment and operation of 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, (2) the assessment and operation of all legal withdrawals of ground water from continuity with salmonid-bearing waters of the Basin, (3) assessment and operation of adult and juvenile salmonid passage facilities associated with all legal water diversion structures or impoundments, (4) assessment and operation of fish screens associated with water diversion structures or impoundments, and (5) an assessment and utilization of groundwater storage and recharge, and (6) the actions by DOE, WDFW and County specifically for the purpose of implementing this Agreement or the draft HCP. 2.3 Species Covered Incidental-take permit species would include Columbia Basin bull trout (Salvelinus confluentus DPS (distinct population species), 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. 2.4 Compensation Water rights are issued in perpetuity and are a form of property right. Nothing in this Agreement abridges an individual’s right to assert a regulatory taking under the United States and/or Washington State constitutions. As long as water continues to be used under a water right, a right remains effective and is relatively immune to being modified without the owner’s consent. If an alteration of a water right is a taking by the State for a public purpose, compensation must be paid to the holder of the right. 3.0 National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (FWS)- ASSURANCES 3.1 Incidental-take Permit In light of the desire to pursue a HCP 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 draft HCP, the State, County, and the MBPU, 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 a 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 to violation of the take prohibition in section 9 of the ESA. Prior issuance of a permit, NMFS and FWS does not provide such assurances. 3.2 Interim Enforcement and Compliance Under the ESA The Parties share the understanding that collaboration and volunteer efforts have and will continue to reduce the need for regulatory and enforcement measures to be taken by local, state, or federal agencies. It is the policy of NMFS and FWS to investigate alleged violations and take appropriate enforcement action with respect to 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 a draft HCP that meets the biological needs of fish 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 will be available, provided that there is "Sufficient Progress" in achieving the terms, goals, commitments and interim performance guidelines and measures of this Agreement. The standards of 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 users 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 the Agreement. 4.0 WASHINGTON STATE ASSURANCES 4.1 Transfer of Information The State commits to providing available information to the MBPU, upon request, relative to WRIA 48. 4.2 Enforcement Actions 4.2.1 Consistent with its authority under RCW 90.03.0360 and 90.44.050-250, DOE 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. DOE has the authority to bring enforcement actions against unauthorized water use. Such enforcement actions are generally subsequent to an assessment of water use. 4.2.2 Consistent with its authorities, WDFW will initiate enforcement compliance plan to prevent the unlawful taking of endangered or protected salmonids (RCW 77.155.120 and 77.155.130); to assure the proper screening of diversions (RCW 77.15.320); and to provide fish and habitat protection for "hydraulic projects" within the ordinary high water mark of waters of the state (RCW 77.15.300). 4.3 Withdrawal of Waters from Appropriation DOE commits 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) until December 31, 2002, except that those waters withdrawn prior to effective date of this Agreement shall remain withdrawn until DOE has sufficient information including that provided by the MBPU, to reinstate those waters for appropriation. DOE 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 after determination that Sufficient Progress has not been made or if termination of this Agreement occurs. This rule may be proposed no sooner than December 31, 2002. Review of proposed actions for closure will be subject to public comment. 4.4 Petition for Adjudication DOE has the authority to petition for a general stream and ground water adjudication of the Methow Basin. Provided that Sufficient Progress, consistent with the factors set forth in Section 7 of this document, is being achieved under this Agreement, DOE will not exercise its authority under RCW 90.03.110 or RCW 90.44.220 to petition for an adjudication before December 31, 2003. This will provide the MBPU the opportunity to complete a watershed plan under RCW 90.82 and the Parties time to complete a HCP for the Methow Basin. If sufficient progress is not determined under Section 7.2, then DOE will initiate necessary investigations and procedures for filing a general stream and ground water adjudication petition under Chapter 90.03 RCW. DOE, pursuant to its authority under RCW 90.03.110 and RCW 90.44.220, will petition for a general stream and ground water adjudication after determination that Sufficient Progress has not been made or it termination of this agreement occurs. However, such petition shall not occur before December 31, 2002. 4.5 Subject to Existing Water Rights To promote the support and confidence of water users and the public in this Agreement, DOE affirms its duty to vigorously represent the sovereign interests of the State with respect to water resources, consistent with RCW 90.54.080. DOE 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 of diminution of any existing water right and legal uses. 4.6 Water Use Assessment DOE will work with the MBPU and the County to assess both surface water and ground water, including 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 develop a water budget consistent with the RCW 90.2 workplan. DOE will supply the MBPU with all information on all water services and users available to DOE. If adequate data is not available, DOE will assist the MBPU in obtaining the necessary data. DOE, as a member of the MBPU, agrees to consider the actual water use determined by the MBPU for the purposes of development of the water budget and other decisions regarding water use during the interim. 5.0 AUTHORITIES AND STRUCTURE 5.1 Commitments in this Agreement Each Party asserts the authority to make the commitments called for in this Agreement. 5.2 The Implementation Committee The NMFS, FWS, DOE, WDFW, County, a member of the MBPU 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 MBPU or its designee shall serve as chair of the Implementation Committee. All decisions by the Implementation Committee shall be by consensus. 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 MBPU and implement the Agreement and development of the draft HCP. 5.3 Integration with State’s Watershed Planning Law and Activities DOE, and the County as the lead agency for the MBPU (WRIA 48) have entered into an Agreement to fund and implement a watershed plan covering the Methow Basin. As an initiating government and lead agency, the County is responsible for working with the State and the MBPU to develop and manage the water resource planning process for the Methow Basin. The MBPU 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 MBPU with the time frames and other commitments within this Agreement. 5.4 Technical Advisory Group ("TAG") A formal Technical Advisory Group (TAG) will be established. The core TAG will be the MBPU TAG. The Implementation Committee has the ability to add members to the MBPU TAG to advise the Implementation Committee regarding technical issues. 5.5 Coordinating the Work With the Implementation Committee. Several tasks are common to the development of the Watershed Plan and a 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 draft HCP, to incorporate the efforts of the MBPU into the draft HCP. The MBPU shall: a) Initiate and complete a hydrological analysis of the condition, availability and use of ground water and surface water using 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 for water resources management in the Watershed Plan or draft HCP. The hydrological study, the resulting watershed management plan, the habitat plan and a verifiable water resource model shall become key components of the draft HCP. The sponsors of the HCP shall compliment the work of the MBPU, or when requested, conduct a task that the MBPU is unable to complete on a schedule and level of quality necessary for the MBPU. 5.6 Promoting Maximum Local Participation and Support To promote the fullest possible participation by the County and the MBPU in TAG meetings, such meetings will be held, to the maximum extent practicable, in the Methow Valley. Participation by the County, MBPU, 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 MBPU and the TAG shall be published in advance. 5.7 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. 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. DOE and the County shall maintain the record. 5.8 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. 6.0 SCOPE OF WORK AND SCHEDULE The Parties intend to develop a draft HCP that incorporates the key work plan elements developed by the MBPU to meet the biological needs of fish and to obtain necessary funding. These workplan elements and schedule include the following. More detail can be found in Table 1, following. A summary of these elements is provided below. 6.1 Fish Passage Barrier Identification The WDF&W will assist the MBPU and County staff in identifying 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. 6.2 Fish Screen and Passage Assessment WDFW will advise the MBPU 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. 6.3 Funding, Grant Applications The MBPU and the 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. 6.4 MBPU Work Plan Elements: a) Literature Search The MBPU 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 MBPU may recommend further areas of study to be incorporated into the hydrological study b) Assessment of Actual Water Use The MBPU 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 Instream flows plan element: The MBPU 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 MBPU 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) Hydrologic Study The MBPU 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 habitiat. f) Limiting Factors 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) Conduct water quality assessment 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) Install Stream Gauge Network 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 Diversion Measurement Program 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 Methow Basin Water Budget Develop a water budget for the Methow Basin in compliance with 2514 Watershed Planning process. The water budget will include the following elements: 1.) Surface water hydrologic model which well be verified with historical and new stream flow, snowpack, surface diversion and meteorological data; 2.) Ground water study; will gather data for verifying the ground water models. 3.) The hydrological model will combine the surface and ground water models. k) Examination and Examination of Storage Opportunities Examination and evaluation of storage opportunities and creative means to delay run-off for the late summer period. 6.5 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. 6.6 Water Use Monitoring DOE 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. 6.7 Assessment of Use DOE agrees to commit at least two full-time-equivalent professionals to assist the MBPU in their evaluation of current water use. Water Conservancy Board The County has petitioned DOE to establish a Water Conservancy Board for the Methow River Basin. DOE will provide training to the Water Conservancy Board in a timely manner. 6.9 Develop Monitoring Program Develop monitoring program for salmon recovery efforts in the Methow Basin that address 1.) effectiveness; 2.) compliance; and 3.) data collection. 6.10 Inventory Other Passage Barriers The Implementation Committee with the cooperation of the WDFW and MBPU will conduct an inventory of passage barriers, develop a passage barrier plan and work to restore passage in critical areas. 6.11 Develop Volunteer Water Conservation Program 6.12 Develop Public Education Strategy 7.0 MEASURING PROGRESS UNDER THIS AGREEMENT 7.1 Background The Parties recognize that certainty and progress in the implementation of this Agreement are crucial to the successful completion of the draft HCP. The MBPU, NMFS, FWS, DOE, WDFW, HB 2496 citizen’s group, the County, and GSRO will assess progress as described in this section. 7.2 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 MBPU 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 subbasins; 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. 17. Success in implementing Section 12.4 Funding". Each October 1st the Implementation Committee will assess and determine if Sufficient Progress is being made annually. Such a determination shall be made by consensus of the members of the Implementation Committee, with a dispute resolution process to resolve conflicts. In determining Sufficient Progress, the Service’s ability to respond to project requests will be factored into the decision. 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. 7.3 Documentation of Accomplishments See Appendix 1 7.4 Withdrawal of Federal Assurances If Sufficient Progress is not determined under Section 7.2 of this Agreement, 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. 7.5 Withdrawal of State Assurances If Sufficient Progress is not determined under Section 7.2 of this Agreement and the lack of Sufficient Progress is not caused by the 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. 8.0 INTEGRATION WITH ESA CONSULTATION AND BIOLOGICAL OPINIONS ISSUED BY NMFS OR FWS 8.1 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 draft HCP or individual PHCP draft HCP and incidental-take permit covering the proposed activities of the affected water diverter. In the interim before a programmatic Methow Basin draft PHCP is developed and approved, the State and County agree to assist any water diverter who seeks to develop a draft HCP. This Agreement in no way modifies or limits the right of any water diverter 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. Regardless whether a federal agency is a signatory to this Agreement, the appropriate use by a federal agency (including, but not limited to the USFS), 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. 8.2 State and Okanogan County Disclaimer on Biological Opinions By entering into this Agreement, the State and 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 County through this Agreement. This Agreement may not be used to estop the State, County, or any private citizen or entity in any future dispute or argument concerning consultation initiated by the Services. 9.0 OTHER COMMITMENTS OF THE PARTIES 9.1 Methow Basin Planning Unit (MBPU), Implementation Committee, and Department of Ecology (DOE) 9.1.1 The MBPU will sponsor public meetings and workshops to inform the public on the MBPU plan and the draft HCP. 9.1.2 Water Right Administration DOE agrees, consistent with state law, 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 MBPU 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. 9.1.3 Technical Assistance in Development of HCP DOE will give priority to dedicating personnel, funding, and other resources to the development of the MBPUP and a draft HCP. Assistance may also be sought from the HB 2496 citizens group, the USFS and the Soil Conservation Service. 9.2 Washington Department of Fish and Wildlife (WDFW) 9.2.1 WDFW will participate on the Implementation Committee, and the TAG, and any other technical groups, as appropriate. WDFW will give priority to dedicating personnel and other resources to the completion of Interim Performance Guidelines and Measures set forth above. 9.2.3 WDFW will give priority to habitat acquisition/protection to protect salmonid habitat. 9.3 Okanogan County (County) 9.3.1 The County will participate on the Implementation Committee and the TAG. 9.3.2 The County will provide access to County information, as it becomes available and subject to any privacy limitation under the State Public Disclosure Act, will provide public outreach to its citizens on the implementation of this Agreement and development of the MBPUP and draft HCP, and will seek funds to support the implementation of this Agreement. The County will continue its role as lead agency and grant coordinator. 9.4 National Marine Fisheries Service and the U.S. Fish and Wildlife Service (Services) 9.4.1 The Services will participate on the Implementation Committee, and the TAG and any other technical groups, as appropriate. 9.4.2 Upon request by the MBPU, the Services will cooperate in providing assistance to the development of and coordination between the MBPUP and the draft HCP. 9.4.3 NMFS shall respond in a timely manner to proposals and maintain open communication with signatories of this Agreement. 9.5 Governor’s Salmon Recovery Office (GSRO) 9.5.1 The GSRO will participate on the Implementation Committee. 9.5.2 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 MBPUP and the draft HCP, as requested by the MBPU. 9.5.3 The GSRO will give priority to dedicating personnel, funding, and other resources to the development of the MBPUP and the HCP. 9.5.4 The GSRO will give priority support for public outreach required for the MBPUP and the draft HCP. 10.0 IMPLEMENTATION OF THIS AGREEMENT 10.1 Period of Performance The effective date of this Agreement is the first date upon that it has been signed by all parties. 10.2 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. 10.3 Amendments This Agreement may be updated, modified, or refined only by the express written consent of all Parties. 10.4 Funding The Parties agree to make every appropriate effort to secure the funding necessary to carry out the commitments set forth in this agreement. 10.5 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 County, and the MBPU in this Agreement. Unless otherwise expressly agreed through written amendment approved by all Parties, the State, County, and MBPU shall have no further obligations under this Agreement if any provision of this Agreement is found by a court of the State or the United States to be in violation of state or federal law. National Marine Fisheries Service United States Fish and Wildlife Service Washington Department of Fish and Wildlife Washington Department of Ecology Governor’s Salmon Recovery Office Okanogan County Commissioner, Dist. 1, Dist. 2, Dist 3 Methow Basin Planning Unit Appendix 1: Early Action commitments by WDFW for correction of fish screens in the Methow River Basin. The completion of these projects depends on funding, logistics, weather, legal issues, permitting/access agreements, and cooperation of the facility owners and water users. PROJECT STATUS Barkley (Methow R.) Completed summer 98, On line 99 irrigation season, tuneup complete fall 2000 (legal issues), Cap funded Chewuch (Chewuch R.) Completed fall 98, tuneup completed, Cap funded Larson Ditch (Libby Ck) Completed spring 99, Cap funded, owner cost-share Wolf Cr. Rec. Dist (Wolf Cr.) Completed spring 99, did not divert until spring 00 tuneup complete 5/31/00, Owner cost-share, SRFB EI 75 K, NMFS 25 K Buttermilk (Buttermilk Cr.) Completed summer 99, tuneup complete 5/31/00, (*) GSRO 17.5 K, NMFS 11.5 K, owner cost-share, (IAC not used) Eight Mile (USFS, Eight Mile Cr.) Completed spring 99, USFS funded Twisp Power (Twisp R.) Completed spring 00, tuneup complete by 5/31/00, SRFB EI 80 K , NMFS 40 K Beaver Ck Basin (Beaver, Frazer,StorerCks) IAC contract extension to 10/31/00, 50% complete, SRFB EI 100 K, Proviso 50 K Fulton (Chewuch R.) Complete spring 00, tuneup complete fall 00, SRFB EI 100 K, NMFS 50 K, SRFB EARLY 2000 33.5 K, NMFS 16.5 K Twisp Airey (Twisp R.) Conversion to pump, complete spring 00,$30k GSRO Funds, Cap Sup 25 K, tuneup complete Sept 00 Skyline (Chewuch R.) Design stage, scheduled construction summer 00, funded SRFB Early 2000 100 K, NMFS 40 K, Proviso 25 K Early Winters (Early Winter R.) Pre-design, scheduled construction fall 00, spring 01, funded SRFB Early 2000, 100 K, NMFS 36.5 K, Proviso 14.5 K McKinney Mtn. (Methow R.) Scoping stage, Scheduled spring 01, Cap funded, Nothing firmed up yet Fog Horn (Methow R.) USFW responsibility, Scoping stage, Cap Sup 100 K, 16 K proviso, nothing firmed up yet Rockview (Methow R.) Agency Screen, New mesh 00, meets criteria, 120 K proviso, pre-design 01 Kumn Holloway (Methow R.) Re-screened with 3/32 perforated plate 99. meets current criteria, 20 K proviso, pre-design 01 *SRFB EI = Salmon Recovery Funding Board, Early Implementation (5595) GSRO = Governors Salmon Recovery Office+ Methow Basin Planning Unit Meetings: For period: June 27-July 18 Planning Unit meeting: July 5; 6-9 p.m. Twisp Forest Service meeting rm. Next NMFS negotiation mtg: July 6; 9 a.m.-3 p.m. Twisp Forest Service conf. rm. Planning Unit public meetings: July 11; 7 p.m. Winthrop Barn July 12; 7 p.m. Mazama Community Center July 13; 7 p.m. Twisp Grange July 18; 7 p.m. Methow Community Center Subcommittee meetings: None scheduled Next Steering Committee mtg: July 12; 9 a.m.-12 p.m. Winthrop Forest Service Opinion | Sports |
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