LUTC PKT 06-26-2000June 26, 20001:.
5:30 pm .
City of Federal Way
" City Council
Land Use/Transportation Committee
City Hall
Council Chambers
2.
3.
4.
MEETING AGENDA
CALL TO ORDER
Approval of Minutes of the June 12, 2000, Meeting
PUBLIC COMMENT (3 minutes)
BUSINESS ITEMS
A. International District
B. City Center/Downtown Gateway Signs
C. Freeway Signage
D. Olytnpic Pipeline Safety Consortium -
Interlocal Agreement
E. Endangered Species Act
Info
Action
Info
Info
Coates/10 min
Coates/20 min
Coates/10 min
Miller
Roe/30 min
FUTURE MEETING AGENDA ITEMS.
SWM/CIP West Hylebos Channel Stabilization
6. ADJOURN
Committee Members:
Phil Watkins, Chair
Jeanne Burbidge
Dean McColgan
City Staff:
Stephen Cleon, Director, Community Development Services
Sandy Lyle, Administrative Assistant
253.661.,II16
I:~LU-TRAN~\June 26, 2000 LUTC AGNdoc
June 12, 2000
5:30 pm
City of Federal Way .
City Council
Land Use/Transportation Committee
'....." ."~'~i;',":
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City coun ii
Council Chambers
MEETING SUMMARY
In attendance: Committee members Phil Watkins, Chair, Jeanne Burbidge and Dean McColgan; Deputy Mayor
Linda Kochmar; City Manager David Mosely; Director of Community Development Services Stephen Clifton;
Public Works Director Cary Roe; Assistant City Attorney Bob Sterbank; Deputy Director of Public Works Ken
Miller; Street Systems Manager Marwan Salloum; Senior Planner Margaret Clark; Traffic Engineer Rick Perez;
Administrative Assistant Sandy Lyle.
1. CALL TO ORDER
Chair Watkins called the meeting to order at 5:35 pm.
2. APPROVAL OF MINUTES
The minutes of the May 15, 2000, meeting were approved as presented.
3. PUBLIC COMMENT
There was no public comment on any item not included in the agenda.
4o
BUSINESS ITEMS
A. South 336th StreeffSR99 Street Widening Project Acceptance/Retainage Release - The Committee
m/s/c recommendation to the City Council to accept as complete the Street Widening Project at
South 336th and SR99 and to authorize release of retainage funds to R. W. Scott Construction, Co.
Final construction costs were $513,138.14 which is $26,065.03 below the approved construction
contract budget of $539,203.17.
Starlake Drainage - On May 16, 2000, the City Council authorized the bidding of Star Lake Road
Drainage Improvements and Water Main Replacement Project. The total project budget is
$1,477,554 funded by Surface Water Management Funds and the Highline Water District. Ten
bids were received, the lowest of which was Robison Construction, Inc., in the amount of
$973,892.80. The Committee m/s/c recommendation to the City Council to approve a contract
with Robison Construction and to approve a 10% contingency in the amount of $97,380.28.
2001-2006 Transportation Improvement Plan - The Committee asked questions and discussed the
2001-2006 Transportation Improvement Plan (TIP) and Arterial Street Improvement Plan (ASIP).
They considered several options for solving some of the City's worst traffic problems at SR18
(South 348th Street) and SR161 (Enchanted Parkway South/16th Avenue South), South 272~a Street
at I-5 Ramps, and the proposed 12th Avenue SW extension from SW Campus Drive to SW 344th
Street.
SR99(~ South 330th Street Bid Award - Totem Electric, Inc., of Tacoma was the low bidder on the
traffic signal and sidewalk improvement project at South 330th Street at SR99 with a bid of
$238,079.65. Revised construction costs of $318,808 reflect an increase in the approved estimate
in December 1999 ($308,000) due to increased costs of Right of Way acquisition and increased
costs of project design. The increased costs remain within the total project budget of $320,000.
The Committee m/s/c recommendation to the City Council to approve the bid award.
Draft Comprehensive Plan 1999 Amendments - The Committee discussed the 1999
Comprehensive Plan Site Specific Amendments. The Planning Commission recommended
o
°
approval of requests # 1 and #2. Request # 1 relates to the Zaran Sayre property south of South
305th Place and east of Pacific Highway. The request included a change to the comprehensive
plan designation and zoning of .27 acres from Multifamily and RM 1800 (one unit per 1,800
square feet) to Community Business and BC zoning. Request/t2 was to change the
Weyerhaeuser/Federal Way Fire Department property, 20.8 acres north of South 320th Street and
east of I-5, from comprehensive plan designation and zoning of Multifamily and RM 3600 (one
unit per 3,6000 square feet) to Office Park and OP zoning. The Weyerhaeuser property (west
19.67 acres) is presently governed by a Development Agreement, which limits development to 82
residential units. The Planning Commission recommended denial of the third site-specific request
regarding the Velasco property, .75 acres west of the Hoyt Road SW and SW 340t~ Street
intersection, following the recommendation of the Planning Commission. Sally Ramos, agent for
Dr. Velasco, was asking to change the comprehensive plan designation and zoning from Single
Family High Density and RS 9.6 (one unit per 9,600 square feet) to Office Park and Professional
Office. The Committee decided to adjourn further discussion on the 1999 Comprehensive Plan
Amendments until future meetings. Chapters I, 2, 4, 5 will be reviewed at the July 10, 2000,
meeting. Chapters 3 and 6-10 will be discussed at the July 17, 2000, meeting.
FUTURE MEETINGS
The next meeting will be held in Council Chambers at 5:30 pm on June 26, 2000.
ADJOURN
The meeting adjourned at 7:45pm.
I:~LU-TRANS~Iune 1200LUTC sum.doc
DATE:
TO:
VIAl
FROM:
SUBJECT:
June 15, 2000
Phil Watkins, Chair
Land Use and Transportation Committee
David M~~anager
Debra Coates, Economic Development Executive
International District Gateway Entry
Background:
October 7, 1997 Federal Way City Council approved the Image and Downtown Revitalization
Program. One of the goals adopted was: create distinct districts within the City Center that are
inviting to residents and visitors, defining roles and characteristics of each district. The
International District had already been naturally created between 312t~ and 316t~, immediately
east of SR99, by virtue of the existing mix of retail business.
In 1998 the Chamber of Commerce was awarded CDBG funding to begin developing and
enhancing an International District. A request for additional CDBG funding in 1999 was
successful, and the International District now has been awarded $173,000 for the creation of a
gateway, pedestrian paths, a pocket park and related pedestrian amenities. Elements of the
theme and gateway will be woven throughout the project.
Through an RFP process, a landscape design contract was awarded to ESM Consulting
Engineers. The preliminary design is complete and verbal approvals have been received from
the property owners. Easement language is forthcoming from the city's legal department.
Simultaneous with the finalization of the easements, an RFP will be posted for the construction
phase of the project. Grant monies must be expended not later than December 31, 2001.
To assist in funding the crucial gateway entry component of this project, a Neighborhood Grant
of $2,500 had been requested and was awarded, matched by a check from the Franciscan
Foundation. The Arts Commission published an RFP for a public artist to create the gateway,
and Mauricio Robalino was selected. Elements of the gateways will be incorporated into the
sidewalks, benches and lighting. The artwork will be sensitive to depicting the 'international'
theme.
June 15, 2000
Page 2
The gateway art will be set in the public fight-of-way along SR99 and is being incorporated into
the drawings for the frontage improvements. There will be two differing pieces to the gateway,
which will be installed between the old and new Indoehine buildings in the sidewalk. The
gateway leads to a path that moves toward the pocket park. The pocket park is the large grassed
area at the base of the school district administration building, which connects to the sidewalks at
WalMart, promoting pedestrian safety.
The artist is completing three alternatives for committee review. These alternatives will be
presented to committee the on the 26th. The Oversight Technical Committee and Oversight
Committee are requesting a recommendation from LUTC.
Committee Action Requested:
1) Review the artists renderings and select the idea (theme) that will be carried from the
gateways throughout the district.
2) Place on the Council's consent agenda approval the meeting of July 18
ll]
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I
Federal Way
~e[co~ 5rou
Freeway Signage
There are no packet attachments for this
agenda item.
CITY OF~
DATE:
TO:
FROM:
VIA:
SUBJECT:
June 26, 2000
Phil Watkins, Chair
Land Use and Transportation Committee
Ken Miller, Deputy Director of Public Works
David H, Moseley, City Manager
Interlocal Agreement Establishing the Washington City and County
Pipeline Safety Consortium
BACKGROUND
The Olympic Pipeline Company operates a fuel pipeline system that runs from Ferndale to Portland and pipe
diameters range from six inches to 20 inches. The pipeline carries diesel, gasoline, and jet fuel from the
refineries up north to delivery points in Seattle, Renton, Seatac, Tacoma, Olympia, Vancouver, and Portland.
The Olympic Pipeline Company is owned by Equilon, Texaco, Arco, and GATX Terminals and is managed by
Equilon under a contract expiring .luly ist. On .lune 10, 1999 the pipeline ruptured in Bellingham leaking
approximately 229,000 gallons of gasoline, the resulting fire killed three people.
The pipeline that runs through Federal Way is 14-inch diameter steel with a wall of thickness of 0.281 inches
and was constructed in 1965. :[t enters the City along the BPA easement north of S. 320th Street just east of
:[-5, runs south on private property along the east side crossing several city streets and continuing on to
Portland.
ZNTERLOCAL AGREEMENT
in response to the recent problems within the Olympic Pipeline Company, a group of cities and counties along
the pipeline corridor have formed a Safety Consortium. Currently, the Consortium consists of Bellevue,
Redmond, Renton, Marysville, Thurston County, Tumwater and Bellingham. The cities of Seattle, Kent,
Seatac, and Pierce County are reviewing the Tnterlocal Agreement and considering joining the Consortium.
The Interlocal is intended to provide a coordinated response and unified voice on pipeline safety issues.
Shared resources will facilitate the hiring of independent experts to review operations and safety action plans,
as well as preventing the duplication of work by cities. Each principal member shall make an initial $5,000
annual contribution. Future contributions by principals are only obligated upon ratification by the respective
legislative body. The general membership shall approve the budget and have final decision making on the
work plan. The work plan will set the budget and determine the member's future contribution. Each principal
member gets one vote and actions require a 70% affirmative vote of those present.
STAFF DZRECTZON
Staff is requesting direction to determine whether the City of Federal Way is interested in becoming a
member of the Pipeline Safety Consortium. :[f the City wishes to become a principal member, staff would
request the approval of the $5,000 expenditure for the City's annual contributionand appointa representative
and an alternative representative to vote on issues before the General Membership. Future yearly costs could
increase depending upon the work plan approved by the members. The City could withdraw from the
Consortium at any time.
KM/~
Attachments
k:\lutc\2000\062600 interlocal pipeline safety consortium.doc
INTERLOCAL AGREEMENT ESTABLISHING THE
WASHINGTON CITY AND COUNTY PIPELINE SAFETY CONSORTIUM
THIS AGREEMENT is entered into by and between the undersigned cities and
counties. This Agreement is made pursuant to the Interlocal Cooperation Act, Chapter
39.34 RCW, and has been authorized by the legislative body of each jurisdiction.
WHEREAS, concern about pipeline safety has been expressed by the member
cities and counties; and
WHEREAS, Cities and Counties along the Olympic Pipeline corridor have a
common goal of ensuring the safety of their communities; and
WHEREAS, Cities and Counties seek independent, expert third party
assessments of the condition of the Olympic Pipeline and its potential hazards; and
WHEREAS, Cities and Counties desire legal analysis of the pending pipeline
safety legislation at the state and federal level and assistance in developing a model
franchise;
WHEREAS, Cities and Counties desire expert third party analysis of the
procedures required to maximize the safety of the pipeline; and
WHEREAS, Cities and Counties desire a unified voice relating to pipeline safety
issues where Olympic Pipeline Facilities are located; now, therefore,
The City and County signatories agree as follows:
Establishment of the Washinqton City and County Pipeline Safety Consortium. There is
hereby created a city and county consortium hereinafter called the Washington City and
County Pipeline Safety Consortium (the Consortium). The parties hereto each hereby
task the Consortium with the responsibility for achieving the following goals:
· Provide a coordinated response for member Cities and Counties on certain
issues related to fuel pipeline safety in general and the activities of Olympic Pipe
Line Company in particular;
Obtain expert independent analysis and monitoring of the Olympic Pipeline
Corridor Safety Action Plan so as to ensure it provides the degree of safeguards
and security that our communities demand and deserve;
3. Identify deficiencies in Olympic Pipeline's Pipeline Corridor Safety Action Plan;
Identify steps Olympic Pipeline should take before re-starting the flow of product
through its pipeline;
5. Provide advocacy and public relations services on behalf of cities and counties;
10.
11.
Monitor franchisee compliance in jurisdictions along pipeline corridors;
Coordinate signage and activity within pipeline corridor right of ways;
Analyze and provide comment on federal and state legislative efforts with regard
to pipeline safety;
Work cooperatively with other groups and governments mutually interested in
pipeline safety;
Work directly with the State of Washington and any state task force established
to examine pipeline safety;
Work to meet other goals as defined by the membership.
1. Definitions.
A. Principal. A Principal is a City or County which has accepted the terms of,
and is a party to, this Interlocal Agreement and has paid its share of the costs of the
Consortium. The initial Principals to this Agreement are the undersigned cities and
counties. Principals will receive services as offered by the Consortium according to
such terms and conditions as may be established.
B. General Membership. The General Membership shall consist of all the
voting representatives of the Principals.
C. Voting Representatives. Each Principal will designate one representative,
and one alternate representative to vote on issues before the General Membership.
D. Alternate Representatives. Each Principal shall be entitled to designate
one alternate representative who shall serve on behalf of the voting representative
during his or her absence or inability to serve.
E. Administrator. The City of Bellevue shall be designated as the
Consortium's Administrator. Principals shall pay to the City of Bellevue the agreed upon
Financial Contribution.
F. Financial Contribution. Each Principal shall make an initial $5,000
Annual Financial Contribution. Additional Financial Contributions shall be provided in
the future on a basis and in an amount agreed by the General Membership. A Principal
shall be obligated as to any future Financial Contributions only upon ratification by its
respective legislative body. A Principal shall be allowed to withdraw from the
Consortium and not incur any additional financial obligation if its legislative body
decides against a future Financial Contribution.
2
G. Executive Board. The Executive Board shall be composed of seven
representatives of 7 different Consortium members, appointed by their jurisdictions.
The initial slate of Executive Board Members shall include a member from each of the
followin9 jurisdictions: The cities of Bellevue, SeaTac, Renton, Redmond, Bellingham,
Tumwater, and the county of Thurston. The initial Board shall serve for a period of one
year from the effective date of this Agreement. Subsequent Boards shall consist of
seven members elected by the General Membership from amon9 the representatives
appointed by their respective jurisdictions.
2. Roles
A. General Membership. The General Membership shall approve the budget
and have final decision-making authority to approve the final budget and the work plan
of the Consortium. The General Membership shall approve the members of the
Executive Board.
B. Executive Board.
1.) Chair. The Chair of the Executive Board shall be elected by the
members of the Board from the Board membership. The Chair of the Executive Board
shall process issues, organize meetings and preside over meetings of the Board, and
shall have no other powers than those enumerated here.
2.) Powers of the Executive Board. The Executive Board shall meet
as often as it deems necessary and shall have the following powers:
(a.) To recommend periodic budgets and work plans for the
Consortium for approval by the General Membership;
(b.) To establish policies to carry out the work plan approved by
the General Membership;
(c.) To establish policies for expenditures of budgeted items for
the Consortium;
(d.) To hold regular meetings on such dates and at such places
as the Board may designate and call for meetings of the General Membership;
(e.) To authorize the Administrator to enter into agreements with
other federal, state and local agencies, and private entities to receive grants and funds,
and other agreements for services.
C. Administrator. City of Bellevue, as Administrator, shall contract for
services as necessary to accomplish the purposes of the Consortium under this
Agreement, subject to the approval of the Executive Board; establish a special fund or
funds as authorized by RCW 39.34.030; col.lect from the Principals Financial
Contributions due to Bellevue as Administrator for the Principals; and reimburse its
Principals. In addition, the Administrator will provide for secretarial and other
administrative support for the Board as the Board deems necessary. The Administrator
shall not be reimbursed for expenditures made prior to the effective date of this
Agreement.
3
3. Other Pertinent Matters
A. Proportionality of RepresentationNotinq. Each Principal shall be entitled
to one vote on all actions required to be approved by the General Membership and
each Principal which has a representative on the Executive Board shall be entitled to
one vote on all actions required to be approved by the Executive Board.
B. Votin.q Percentaqe Requirements. All actions required to be approved by
the General Membership or the Executive Board shall require approval of 70% of the
vote of those present. Dissenting comments shall be recorded.
C. Quorum. A quorum at any meeting of the General Membership or the
Executive Board shall consist of the voting members or Board members (or alternates)
who represent a simple majority of the General Membership or Executive Board
membership.
D. Additional Principals. The Executive Board may, by vote, accept new
Principals who become parties to this Agreement and who have paid the agreed-upon
amount as the new Principal's share. The Executive Board may, by vote, accept new
Principals to the consortium by approving the proposed new Principal's signed
agreement.
E. Finance and Budqet.
1.) Acceptance of Funds. The Administrator is hereby authorized to
accept all Financial Contributions of the Principals allocated to the Consortium and any
federal, state or private grants in order to accomplish the purposes of this Agreement
and Chapter 39.34 RCW.
2.) Budget. The Executive Board shall draft a proposed initial budget
for the remainder of the current calendar year and present it to the General
Membership. Thereafter, the Executive Board shall draft proposed period budgets as
it deems appropriate. The General Membership shall review and recommend revisions
to the draft budgets as it deems appropriate. The Executive Board shall revise the draft
budgets and shall present them for a vote of the General Membership. The budgets are
adopted when approved by the General Membership.
3.) Delinquencies. A Principal who is six months delinquent in
payment shall be considered to have withdrawn from the Consortium. Withdrawal does
not extinguish the obligation to pay for services rendered.
4.) Use Guidelines. The Consortium may use any available funds for
any purpose authorized by this Agreement, and included in the work plan adopted by
the Consortium. Additional projects and expansion of the scope of work are
authorized, for purposes of this Agreement, when approved and funded by all the then
current Principals or through any grants provided the Consortium. Consortium funds
will not be used to pay for any City or County staff time.
4
F. Intergovernmental Cooperation. The Consortium shall cooperate in all
practical and available ways with local, state and federal government agencies so as to
maximize utilization of grant funds and to enhance the effectiveness of operations and
to minimize costs.
G. Duration. This Agreement shall continue in effect for at least two years
from creation of the Consortium. Additional one-year renewals shall be approved by
agreement of the Principals. Any Principal may withdraw from this Agreement by giving
60 days written notice to the Executive Board of its intention to terminate. A Principal
shall not be entitled to reimbursement for its financial contributions to the Consortium.
A Principal who withdraws shall hold the remaining Principals harmless against any
resultant increased costs allocated to them, for a project or contract approved by the
General Membership before its withdrawal.
This Agreement shall be effective until terminated as provided herein.
This Agreement may be terminated at any time by agreement of Principals holding at
least 70% of the vote of all the Principals hereto. Upon termination of this Agreement,
any assets acquired during the life of the Agreement or any financial contributions
remaining shall be disposed of in the following manner:
1 .) All property contributed without charge by each Principal shall
revert to the contributor;
2.) All property purchased after the effective date of this Agreement
shall be distributed based on the percentage of the total annual charges assessed by
the Executive Board during the period of this Agreement and paid by each Principal;
3.) All unexpended or reserved funds shall be distributed to the
Principals based on their financial contribution on a pro rata basis.
H. Hold Harmless. Except for acts or omissions which are dishonest,
fraudulent, criminal or malicious, any loss or liability resulting from the acts or omissions
of the Executive Board, or Administrator while acting within their scope of authority
under this Agreement shall be borne by the Consortium. If a claim, demand, or cause
of action arises from any other negligent act or failure to act, or intentional wrongful act
of one of the Principals or its agents or employees, that Principal shall hold the
Consortium and other Principals harmless except to the extent that the harm
complained of arises from the negligence or other fault of another Principal; provided,
that "Fault" as herein used shall have the same meaning as set forth in RCW 4.22.015.
I. Insurance. The Consortium may obtain and provide insurance for the
Executive Board and the Administrator for coverage consistent with the terms of this
Agreement.
J. Amendments. This Agreement may be amended by written agreement of
the legislative bodies of all the Principals hereto.
5
K. Severability. The invalidity of any clause, sentence, paragraph,
subdivision, section or portion of this Agreement shall not affect the validity of the
remainder of the Agreement.
L. Effective Date. The effective date of this Agreement shall be the date of
filing with the appropriate County Auditors, the Secretary of State, and the Clerk of each
Principal.
IN WITNESS WHEREOF, this Agreement has been executed by each party on the
date set forth below:
CITY OF BELLEVUE
Approved as to Form:
Chuck Mosher
Mayor
Lori Riordan
Assistant City Attorney
Date: Date:
COUNTY OF
Approved as to Form:
Date:
CITY OF
Date:
Approved as to Form:
Date: Date:
CITY OF
Approved as to Form:
Date:
Date:
CITY OF
Approved as to Form:
Date:
Date:
CITY OF
Approved as to Form:
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CITY OF
Approved as to Form:
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CITY OF
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7
CITY OF ~
DATE:
TO:
FROM:
VTA:
SUB.1ECT:
.lune 26, 2000
Phil Watkins, Chair
Land Use and Transportation Committee
Cary M. Roe, Public Works Director ~
David H. Moseley, City Manager ~
Endangered Species Act
The purpose of this memorandum is to provide the City Council with information regarding the
Endangered Species Act (ESA). The memorandum consists of four distinct sections including a
background section, potential effects of ESA on Federal Way, legal liability, and finally a
recommended "Next Steps" section. The materials provided are for information only, and staff is
not requesting any formal action at this time other than confirmaUon of, or revision to, staffs
recommended "Next Steps."
I. Background
The following background information is intended as a general overview of the potential regulations,
programs, proposals, and activities associated with the ESA. Because it represents, in part, the
compilation of summary materials provided by others, it should not be considered the final product
or position of City staff. As discussed below, further analysis and recommendation by staff are
forthcoming in the near future.
A. The Endanqered Species Act (ESA)
Congress originally passed the ESA in 1973 with the express purpose of "provid[ing] a means
whereby the ecosystem, upon which endangered and threatened species depend, may be
conserved," through the development of a program to protect such endangered and threatened
species, and through the enforcement of various treaties and conventions within the Act, which set
forth national and international standards. 16 U.S.C. § 1531(b). The United States Supreme Court
has described the ESA as "the most comprehensive legislation for the preservation of the
endangered species ever enacted by any nation." TVA v. Hill, 437 U.S. :~53, 180, 98 S.Ct. 2279,
2294, 57 L. Ed.2d 117 (1978).
B. How Does the ESA Work?
1. "Listinq"a Species Under the ESA
Endangered Species Act
LUTC - June 26, 2000
Page 2
The ESA requires the Secretary of the Interior to promulgate regulations listing those species that
have become "endangered" or "threatened." 16 U.S.C. § 1533(a)(1); 16 U.S.C. § 1532(15). An
"endangered species" is "any species which is in danger of extinction throughout all or a significant
portion of its range." A "threatened species'; by contrast, is "any species which is likely to become
an endangered species within the foreseeable future .... "16 U.S.C. 1532(6), (20).
Concurrent with a listing of a species as "endangered" or "threatened," the Secretary is also
required to designate any habitat of the listed species considered to be "critical habitat". Critical
habitat means the area occupied by the listed species, as well as "specific geographic areas outside
the qeoqraphical area occupied by the species, if determined to be essential for the conservation
of the species.
Once a species is listed, the protections afforded by the ESA and its regulations are triggered. The
most important of these protections are summarized below
2. No "Take" of An "Endanqered" Species
Section 9 of the ESA makes it unlawful for any person to "take" any "endangered"species. "Take"
is defined broadly, to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct." The Secretary of the Interior, by regulation,
has further defined "harass" and "harm". "Harm" means "an act which actually kills or injures
wildlife," but this may include"significant habitat modificaUon, or degradation where it actually kills
or injures wildlife by significanUy impairing essential behavioral patterns, including breeding, feeding
or sheltering." "Harass," by contrast, means "an intentional or negligent act or omission which
creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt
normal behavioral patters which include, but are not limited to, breeding, feeding or sheltering."
50 C.F.R. § 17.3 (1997). Courts have said that the prohibition on "take"contemplates the actions
of individuals who directly take a species, the actions of a third party authorized by the government
to engage in activity resulting in a taking and, in some instances, the actions of the government in
permitting third parties to engage in activities resulting in "take."
In addition to the prohibition against"take," the ESA also prohibits import or export of listed
"endangered" species, possession, sale or transport of any illegally taken species, or the violation
of any regulation of the Secretary of the Interior with respect to the listed species.
3. Protective Requlations for "Threatened" Species: The "4(d) Rule"
"Threatened" species are not automatically protected from "take" in the same way that
"endangered" species are. Instead, a section of the ESA, Section 4(d), requires the Secretary to
issue regulations deemed "necessary and advisable to provide for the conservation" of the species
listed as "threatened." Regulations adopted under this section of the ESA are known as "4(d)
Rules". The National Marine and Fisheries Service ("NMFS"), a branch of the National
Oceanographic and Atmospheric Administration ("NOAA'~ within the Department of Commerce, has
responsibility for development of listed salmonid species.
4(d) rules can include a prohibition on "take" of the "threatened" species, thus extending to
"threatened" species protections that would otherwise apply only to "endangered" species. 16
U.S.C. § 1533(d). A 4(d) Rule may also:
Endangered Species Act
LLFFC - .lune 26, 2000
Page 3
· Set specific prohibitions on take of threatened species
· Describe actions that lead to take; and
· Delineate specific activities and implementation conditions that quality for limitations
on or exemptions from take prohibitions listed under section 9 of the ESA.
A violation of a 4(d) regulation is also unlawful under the ESA. 16 U.S.C. § 1538(a)(1)(G).
4. Interaqency Cooperation to Protect Listed Species
In addition to the prohibitions against "take" and the protections contained in 4(d) rules, the ESA
also requires that all Federal agencies "insure that any action authorized, funded, or carried out by
such agency is not likely to jeopardize the continued existence of any endangered or threatened
species, or result in the destruction or adverse modification" of the listed species' critical habitat.
The agencies fulfill this duty, in part, by requiring the applicant for any federal permit, or the
recipient of any federal funds, to prepare a "Biological Assessment" ("BA'~ if the applicant or
recipient has reason to believe that a listed spedes "may be present in the area affected by [the]
project and that implementation of such action will likely affect" the listed species. 16 U.S.C.
1536(a)(3). The agency then consults with the Secretary to determine whether the proposed action
or commitment of federal funds will jeopardize the continued existence of the species or result in
the adverse modification of its critical habitat. City of Federal Way Capital Improvement Projects
that are funded even partially with Federal Grants have previously triggered the Biological
Assessment requirement, which has in the past and is likely in the future to delay projects.
5_. Permission for "Incidental" Takinq of Listed Species
The ESA does not prohibit all taking of listed species. Section 10 permits allows for voluntary
agreements between the Federal Listing Agency and non-Federal applicants permitting an incidental
"take", provided that the applicant prepares and the agency approves an Habitat Conservation Plan
(HCP) that provides mitigation measures to insure the species is preserved.
C. ESA Listinq of Puqet Sound Fish Species
On March 24, 1999, the National Marine Fisheries Services, (NMFS), issued a final determination and
listed the Evolutionary Significant Unit (ESU) of the Puget Sound Chinook salmon as "threatened"
under the ESA. That listing officially became effective sixty (60) days later on May 24,1999. The
ruling affects the future Puget Sound region and marks the first time an endangered or threatened
species listing will directly impact an urban area.
The listing came after a comprehensive status review of West Coast Salmon, which documented that
more than 75% of Pacific Salmon populations were severely depleted and at some risk of extinction.
In addition,-the health of salmon stocks worsened the further south they were found along the
Pacific Coast, with the trend being even worse in areas heavily influenced by dams and urban
development. The best available information suggests that freshwater habitat loss and modification
has been the most significant cause of decline, though harvest, hatchery impacts and forest
practices have also been significant. Addressing the restoration and recovery of habitat will be the
critical focus of local, state and federal governments.
Endangered Species Act
LUTC - 3une 26, 2000
Page 4
In addition to the Chinook Salmon, the Bull Trout has also been listed as threatened under the ESA.
The U.S. Fish and Wildlife Service (USFWS) is the Federal agency that has the responsibility for
issuing a 4(d) Rule to protect the Bull Trout.
D. 4(d) Rule for Puqet Sound Chinook Salmon
A draft 4(d) Rule for seven endangered and threatened Evolutionarily Significant Units (ESU) of
West Coast Salmonoids was published by NMFS on January 3,2000. ]:t extended the prohibition on
"take" normally applicable to "endangered" species to the salmon species listed as "threatened,"
including the Puget Sound Chinook.
Typically, 4(d) rules are prescriptive, in that they direct individuals and local governments to avoid
prohibited "takes." Here, however, in what federal regulators described as "innovative," the draft
4(d) salmon rule also included exemptions from the "take" prohibition, for 13 categories of actions.
i~n essence, rather than tell us "don't"take" listed species," the regulaUons say, "if you do X, NM FS
will not sue you even if your actions result in a "take," because NMFS has essentially determined
that the likelihood of "take" in such instances is minor or only incidental.
The most significant of the 13 categories cover certain development activities within urban areas.
This exemption would provide protection for local ordinances approved by NMFS as being
adequately protective of the listed Chinook species. In order for NMFS to come to this conclusion,
the local ordinance must address 12 separate areas in sufficient detail and in a manner that assures
that urban development will contribute to conservation of the listed salmon. Those categories
require that the local ordinances accomplish the following:
· Avoid inappropriate areas such as unstable slopes, wetlands, areas of high
habitat value, and similarly constrained areas;
· Avoid,,stormwater discharge impacts to water quality and quantity, or to the
hydrograph of the watershed;
· Require adequate riparian buffers around all perennial and intermittent streams,
lakes or wetlands;
· Avoid stream crossings by roads wherever possible, and where one must be
provided, minimize impacts through choice of mode, sizing, placement;
· Protect historic stream meander patterns and channel migration zones; avoid
hardening of stream banks;
· Protect wetlands and wetland functions;
· Preserve the hydrologic capacity of any intermittent or permanent stream to pass
peak flows;
· Landscape to reduce need for watering and application of herbicides, pesticides
and fertilizer;
· Prevent erosion and sediment runoff during construction;
· Assure that water supply demands for the new development can be met without
impacting flows needed for threatened salmonids either directly or through
groundwater withdrawals, and that any new water diversions are positioned and
screened in a way that prevents injury or death of salmonids;
· Provide all necessary enforcement, funding, reporting, and implementation
mechanisms; and
Endangered Species Act
LUTC - June 26, 2000
Page 5
· Assure that the development complies with all other state and Federal
environmental or natural resource laws and permits.
· NMFS announced that the final 4(d) Rule was published on .lune 21, 2000, but will not go into
effect until December (except for provisions concerning, steelhead). The final 4(d) rule was not,
however, available on the NMFS website for review as of this writing. Press coverage indicates that
the final rule follows the pattern set out in the draft rule, in terms of allowing local governments to
draft rules for submission to NMFS for subsequent approval. Three environmental groups have
already issued notice stating their intention to sue, based on their belief that the 4(d) rules are
insufficiently protective of salmon.
E. Td County Framework-4(d) Rule Proposal for Chinook Salmon
The Tri-County Framework is a proposal initiated by County executives from Snohomish, King, and
Pierce Counties to develop a local salmon recovery plan that meets Federal requirements, recovers
salmon runs and maintains our local economy· The Tri-County Framework is intended to provide
a "global" approach for meeting the 4(d) Rule's "urban development" component summarized
immediately above. The three counties would seek NMFS approval for the Tri-County Proposal,
thus eliminating the need for individual cities to seek NMFS approval of individual development
regulations· The Tri-County Proposal essentially tracks the twelve separate areas of urban
development set out in the NMFS 4(d) Rule, with minor variations. The list of programs or planks
covered under the TH-County Framework includes:
· Road maintenance
· Storm water
· Riparian Management Areas
· Watershed Assessment
· Water Resource Inventory Area (WRIA) Planning
· Code Enforcement Training
· Land Use
· Monitoring and Adaptive Management
· Shoreline Management
· Habitat Acquisition an Restoration
· Wastewater Effluent
· Bio-solids Management
Endangered Species Act
LUTC -]une 26, 2000
Page 6
The Tri-County Framework Proposal consists of two phases for recovery of the species. Phase !
starts when the final 4(d) Rule for the Puget Sound area goes into effect. During the five years of
Phase ! cities and counties that participate in the Proposal must protect and improve habitat through
planning efforts, programs, regulations and capital investments
In the first two years of Phase I, cities and counties will complete an "Early Action Program" that
includes:
· Improved land use regulations
· A comprehensive storm water program
· Specific road maintenance procedures
· Acquisition and restoration of habitat
· Scientific watershed assessments, and
· First steps towards development of watershed-based salmon conservation plans.
Tn the last three years of Phase 1, cities and counties must finish the watershed plans.
The "improved land use regulations" have been the most controversial part of the Tri-County
discussions. Three options have been discussed: adopUon of fixed regulations set by the three
counties; adoption of site specific regulations, with a habitat evaluation and mitigation (this closely
resembles an "incidental" take permit process); and "programmatic regulations" similar to site
specific regulations, but for a larger geographic area or for a specific city program (e.g., park
maintenance). For the first option, fixed regulations, preliminary discussions have included the
concept of a Management Zone, within which regulaUons would apply for such things as setbacks,
vegetation coverage, impervious surface, and permitted and prohibited activities within the Zone.
The size of the Management Zone would vary depending upon the 'classification of the lake or
stream, but under the May, 2000 draft Tri-County Proposal, the "inner" MZ would range from 35 to
150 feet, including a "no touch" zone in which structures, machinery, and uUliUes would be
prohibited.
Phase I! starts at the end of the initial five year period and continues until the species is out of
danger (i.e., has been "delisted'~, or as long as the participating jurisdictions have committed to
implement the watershed plan and continue to comply with plan requirements.
!f the Tri-County Proposal is approved by NMFS, cities and counties that cannot complete the
requirements spelled out in the Tri-County Proposal might not receive any protection of the 4(d)rule
Presumably, however, a city or county could "opt out" of the Tri-County Proposal by adopting a
different set of regulations and still receive an independent 4(d) approval from NMFS.
It is suggested that in order to be covered by the Tri-County Proposal, cities and counties must
officially commit to the Early Action Program and sign agreements or pass legislation that bind them
to the provisions of the Framework. When complete, the Proposal will include a timetable for
completing the specified actions, a monitoring program, reporting procedures, and consequences
for failing to meet timelines. The completed Framework will also include a funding program and
formula for determining how much money a jurisdiction will need to carry out the early actions.
Tn its draft 4(d) Rule, NMFS indicated that the Tri-County Proposal would likely be incorporated into
the final 4(d) Rule. Given the recent announcement that the final Rule has been adopted, it is
unclear what status the Tri-County Proposal currently has.
Endangered Species Act
LUTC - June 26, 2000
Page 7
F. Reqional Interlocal Aqreements
A small policy group of inter-jurisdictional elected officials and staff led by King County and the City
of Seattle developed a model Interlocal Agreement (ILA) that provides for both a jurisdictional
response to ESA compliance as well as the general groundwork for Watershed/Water Resource
Inventory Areas (WRIA) planning. The proposed ILA's are intended to provide a mechanism and
govemance structure for the joint participation in and funding of WRIA based watershed plans for
the assessment, conservation, and restoration of fish habitat. (See attached draft 1LA and WRIA
map)
G. Urban Blueprint
Several cities along the I-5 corridor from Bellingham to Portland have joined forces in hiring a
consultant to pursue some discussions and options on behalf of the urban built environment.
Additionally, Seattle, Tacoma and Everett and their Ports have commissioned some work on an
alternate management zone approach. In contrast to the management team with NMFS, the
alternate approach may work to identify and prioritize ripadan zones in urban areas that have the
most potential for properly functioning conditions. The Urban Blueprint work is viewed as auxiliary
to the Tri~County efforts.
Suburban Cities Association (SCA) has been approached to join in the urban blueprint discussions
due to SCA's recent involvement with the Tri-County Steering Committee. Although there is no
requirement that SCA cities join the group and financially support the work, SCA is asking member
cities for input and/or commitment.
H. Suburban Cities Association (SCA) Activities
Suburban Cities Assodation (SCA) has entered into contracts with Earth Tech and AHBL Engineering
to attend the Tri-County negotiation meetings with NMFS and USFWS, track status of negotiations,
and prepare reports on the management zone and stormwater regulations. SCA entered into these
contractual arrangements because SCA itself or its member cities are not directly named to the Tfi-
County negotiating team. The two consultant contracts have proven to be helpful by allowing SCA
to have a presence at the negotiating team meetings, ability to get information directly without
having to rely on other participantthat may have a different agenda than SCA and finally the ability
to brief elected officials from SCA that now sit on the Tri-County Steering Committee.
The contracts are set-up on a work order basis with SCA taking responsibility for the first $10,000
of expenditures. Tn order to continue funding the consultant activities, SCA has requested direction
on an assessment of the SCA general member cities. The assessment ranged from $0.05 to $0.15
per capita, which result in an assessment to Federal Way of $3,845.58 to $11,536.50.
In addition to the above described consultant activities, SCA has also been involved with the
development of the proposed Regional Interlocal Agreements for WRIA/Watershed Plan
development.
Endangered Species Act
LUTC -.]une 26, 2000
Page 8
Potential Effects of ESA on Federal Way
The ESA and associated 4(d) Rule is very likely to have an effect on current City of Federal Way
codes and regulation, programs and activities, and long range planning. These areas of potential
impact are best described by dividing the :[2 programs or plank identified in the 4(d) Rule and the
Tri-County Proposal into three functional areas:
Land Use and Permittinq
· Shoreline Management Program
· Environmentally Sensitive Area Regulations
· Code Enforcement
Government Operations
· Stormwater Management Programs and Regulations
· Maintenance of Public and Private Infrastructure
· Habitat acquisition and Restoration
Long Ranqe Planninq and Evaluation
· WR1~A Planning
· Watershed Assessments
· Development and :Implementation of Watershed Plans
· Monitoring and Adoptive Management
Public Works, Community Development, and legal staff are currently in the process of evaluating
the above areas with respect to the City's current: 'codes, regulations, programs and planning
documents to better understand what changes or revisions will be necessary, as well as their
financial impacts. Upon completion of this analysis, staff will bring this information back to the City
Council for consideration and potential incorporation in the 2001-2002 biennium budget.
Endangered Species Act
LUT£ - June 26, 2000
Page 9
III. Confidential: Legal Liability Analysis
A. Leqal Obliqations: The Duty to Avoid "Take"
As discussed above, the ESA and the 4(d) Rule prohibit the take of a listed "threatened" species
like the Puget Sound Chinook. This includes avoiding "harm," or "harassment" of the species,
both of which are defined broadly.
A city may be liable for ESA violations in several ways. First, a city may be liable for a "take"
resulting from proprietary actions, such as City park or road maintenance, City management of
City parks or other properties, or construction of a city project. A city may also be liable if the
city permits or authorizes the activity that itself causes a "take." Examples of ESA liability, at all
levels of government, include the following:
Town liable for "take" of piped plover, where town's management of public/private beach
allowed SUVs to drive on beach, killing and/or harassing newly-hatched plover chicks (United
States v. Town of New Plymouth, 6 F. Supp. 2d 81 (D. Mass. 1998)
County liable for "take" of loggerhead turtles, where County failed to prohibit beach ddving or
artificial lighting that resulting in the death or harassment of turtles (Loggerhead Turtle v.
County Council of Vo/usia County, 148 F.3d 1231 (11m Cir. 1998)
State liable for "take" of "right" whales, where lobster fishing conducted under State-issued
permits resulted in death or injury to whales ($tahan v. 0oxe,.127 F.3d 155 (1~t Cir. 1997), cert.
denied sub. horn Coates v. Strahan, 119 S.Ct. 437 (1998)
Forest Service liable for "take" of rod-cockaded woodpecker, where Service's management of
timber stands allowed harm of birds (Sierra Club v. Yeutter, 926 F.2d 429, 438-39 (5m Cir. 1991)
Environmental Protection Agency liable for "take" of black-footed ferrets, where ferrets died from
ingesting strychnine bait and strychnine could only be distributed pursuant to the EPA's pesticide
registration scheme (Defenders of Wildlife v. EP,4, 882 F.2d 1294, 1301 (8th Cir. 1989)
State liable for "take" of Pal/la, where state's practice of maintaining feral goats and sheep in
palila's habitat harmed pal/la because sheep ate vegetation relied upon by pal/la (Pa#la v. Hawaii
Dept. of Land and Nat. Resources, 639 F.2d 495, 497-98 (9m Cir. 1981).
B. Forms of Enforcement; Remedies
1. NMFS Enforcement Action
Under 16 USC § 1540(a), the NMFS may assess civil penalties ranging from $500 to $25,000 per
violation regarding freshwater species, depending upon the nature of the violation. NMFS has
increased these penalties by 10 percent pursuant to the Federal Civil Penalties Inflation Adjustment
ACt for marine and anadromous species (e.g., the Puget Sound Chinook). See 61 Fed. Reg. 55093
(1996).
Endangered Species Act
LLFFC - June 26, 2000
Page 10
Under 16 USC § 1540(b), the Secretary may also seek cdminal penalties against any person
including fines of $25,000 to $50,000 and/or misdemeanor sentences up to one year, for knowing
violations of ESA.
Although the penalties authorized under the Act seem potentially sever, federal government suits
against local governments have been relatively rare, and the federal government has generally
sought injunctive relief (i.e., an order that the city or state fix the problem) rather than monetary
penalties, even where the local government action indicated at least some disregard for ongoing
"takes." There may be a variety of explanaUons for the federal government's apparent
disinclination to seek penalties, some of which may continue to be present, which would make
monetary liability seem unlikely. Given the place of salmon in the Pacific Northwest history, lifestyle,
and culture, however, possible federal claims for penalUes (and resultant financial exposure) cannot
be ruled out, particularly given the absence of judicial guidance concerning the types of situations
in which penalties are warranted and in what amounts.
2. Citizen Suits
The ESA authorizes private parties to bring certain types of enforcement action seeking injunctive
relief. This is likely to be the more common form of action against a jurisdiction engaged in an ESA
response program. Private citizens under the citizen suit provisions of the ESA cannot seek civil and
criminal penalties. See 16 U.S.C. §1540(g).
3. Standards for Injunctive Relief
In an injunctive action initiated by either the federal government or a citizens' group, the
standard for issuance of a preliminary injunction is the likelihood of success on the merits of the
ultimate claim. Although federal courts traditionally balance several factors before issuing an
injunction, including whether or not there will be irreparable harm and the extent of the public
~'itlterest, the ESA has removed some of the courts' traditional equitable jurisdiction. When
considering an injunction under the ESA: (1) the court lacks discretion to balance the parties'
interests; (2) any threatened harm is per se irreparable harm; and (3) the public interest always
favors the imposition of an injunction under the ESA. Loggerhead Turtle v. County ¢oun¢# of
I/o/u$/a County, 92 F.Supp.2d 1296, 130! (M.D. Fla. 2000).
To prevail in an injunction proceeding, the plaintiff must prove that the City has caused,
through action or inaction, the illegal taking of the Puget Sound Chinook, or that future takes will
occur if City management continues on its present course. Some courts hold that proof of a
taking requires a showing "that the alleged activity has actually harmed the species or if
continued will actually, as opposed to potentially, cause harm to the species. Town of New
P/ymouth, 6 F. Supp. 2d at 90. Others state that all that is necessary is for a plaintiff to "show
that violation of the ESA is at least likely in [the] future, or that a definite threat of future harm
to protected species exists. Loggerhead Tuft~e, 92 F.Supp. 130:[. In any event, a showing of
actual harm can also be made by proving that significant modification or damage to the habitat
of a threatened species is likely to occur so as to injure the species by modifying its essential
breeding, feeding or sheltering activities..rd. And, because "harassment" is included within the
definition of "take," liability can also be established by demonstrating that the species has been
harassed, that is, by establishing that "an intentional or negligent act or omission creates the
likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal
behavioral patterns" including breeding, feeding or sheltering. 50 C.F.R. § 17.3 (1997)
Endangered Species Act
LUTC - 3une 26, 2000
Page 11
(emphasis added). :It is not necessary to show that a regulatory program results in a
take in each and every instance; rather, "the future threat of even a single taking is
sufficient to invoke the authority of the Act.x Loggerhead Tuft~e, 92 F. Supp.2d at 1301
(bold added).
4. Extent of Potential Injunctive Relief
Currently, there is disagreement among courts and lawyers as to the extent of injunctive relief that
a court may order to remedy violations of the ESA. On the one hand, concerns for federalism
inherent in the 10t~ Amendment may prevent a federal court from ordering a local jurisdiction to
pass and enforce a specific piece of legislation. See, e.g., Loggerhead Turt/e v. County Counci/of
Vo/usia County, 92 F.Supp. 2d 1296, 1307 (M.D. Fla. 2000 )(Court declines to order county to
enforce State of Florida's model beach lighting ordinance, where County had already adopted
stringent beach lighting ordinance to address ESA concerns and US Fish and Wildlife Service had
not objected; Court concludes ESA may vest such power in courts but states that Court would not
exercise such authority without guidance from higher court).
Other courts have taken a more aggressive approach, ordering a local jurisdiction to insUtute an
outright ban on certain activiUes causing "takes," unless detailed protective measures specified by
the court were instituted, including use of protective buffer zones of at least 50 meters, or greater
if monitoring demonstrated necessary. See Town of New P/ymouth, 6 F. Supp.2d at 92-93 (town
ordered to ban all off-road vehicles from beach unless Town instituted specified measures, including
monitoring, 50-meter buffer zones, periodic beach closings during presence of flightless plover
chicks, and provision of documentation to the US Fish and Wildlife Service on a bi-weekly basis).
Still other courts have picked a middle approach, ordering the defendant government to develop and
prepare a proposal to restrict activities resulting in prohibiting "takes," after convening a working
group including the plaintiff citizens to discuss such mitigation measures. Strahan, 127 F.3d 158
(State of Massachusetts ordered to develop proposal to restrict, modify or eliminate the use of type
of fishing gear harming right whales, and to convene working group for discussions, including the
plaintiff). The appeals court upheld these remedies even in the face of vigorous challenge by the
defendants that the court lacked the authority to order such remedies..rd, at 168-17:1..
Given this variance in the extent of injunctive relief ordered in previous cases, remedies issued in
an injunction concerning salmon could include invalidation of an entire ordinance or regulatory
program, direction to adopt new legislation including particular features, and/or ongoing supervision
by either the court or a federal agency (NMFS), some combination of all three, or merely invalidation
of a regulation as applied to a particular project. Given the history of federal court injunctive
oversight of other matters (school desegregation, Iow income housing, and jail populations), judicial
oversight in any amount could be time-consuming and/or costly.
C. Conclusion
Municipal liability for monetary penalties under the ESA is probably unlikely, particularly if the City
adopts regulations intended to comply with the 4(d) Rule. Injunctive relief is the more likely remedy
to be faced. Analysis of the potential exposure to such litigation, however, must await analysis of
the final 4(d) rule, and the extent of potential changes necessary or desirable in light of the Rule.
Endangered Species Act
LUTC - .lune 26, 2000
Page 12
The extent of injunctive relief awarded in prior cases suggests that a proactive approach is prudent.
[Rest of Page Intentionally Left Blank]
Endangered Species Act
LUTC - .lune 26, 2000
Page 13
~V. Recommended Next Steps
Due to the complexity of the topic, sheer number of players and activities in the ESA arena,
structure and pace in which negotiation on the 4(d) Rule have taken place and the very recent
publication of the final 4(d) Rule on .lune 21, 2000, staff recommends the following next steps to
properly address this issue.
1. Develop a plan and schedule for periodic updates/presentations to City Council
2. Conduct detailed review of final 4(d) Rule
Perform detailed analysis of Federal Way codes, regulations, programs, activities, and
planning documents against the final 4(d) Rule and identify any and all potential areas of
needed revisions or modification
o
Develop prioritized list of potential areas of code, regulations, programs, activities, and
planning document revisions or modification balancing level of effort, costs, and legal
exposure for City Council consideration
Develop options and alternatives analysis for compliance with ESA 4(d) Rule for City Council
Consideration
6. Incorporate as appropriate via program improvement request(s) for ESA 4(d) Rule
compliance into 2001-2002 biennium budget
K:\memo\ESAstatus.doc
Endangered Species Act
LUTC - June 26, 2000
Page 13
5. Develop options and alternatives analysis for compliance with ESA 4(d) Rule for City Council
Consideration
6. Incorporate as appropriate via program improvement request(s) for ESA 4(d) Rule
compliance into 2001-2002 biennium budget
17-
~uilcene-Shaw
03-Lower 5kagit-Samish
04-Upper Skagit
05-Stillaguamish
SN O H O r~l SH C O U N T Y
08-Cedar-
Sammamish
11-Nisqually
07-Snohomish
KING COUNTY.
S
'~Ouwamish-Green
lO-Puyallup-White
. PIERCE C( UN
26~owli~
45-Wenatchee
39-Upper Yakima
-~' 38-Naches
Water Resource Inventory Areas (WRIA)
King, Pierce, and Snohomish Counties
..... County Boundary
11-name WRIA Basin Boundary
WRIA (Water Resource Inventory Area):
N
0 5 10 Miles
~ 1~S,~ KI NG COUNTY
Department of Natural Resources
Jill 08 '00 13:11 FROM:SUBURB^N CITIES +ZOG
Boundaries for
agreement arc
coterminous with
WRIA; edit
throughout for
spec/ftc WRIAs.
Forums retain
identity, See
§3.2, Saltwater
forums dealt with
in §3.5.
~NTERLOCA~ AGREEMENT
WATERS~D FORUM: WRIA [#]
[Discussion draft dated,4pril .II, 2000]
THIS AGREEMENT ("Agreement") is entered into pursuant to Chapter 39.34 RCW
by and between the following county and city governments located in King County and lying
wholly or partially within thc management area of Watershed Resource Inventory Area
("'~V~RIA'') [~] and the coterminou~ geographical boundaries of the [Name] Forum: King
County, a political subdivision of the state of Washington (hereinafter "County"), the City of
[list all cities within WP, IA choosing to participate in watershed forum governance structure],
(collectively "parties").
WHEREAS, the parties st,are interests and responsibility to address long-term
watershed planning and conservation for the watershed(s) basins in WR~A [#] known as hhe
[Name] and the [Noza~ ] Forum; ~d
WHISKEAS, the parties w~,sh to provide for planning, funding and implementation of
various activities and projects w~:hin the watershed basins and watexsh~ resource inventary
areas ("WRIAs'*), including the timely funding and development of WRIA-hase. d watershed
plans for the assessment, conservation and restoration offish habitat;
NOW, THEREFORE, tho parties hereto do mutually covenant and agree as follows:
1. Purposes of Am'eemerl~ T.b.e purposes of this Agreement include the following:
1.1 To provide a m~chanism and governance su'ucmre for the Joint participation
in and funding of WRIA-ha~ed w~ terghsd plang for the aggegsment, conservation and
restoration offish habitat within WRIA [#1 and the [Name ] Forum
1.2 To support the ¥,,,cershexl assessment and long-term conservation plam~ing
efforts of [WRIA steering comm~tle.¢] in WRIA [#], including such efforts related to:
(a) the collection of data:. ,reparation of watershed assessments and development of
recommended long-term watershed plans for the corm:rvation and restoration of fish habitat
therein;
{(~)033g05.oOC;$) 1
JUN 08 'OO 13:11 FROM:SUBURBAN CITIES +ZO6 ....... +706736,3,5~ P.03/16 F-608
This Agreement
may be usad as
a vehicle for
jurisdictione to
indicate
commitment to
WRIA planning
under the Rule
4(d).
Requires that
WRIA and parties
agree to the plan,
Move approval
method to §3.4(f).
§ 1,5 OPTION:
Adds habitat if all
parties agree;
useful for 4(d).
(b) the identification of projects and activities considered likely to serve both the
short-term and Iong-tenn management and £SA-related goals within WRIA [#] and the
[Name ] Forum;
(c) securing technical assistance and watershed planning grant funding from state
agencies and others; and
(d) providing for the ongoing participation of citizens and other st~keholderg in such
efforts.
1.3 To meet the requirement of a commitment to participate in WRIA-based
watershed planning in response te the listings of the Puget Sound Ghinook Salmon and Bull
TroUt as threatened under the federal Endangered Species Act CESA"). 16 U.S.C. 1531 et
seq., by, respectively, the Natic~al Marine Fisheries Service ("NMFS") and the United States
Fish and Wildlife gervioe ("USFWS"), to tho extent both that (i) such are. quimment is
established in the final Section 4(dj Rules promulgated in regponse the. rem as a prerequisite to
qualifying for a limitation on a "~ke" prohibition and_ (ii) an individual party to this
Agreement chooses to participat~ pursuant to this Agreement as a qualifying jurisdiction
undex such a rule.
i ,4 To create a effic, ient governance structure among affected county and city
governments located wholly or p~Rially within WKIA [#] and the [Name] Forum for the
purpose of:
(a) funding tile planni.~',..g ~fforts related to the assessment, conservation and
restoration offish habitat by the [WRIA steering committee] within WKIA [#], including
those planning efforts related to specific projects, activities and long-term planning to meet
the purposes set forth above;
(b) providing for review and approval of watershed conservation plans developed by
thc [WKIA steering committee] within WRIA [#],
(c) providing a framework for future agreements, including thc possibility ofjolnt
legislative strategies, related to such purposes or other purposes as may be agr~d to by the
parties.
1.5 Pursuant to agreed,upon budgets and with the unanimous consent of the
[Name] Forum Governing Body, described below, to provide for habitat acquisition and
restoration in response to such approved plans.
2. Effective Dam and Term of_Agreem_ent
2.1 This Agreement shall become effective upon its execution.
(O0033~0~.D0C;5)2
JUN 08 '00 13:1Z FROM:SUBURBAN CITIES +208 ....... +706236,3~8~ P.O4/1G F-S08
§ 2 OPTION:
Cdtical mass. Any
two? Majority?
GMPC model:
30%/70%
Should initial term
be two years,
option for five?
JEXHIBIT A
§ 3.4. OPTION:
What effect is a
jurisdictions chooses
no._~t to use the
Agreement to meet
4(d) requirements?
~hould they still
have a vote on
actions complying
with 4(d)?
§3,4(C) OPTION:
Haw ta allocate
budget. Pop/A~//
Area or blended?
EXHIBIT B
2.2 Once effective, this Agreement shall remain in effect for an initial term of
five (5) years; provided, however, that this Agreement may be extended for such additional
terms as the parties may agree to in writing.
3. Or~:_anization, Compo.4.~Lql~ and Nam_ re_of Watershed Forum Govemine_Bodv.
3.1 The parties to thi~. Agreement hereby establish a Waterahe~l Forum
Governing Body for WRIA [#] and the [Name] Forum (hereinafter the "[descriptive name,
e.g. Snoqualmie] Watershed Forum Governing Body") to serve as the formal governance
structure for carrying out the designated purposes set forth in this Agreement. The
geographic boundaries of [Name] Forum are as set forth in Exhibit A. The Watershed Forum
Governing Body is a voluntary association of the county and city governments located wholly
or partially within the management axes of W'RIA [#] and the ['Name] Forum choosing to be
parses to this Agreement.
3.2 The [Name] Watershed Governing Body may contract with similar watershed
forum governing bodies for any 18wf'ul purpos~ related hereto.
3.3 The panics may choose to create a separate legal or administrative entity
under applicable state law, including without limitation a nonprofit corporation or general
paxtnership, to accept private gt h~, grants or financial contributions, or for any other lawful
purposes.
3.4 Rules and procedurea for the [Name] Waterzhed Forum Governing Body
shall be established by agreement of the parties, subject to the following:
(a) The governing body shall be an appointive body.
(b) Each.party shall appoint one {1) elected official to serve on the governing body.
(c) The role and responsibilities of the governing body in connection with decisions
it makes and actions it takes are as follows: (i) to establish the level of funding and total
resource obligationa of the parties on an annual basis, to be allocated as established in Exhibit
B, (ii) to establiah planning priotitiea for each year of thin Agreement; and (iii) to budget the
expenditure of funds and allocate the utilization of resources contributed by each party in
accordance with a prioritized list of planning activities within the WRIA during each year of
this Agreement.
(d) The governing body shall make decisions and take actions using a consensus
model as much as possible. Each party agrees to use its best efforts and exercise good faith in
consensus decision-making. Consensus may be reached by unanimous agreement of the
{00033905,DOC;513
JUN OB 'O0 13:lZ FROM:SUBURBAN CITIES +208 ....... +20G:::'3G~,~ P.O5/1B F-BOa
§ 3,4 OPTION:
Weightecl voting.
Describe options.
Pop/AVl Area or
blended? Dual
voting? Part of
EXHIBIT B
§3.4 OPTION:
Ratification
requirement and
formula therefore?
Intent i= to have
jurisdictional
revie~v and
approval, not to
have "ratification"
bind Individual
jurisdictions. Could
be GMPC 30/713
model, simple
majodty Pop/AVl
Area or blended.
§3.5 OPTION:
Continuing
involvement,
collaboration of
shoreline/saltwater
communities.
EXHIBIT C
parties, or by a majority recommendation with a minority report. Any party who does not
accept a majority decision may request weighted voting as act forth below.
(e) In the event consensus cannot be achieved, as determined by rules and procedures
agreed to by the governing body, the governing hefty shall take action on a majority,
"weighted" basis as follows:
[1 ) Each parry, through its appointed representative, may cast its weighted vote in
connection with a proposed governing body action.
(2) The weighted vote oi' each party in relation to the weighted votes of each of the
other parties shall be determined by
(t') After approval pursuant to subsection 3.5 of this Agreement relating to the
Committee for Marine and Shoreline Issues, if applicable, the governing body shall act to
approve any final long term watershed conservationn plan prepared and recommended by a
WRIA steering committee. In the event that any plan is not so approved, it shall be returned
to the [WRIA steering commitxee] for further consideration and amendment., and thereafter
returned to the governing body for decision. After approval of the plan, it shall be subject to
the ratification requirements of this subsection. For pu~oses of this Agreement. ratification
means
3.5 The pm-tics acknowledge and agree that thc assessment and planning issues relating to
gl~oreline emmmunitieg ghould be addressed within tho WRIA steering committee planning
and approval process. It is therefore agreed that a [Name] Watershed Forum Committee for
Marine and Shoreline Issues ("CMSI") shall be created. The members the CMSI shall be
appointed by the parties to this Agreement lying wholly or partially within the boundaries of
the Central Puget SoUnd Watershed Forum as set forth in Exhibit C. The CMSI shall be
responsible for developing recommendations to be presented to a~d considered by the [Name]
Watershed Forum Governing Body regaxding issues of interest the shoreline communities.
Ail budget, scop~ of work and plan approval decisions by the [Name] Watershed Forum
{00033905.DOC;5 }4
JUN 08 'O0 13:13 FROi/hSUBURBAN CITIES +208 ....... +;::'0623G,:3~8~ P.a8/ll; F-I;O8
§4.2 OPTION:
Insert capped
budget and for
what time pedod.
EXHIBIT D
S4.5 OPTION:
term of budget
cap? EXHIBIT
D OR E?
Governing Body shall take into account and give due consideration of such recommendations
that are timely submitted by the CMSI.
4. Obligatio~ts of parties: Budffet: M~intenance of. Flmds; Admil~js~r~,tive Rules.
4.1 Each party shall be responsible for meeting its individual.obligations
hereunder, and as may be determined by the [Name] Watershed Forum Governing Body,
including all such obligations related to [Name] Forum and [WRIA steering committee]
funding, technical support, and participation in r~lated planning projects and activities as set
forth herein. It is anticipated that separate actions by the legislative bodies of the parties will
be necessary from time to time in order to carry out these obligations.
4.2 During the initial term of this Agreement, the primary individual obligations
of the parties will be to provide funding and/or technical support to [WRIA steering
committee] in support of the development of W'RIA [#] planning and conservation principles,
the collection of data and the assessment of watershed conservation needs, and WRIA [#]
planning leading to the development of long-term watershed conservation plans. The
maximum agreed-upon cost of these activities during [insert relevant time period] is Set forth
in Exhibit D, which is by this reference incorporated herein.
4.3 The parties shall be active and collaborative participants in the planning
efforts of the [We,IA steering committee] in WRIA [#] described herein. In order to provide
for such participation, the [Name] Forum Governing Body shall designate at least one (1)
representative to participate in the planning efforts of the [WRIA steering committee] in
WRIA [#] on behalf of the [Name] Forum. Such representative will participate on behalf of
the [Name] Forum but will not have the authority ta bind the [Name] Forum Governing Body.
4.4 No later than September I of each year of this Agreement, the [Name]
Watershed Forum Governing Body shall adopt a Watershed Forum budget, including its
overhead and administrative costs, for the following calendar year. The budget shall establish
the level of funding and other (e.g. staffing) re~ponsibilities of the individual parties for
following calendar year on a fair and proportionate basis according to the formula established
in Exhibit B. Further, the budget shall establish the levels of funding and resources to be
allocated to specific prioritized planning activities within the WRIA. The parties shall
thereaRer take whatever separate legislative or other actions may be necessary to timely meet
such individual responsibilities, and shall have done so no later than December 1st of each
such year.
(00033905,DOC;$) 5
JUN OB 'al) 1~:1:~ FROU:SUBURBAN CITIES +206 ....... +206236,~5,~8~ P.O?/1B F-BOB
§4.6 OPTION
Who will be
fiscal agent,
administrator?
§ 6 OPTION:
How easy should
it be to get out of
the Agreement,
especially with
firm not-to-
exceed budgets?
4.5 The maximum fu~nding responsibilities imposed upon the parties during the
first year of this Agreement shall not exceed the amounts set forth in Exhibit E-
4.6 Funds collected from the parties or other sources on behalf of the [Name]
Watcrshcxt Forum Oov=rning Body shall be maintained in a special fund by [county or city
that will serve] as ex officio treasurer on behalf of such Governing Body pursuant to rules and
procedures agreed to by the Governing Body. Such rules and procedures shall allox~ any
party to inspect and review all records maintained in connection with such fund at any
reasonable time.
4.7 The [Name] Watershed Forum Governing Body may from time to time adopt
such other rules and procedures, including those related to billing practices and collection
procedures, as may be necessary to provide for its efficient administration and operation.
5. L_ateeomers. A county or city government in King County lying wholly or
partially within the management area of WRIA [#] and the [Name] Forum which is not a
party to this Agreement may become a pan3, only with the written consent of all the parties.
The provisions of subsection 3.4 and 3.5 otherwise governing decisions of the [Name]
Watershed Forum Governing Body shall not apply to this section 5. The parties and the
county or city shall jointly determine the terms and conditions under which the county or city
m,~y become a party, which terms and conditions shall Include payment by such county or
city to the parties of the amount determined jointly by the parties and the county or city to
represent such county or city's fair and proportionate share of all costs associated with
activities undertaken by the [Name] Watershed Forum Governing Body and the parties on its
behalf as of the dam the county or city becomes a party. Any county or city that becomes a
party pursuant to this section shall thereby assume the gener&l rights and responsibilities of
all other pa.,'ties to this Agreement.
6. Termination,.
6.1 This Agreement may be terminated by any party, a~ to that party only, upon
ninety (90) days' written notice to the other parties. The terminating party shall remain fully
responsible for meeting all of its funding and other obligations throughout the calendar year
in which such termination is given, together with any other costs that may have been incurred
on behalf of such terminating party up to the effective date of such termination. This
Agreement may be terminated at any time by the written agreement of all parties.
6.2 It is expected that the makeup of the parties to this Agreement may change
from time to time. Regardless of any such changes, the pm'ties choosing not to exercise the'
( 0o033905
JUN 08 '00 13:14 FROM:SUBURBAN CITIES +ZOB ..... ,,,,, +706736,3,5:.8~ P.Og/IE F-BOB
§7
QUESTION:
Insurance
coverage?
§ 9 OPTION:
Who amends?
(1) governing
body; (2) all
Jurlsalctions; (3)
only those
wishing to be
bound?
right of termination set forth in subsection 6.1 above shall collectively remain obligated to
meet all the duties and obligations of the [Name] Watershed Forum Governing Body
hereunder.
7. .Hold Harmless and Indemnification.
7.1 To the extent permitted by state law, and for the limited purposes set forth in
this Agreement, each party shall protect, defend, hold harmless and indemnify the other
parties, their officers, elected officials, agents and employees, while acting within the scope
of their employment as such, from and against any and all claims (including domands, suits,
penalties, liabilities, damages, costs, expenses, or losses of any kind or nature whatsoever)
arising out of or in any way resulting from such partys own negligent acts or omissions
relatod to ~uch party's participation and obligations under mis Agreement. Each party agrees
that its obligations under this subsection extend to any olaim, demand and/or cause of aotion
brought by or on behalf of any of its employees or agents. For this purpose, each party, by
mutual negotiation, hereby waives, with respect to the other parties only, any immunity that
would otherwise be available against such claims under the Industrial Insurance Act
provisions of Title :51 RCW. The provisions of this subsection shall survive and continue to
be applicable to parties exercising the right of termination pursuant to soction 6.
8. No Third Party Ri_e_.hts. Nothing contained in this Agreement is intended to, nor shall
it be construed to, create any rights in any third party, including without limitation [WRIA
steering committee] or NMF8, or to form the basis for any liability on the part of'the [Name]
Watershed Forum Governing Body or any of the parties, or their officers, elected officials,
agents and employees, to any third party.
9. Amendments. This Agreement may be amended, altered or clarified only by the
unanimous consent of
The parties expect that this Agreement may be amended in this manner in the future to
include, without limitation, the following subject matter areas: (a) water quality, ~ (b) flood
hazard control.
10. Counterparts. This Agreement may be executed in counterparts.
1 I. _Approval by Parties' Governing Bodies. This Agrccmcnt has been ~xpprovcd for
execution hy appropriate action ~,f each party's governing body.
{o0~339o5.Doc;$) 7
JUN 08 '00 13:14
FROU:SUBURBAN CITIES
IN WITNESSWHI~REOF, theparties heretohaveexeeutodthiaAgreementonthe
~dayof ..... 2000.
I~I~IG COUNTY'
By:
Its:
Approved as to forra:
By:
DepuW Prosecuting Attorney
CITY OF [NAMI~ OF CITYI
By:.
Its.'
Approved astoform:
By:
Assistant City Attorney
CITY OF [NnMI~ or crrY]
By:
Its:
Approved as to form:
By:,
Assistant City Attorney
crrY OF [~a~ OF CITY]
By:._
Its:
Approved as to form:
By:
Assistant City Attorney