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LUTC PKT 12-18-2000December 18; 2000/;~.~ : ..... 5:30. pm ....,: .Ci~. of Federal~:iWay · . .'.'.::~ !::ilCity CounCil:~.':.' . ': .......... ' ....................................... · .... · . :. :~. ~......~:: ...:.:~'.::'.~; .:~ ..'. ".". :.,'"..:,:~.:.' ,": "'" ' '..'~. ,: "..:. :, :~.~¥:~L '.:'.*.' ."' ': · .?':.Land se/TranS'~?tation · :.. :~:, ..... .:... :. .......... ~,~,..,~: :..... :,. Committee× ~,:. :. ~!.~? ............ . .... , ........... .,...: .. .... · · :.. '..':" ...',~:.: .;.~..' ..' ~".?.:'.::,:'..~..' i'..., ' ......... :i:':.,::':.":"::i~'".:.' .: ', ".':~'~?~.i".i"..~' . .. ~...:..~ ::'~:~.'i. Ci~.Hall ..'.: ~. ' ~'" :' ':i':i.:: :."'::~! ':"' : "' Councii'.'~ahibers.:: . ::?::: ... ! :.!~: .~..' .. 2. 3. 4. MEETING AGENDA CALL TO ORDER Approval of Minutes of the December 4, 2000, Meeting PUBLIC COMMENT (3 minutes) BUSINESS ITEMS A. Endangered Species Act (ESA) B. Vadis Northwest Litter Control Contract Renewal C. Project Acceptance/Retainage Release 2000 Asphalt Overlay D. Sign Compliance History Presentation Info Bucich/45 min Action Miller/10 min Action Salloum/10 min Information McClung/Cruz/:10 min FUTURE MEETING AGENDA ITEMS 2000 King County Comprehensive Plan Update 6. ADJOURN Committee Members: Phil Watk/n$, Chair Jeanne Burb/dge Dean McCo/gan City Staff: Kathy NcC/ung, Interim D/rector, Community Deve/opment Services Sandy Ly/e, Administrative Assistant 253.661.4116 I:\LU-TRANS\December 18, 2000 LUTC AGN.doc December 4:, 2000." 5:30 pm City of Federal Way City Council Land Use/Transportation Committee ."'".. = City Hall ~. ~ · Council Chambers ...:'"..~ MEETING SUMMARY In attendance: Committee members Phil Watkins, Chair, Jeanne Burbidge and Dean McColgan; Deputy Mayor Linda Kochmar; Assistant to the City Manager Derek Matheson; Interim Director of Community Development Services Kathy McClung; Public Works Director Cary Roe; City Attorney Bob Sterbank; Street Systems Manager Marwan Salloum; Senior Planner Margaret Clark; Traffic Engineer Rick Perez; Street Engineer John Mulkey; Traffic Analyst Sarady Long; Administrative Assistant Sandy Lyle. 1. CALL TO ORDER Chair Watkins called the meeting to order at 5:32 pm. 2. APPROVAL OF MINUTES The minutes of the November 20, 2000, meeting were approved as presented. 3. PUBLIC COMMENT There was no public comment on any item not included in the agenda. 4. BUSINESS ITEMS 2000 Asphalt Overlay - Public Works staff presented a list of recommended streets for the 2001 Asphalt Overlay Program. The streets for overlay were selected using the City's pavement management system and were verified by field reconnaissance. The total budget for the program is $2,037,050. Preliminary estimated costs are $2,557,348 including construction administration, ten percent construction contingency, in-house design, and printing and advertising. The 2001 Asphalt Overlay project will be awarded within the above identified overlay construction budget. Once approved by the City Council, staff will begin final design with advertising anticipated for April 2001. It was noted that the Weyerhaeuser portion of the schedule may be postponed to accomplish some intersection improvements at the time of overlay. The Committee m/sic recommendation to the City Council to approve at it's December 19, 2000, meeting. 2000 Commute Trip Reduction (CTR) Act Professional Services Agreement Extension with King County - Washington State's commute Trip Reduction *CTR) Law requires that all employers, both public and private, who employ one hundred (100) or more full-time employees scheduled to arrive at a single work site between 6:00am and 9:00am develop and implement a CTR plan. A six month extension of the contract to June 30, 2001 with King County Metro is proposed for an estimated cost of $13,741. At a later date, staff will be proposing a new CTR professional services agreement from July 1, 2001, through June 30, 2002, to coincide with the state CTR grant allocation period which will allow planning future work activities and agreements to match the state funding cycle. The Committee m/sic recommendation to the City Council to approve at the December 19, 2000, meeting. 2001 Work Proqram - Staff presented the 2001 Planning Commission Work Program, noting . that the Planned Action SEPA for City Center and Phase II Potential Annexation Area Study were funded in the 2001-2001 budget. The Work Program was organized into those items required by State law and other items prioritized by the Land Use/Transportation Committee. Prioritized items required by law and the 2000 Comprehensive Plan Update, 2001 Comprehensive Plan Update, Wellhead Protection, Endangered Species Act (ESA) and Stream Related Amendments, Annual Report to the office of Financial Management (OFM), Benchmark Report, and Buildable Lands Report. Remaining items selected by the Committee were Transportation Impact Fees, Planned Action SEPA, Twenty-Five Percent Threshold for Right-of- o Way Improvements, Group Homes Type 1, and Phase II Potential Annexation Study. Council will review the 2001 Work Program at their December 19, 2000, meeting. Cluster Subdivisions - The Committee m/sic recommendation to the City Council to approve the Cluster Subdivision Code Amendment, as amended, at its December 19, 2000, meeting. The Committee agreed with the Planning Commission recommendations in item #7. The Committee chose to have item 8(b) reflect '/0% and item 8(d) to say must be owner occupied. The Committee stated that there should be no Accessory Dwelling Units (ADUs) in Cluster Subdivisions. Crime Prevention Through Environmental Design (CPTED) Guidelines - The 2000 Planning Commission Work Program included the task of incorporating Crime Prevention Through Environmental Design (CPTED) into Federal Way City Code (FWCC) Chapter 22, in order to provide for a higher degree of public safety. To prevent duplication and to promote consistency, the Planning Commission recommended that the CPTED principles be incorporated into the existing Community Design Guidelines, FWCC Article XIX. This alternative proposes the inclusion of the key principles associated with CPTED within the code. CPTED principles would be implemented as part of the design and construction of a project The applicant would be required to demonstrate that the proposal conforms to the CPTED principles of Natural Surveillance, Access control, and Ownership by using a checklist prepared by the City or responding in writing demonstrating how each key principle has been met. The Checklist will not be adopted as part of the code, but will be used as a handout; therefore, it can be changed in the future as the need arises. The Committee m/sic recommendation to the City Council to approve at its December 19, 2000, meeting. FUTURE MEETINGS The next meeting will be held in Council Chambers at 5:30 pm on December 18, 2000. ADJOURN The meeting adjourned at 7:17pm. I:\LU-TRANS\December 4, 2000 sum.doc DATE: TO: FROM: VIA: SUBJECT: December 18, 2000 Phil Watkins, Chair Land Use and Transportation Committee Paul A. Bucich, Surface Water Manager ~9~ ~iadn~e~red Species Act Updat:r The purpose of this memorandum is to provide the City Council with updated information regarding the Endangered Species Act (ESA) and Federal Way's efforts to ensure compliance as well as to provide information on related activities conducted by others. Council was briefed on this topic on June 26, 2000. Attached is a copy of the previous memorandum from that briefing. This memorandum will reference the previous document so that Council can easily see any changes that have occurred either through negotiations with, or determinations by, the National Marine Fisheries Service (NMFS). I. Background Although no significant changes have been made to the background information provided in June, it is referenced here in order that Council members can refresh their memories prior to the updating on the follow on sections. Of particular interest is the clarification that the listing of a species under the ESA as a threatened species does not automatically give the species the absolute prohibition against "take" that a determination of endangered would. With a threatened species, NMFS is allowed under Section 4(d) of the ESA to develop specific regulations deemed "necessary and advisableto provide for the conservation'of the species listed as "threatened." Such regulations are commonly referred to as 4(d) rules. D. 4(d) Rule for Puget Sound Chinook Salmon Since the June briefing, the final 4(d) rule has been published and will be effective on January 8, 2001. NMFS has been conducting a series of workshops in Washington and Oregon on the rule and local governments' role in salmon recovery. Even with the workshops, debate continues around what is a jurisdiction's legal obligation(s) versus what NMFS is responsible for in the recovery of the species. It is likely this will be resolved in Federal court. E. Tri-CounW Framework 4(d) Rule Proposal for Chinook Salmon Negotiations with NMFS have continued for an alternative platform for salmon recovery that meets Federal requirements and leads to the recovery of local salmon runs. The road maintenance program is largely completed and is expected to be ready by the January deadline. Other elements of the Tri-County proposal, such as the storm water plank and the land management plank, have yet to be approved by NMFS. In order to move forward, the parties involved in the negotiations have agreed to conduct an independent biological review of the entire proposal. Scoping is now underway and a consultantwill be hired to conductthe review. Completion is anticipated in May or June of 2001. This may be optimistic based on the likelihood of policy questions arising in the scope drafting process. When completed, the biological review is anticipated to allow for completion of the negotiations between Tri-County and NMFS. Endangered Species Act LUTC - December 18, 2000 Page 2 Certain issues continue to have life outside of the Tri-County/NMFS process such as storm water and shoreline regulations revisions. The Department of Ecology issued new shorelines management guidelines on November 29, 2000. According to Ecology, revised shoreline guidelines will only apply to new development or re-development and will not be applied to properties already approved for development by cities and counties under their existing shoreline master programs. Ecology is in the final stages of developing new standards for storm water management on new and re- development sites. Review of these standards indicatesthat FederalWay, throughadoptionofthe 1998 King County Surface Water Design Manual, will be in compliance with the Ecology manual with the potential for only minor revisions depending upon what happens with Ecology's final editing. One of the most important changes from earlier draft rules is the incorporation by NMFS into the 4(d) rule the concept of Municipal, Residential, Commercial and Industrial(MRCI) Development and Redevelopment criteria. Separate "planks" proposed by the Tri-County group have been condensed into the MRC! concept. The current Tri-County Framework is intended to provide a "global" approach to meeting the 4(d) rule's MRCI development component summarized immediately above. Originally the theory was that 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 developmentregulations. However, NMFS has recently modified its strategy regarding the Th-County framework and has acknowledged that this framework will be a "model" and local jurisdictions may adopt variations of this model. The Tri-County Proposal essentially tracks the twelve separate areas of MRCI development set out in the NMFS 4(d) rule, with minor variations. The original list of programs or "planks" has been condensed to the following list of six (6): Plank # 1: · Plank #2: · Plank #3: · Plank #4: · Plank #5: · Roadway Maintenance Storm water Management Land Use Management Water Resource Inventory Area (WRIA) Planning Habitat Funding Program Plank #6: Adaptative Management Plank#l: Roadway Maintenance - The King County Department of Transportation Road Maintenance Best Management Practice ("BMP") Manual has been proposed as the standard for cOmpliancewith the ESA and appears to be acceptable to NMFS. Federal Way will be evaluating this for adoption as the guide for our current roadway maintenance program. This manual provides some BMP guidelines for maintenance activities that address ESA concerns in these areas: Restoring structures · Minimizing work site pollutants from maintenance and repair activities · Restoring or maintaining surface water drainage · Restoring or maintaining road surface and safety · Reducing turbidity · Reducing the amount of sediment that enters watercourses or streams The manual provides the framework of a program to help road maintenance supervisors, operators and crews protect the environment by using specific erosion control practices while performing daily tasks and when responding to emergencies. Our maintenance staff has had some education in performing these BMP activities within sensitive areas that impact the environment. As the guidelines associated with the ESA Endangered Species Act LUTC - December 18, 2000 Page 3 become more defined we will need to focus on training our employees and setting specific standards for our activities. Examples of roadway maintenance activities the City performs include patching potholes, removing and replacing failed asphalt, restoring asphalt removed for utility cuts, adding gravel to road shoulders, maintaining and grading graveled surfaces and shoulders, sealing cracks in the asphalt, installing crosswalks, restoring culverts, and managing contracted street sweeping services. Many storm water maintenance activities, such as ditching, shoulder maintenance and culvert repair, are closely associated with roadway maintenance activities and will be discussed in the next section. Plank #2: Stormwater Management - The Tri-County stormwater proposal is both prescriptiveand, some observers fear, unaffordable for most jurisdictions. While negotiations are continuing, it appears that the final Tri-County stormwater package will consist of the original proposed fourteen components. Eleven of these most likely will be requirements that Federal Way and other cities will have to comply with over the next few years under the Federal Clean Water Act (CWA) and Phase II of the National Pollutant Discharge Elimination System (NPDES) permit system. These requirements include: · Stricter technical standards to control runoff from new development and re-development · Inspection and enforcement for stormwater requirements and facilities in connection with private development · High standards for maintaining public stormwater systems · Public education and involvement efforts · A program to detect and reduce discharges of polluted runoff · Water quality testing/monitoring · Basin planning efforts · A capital improvement program for the public stormwater system In most cases, we appear to already be in compliance or are preparing to achieve compliance duringthe next biennium. The capital program requirement could turn out to be a major exception and may require Federal Way to revise the prioritization schemes and modify future projects. Local governments may be asked to retrofit their existing public stormwater systems to provide additionalwater quality protection. Federal Way is exploring options on how the existing infrastructure can be modified at minimal cost. Other options may also be viable, such as enhanced street sweeping that utilizes advanced technologies. This provision was anticipated and Public Works has been looking into these options for the past few months. Whatever stormwater requirements make their way into the final 4(d) rule, it appears that NMFS will look to the Department of Ecology to bring local governments into compliance. It also appears that local governments will have a ramp-up period of several years to meet the stormwater requirements. Plank #3: Land Use Management Program Analysis - Of all the "planks" within the Tri-County 4(d) rule proposal, the Land Management Program element is one of the most controversial and has received the most change since June. This is due to the fact that stream and lake conditions along with current development activity over the Puget Sound region vary so greatly from jurisdiction to jurisdiction. All municipalities and their staff are closely following developmentofthe proposal for compliance with ESA. Because negotiations are continuing between NMFS and the Tri-County negotiating team, the true implications of the Land Management Program element within the Tri-County agreement are yet to be determined. Currently the "G-7" representatives (Snohomish, King and Pierce Counties, Everett, Bellevue, Seattle and Tacoma) and the Services are negotiating what is called the "Management Zone" Proposal (MZ) and how local governments would apply it to their land development regulations, as depicted on the attached Exhibit 2. Briefly, the MZ is the land around a lake, a perennial or intermittent stream, or a wetland that is Endangered Species Act LUTC - December 18, 2000 Page 4 considered critical to protecting fish habitat. Most local jurisdictions have regulations such as "Critical Areas" ordinances and Shoreline Master Programs that govern development in these areas. However, the MZ proposal has potential for impacting a much larger area and imposing greater restrictions on public and private activities with the protected MZ area. It is not possible to discuss all of the implications of the proposed MZ since it will not be finalized until January 2001, although a few outcomes seem certain. Under the current Tri-County proposal there are three alternatives for complying with the 4(d) rule: · Fixed Regulations Option · Site-specific Regulations Option · Programmatic Regulations Option. Local governments may choose any one or any combination of these options and amend their development regulations to conform to the specifics of the approved regulations outlined within the Tri-County agreement. These provisions represent what may be required as a minimum. The final 4(d) rule could have more restrictive measures. Under the Fixed Regulations Option, a development project applicant submits plans that conform to the regulations, obtains required permits, and constructs the project according to the development regulations. The fixed regulations proposed by Tri-County include a 200-foot-wide management zone with a 115-foot "no touch" buffer. The advantages include simplicity, some protection from third-party lawsuits, and some interim guidelines while the WRIA planning process is completed. Disadvantagesincludea one-size-fits-all approach, the cost of enforcement and staffing, and the interim nature of the option until the WRIA planning process is completed. Under the Site- Specific Regulations Option, the project applicant prepares a Habitat Evaluation (HE), which outlines impacts and mitigation measures for protecting habitat functions essential for listed species. Based upon the HE, Federal Way would impose project conditions that protect the salmonidsand related resources. Advantages include simplicity, flexibility, limited protection from third-party lawsuits, and regulations tailored to a unique project. Disadvantages include the high cost to property owners, uncertainty, staffing and enforcement. Under the Programmatic Regulations Option, a city or county conducts an HE on a specific geographic area or type of development. The city would then implement specific habitat protection measures that apply in the geographic area, or for the types of development studied, that are designed to protect habitat functions essential for the species. Advantages include flexibility and likely protection from third-party lawsuits since NMFS would have to approve any HE and regulations. Disadvantages include high cost to local governments, uncertainty, staffing and enforcement. A fourth approach, known as the "Urban Proposal" or "Built-Areas Option," has recently been offered by a coalition from Seattle, Tacoma, Port of Seattle, Everett and Boeing. This would be an alternative to the programmatic approach outlined above. Underthe present Tri-County proposal, localgovernmentsmust use the Management Zone Widths set forth in a proposed table until they develop basin-specific Management Zones (MZ) through the WRIA process. Currently both urban and rural MZ widths are being negotiated and are not finalized. As an example, current proposals suggest a 200-foot MZ from Lake Washington with requirements for retaining 50% to 65% of the natural vegetation and varying degrees of impervious surface as one moves landward from the Ordinary High Water Mark. The setback criteria for this threshold are still under development and negotiation. Setback proposals for the urban area under consideration by Tri-County are more restrictivethan our current Shoreline Master Program regulations in that they would require less impervious surface than we currently Endangered Species Act LUTC - December 18, 2000 Page 5 use. Implications for Federal Way would include reducing our impervious surface allowance on all new development within shoreline properties as well as properties adjacent to watercourses. Watercourse setbacks imposing a no-build area could potentially increase for new development, with similar pervious surface areas protected within the watercourse setback. Final dimensions and percentages applicable to this zone are still under negotiation. Concerning docks and piers, the current Tri-County proposal contains an element stating, "new residential docks and piers are not allowed under prescriptive regulations." Repair of an existing residential dock or pier shall be permitted, provided that there is no net increase in the (1) use of materials creating shade for predator species, (2) the spanning of waters between three and thirteen feet deep, and (3) the size of pilings. Also the use of toxic materials coming into contact with water in both construction and maintenance is prohibited. While the new Land Management Program plank directly affects development regulations, it also relates closely to and has implications on the other five "planks" or elements. For example, adoption of the MZ regulations does not release cities from any of the requirements of the road maintenance (Plank # 1) or storm water management (Plank #2). WRIA Planning (Plank #4) is intended to develop more specific regulations for buffers and uses that would replace regulations developed under any of the MZ options. Habitat funding (Plank #5) is also important to the long-term success of the management zones. Adaptive Management (Plank #6) requires continual monitoring, assessment and revision of local regulations dependent upon the success or failure of efforts to protect and improve the salmon habitat over time. Upon completion and publication of the final 4(d) rule in January 2001, the City will be evaluating the following functions for compliance with ESA: Development regulations and project review (building, zoning, subdivision and shoreline) · In-stream structures · Utility crossings · Stormwater facilities · Code enforcement · Bank stabilization · Docks, piers and bulkheads · Roads and bridges · Clearing and grading activities · Maintenance activities Discussions will then center on major policy implications and potential actions to bring our regulatory functions into compliance. Plank #4: Water Resource Inventory Area ("WRIA") Planning- The Tri-County area contains all or part of seven different Watershed/Water Resource Inventory Areas (WRIA). The watershed planning effort within King County alone will involve four separate WRIAs. Federal Way is located within the Green/Duwamish (WRIA 9) and the Puyailup/White (WRIA 10). A small policy group of inter- jurisdictional elected officials and staff led by Suburban Cities Association(SCA), 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 WRIA planning. The proposedlLA's are intendedto provide a mechanism and governance structure for the joint participation in and funding of WRIA based watershed plans for the assessment, conservation, and restoration offish habitat. The ILA will be broughtto the City Council at a future regular meeting for consideration. A copy of the ILA is attached for Council reference. Further discussion of this follows in a separate section. Endangered Species Act LUTC - December 18, 2000 Page 6 Plank #5: Habitat Funding Program - The Habitat Funding plank in the Tri-County Proposal covers funding for capital improvements. The G-7 elected and staff group dealing with habitat funding issues for the Tri-County model program has been conducting meetings on this topic. The group has been actively pursuing a levy proposal for the 2002 ballot to support habitat acquisition and recovery funding. This proposal would be in answer to NMFS's insistence on certainty of funding to support the program. For jurisdictions without stormwater utilities or that do not have such a component factored into their utility structure or rate schedule, this "certainty" would not be available until the levies were approved. Any levy proposal would be unlikely to be offered without support from local governments. While the habitat funding group surveyed and compiled existing capital expenditures for "fish friendly" projects, NMFS rejected current expenditures as an acceptable proffer of commitment. It is likely that the existing capital expenditures will be revisited, since these funds may figure into either a WRIA analysis or into some new approach to funding needs. Federal Way will be doing an internal analysis of existing capital plans, with an eye to compiling and being able to report existing "fish friendly" expenditures. Since the City's duty under the ESA is to avoid a "take", an unanswered question remains: what level of capital funding would be necessary to meet this plank of the Tri-County Proposal, as opposed to what level is necessary to "recover the species," or what level is necessary to comply with the 4(d) rule, assumingthe City decides to do so? It is the obligation of the NMFS, not local government, to recover the salmon runs. Plank #6: Adaptive Management - The final 4(d) rule will recognizethat the science ofsalmonrecoveryis evolving, and that requirements stemming from the listing of the Puget Sound Chinook salmon may need to be modified over time. Adaptive management is the formalized process by which the effectiveness and efficiency of recovery efforts will be evaluated and adjusted. The Tri-County proposal suggests that adaptive management should be a component, at the local level, of each of the 4(d) rule programs. At the regional level, it will be folded into the management plans developed for each WRIA. F. Regional Interlocal Agreements The model Interlocal Agreement (ILA) has been completed and is in the process of being signed by jurisdictions within WRIA 9. Auburn, Des Moines, King County, Maple Valley, Normandy Park, Renton, SeaTac, and Seattle have signed the ILA. Algona, Black Diamond, Enumclaw, Kent, Tukwila, Shoreline, and Federal Way are in the process of adoption or are still reviewing the document. Federal Way staff has recently received the document and is in the process of reviewing it. An assessment of the document along with foreseen fiscal and workload impacts, if any, will be brought to the City Council early in 2001. The ILA will demonstrate a collective commitment to watershed planning, a key componentofthe local and regional ESA response and compliance strategy. It also provides a mechanism for the implementation of other habitat, water quality, and flood projects with regional, state, federal, and non-profit funds as they become available. Initially, the ILA will provide a mechanism and governance structure for the joint funding, development, review and approval for WRIA-based watershed plans. Signing this agreement subjects the jurisdictions to funding this portion of the long-term planning efforts and does not obligate them to supporting capital expenditure recommendations from the plan. A major impetus to developing the ILA is the projected cost of approximately $860,000 for developing the WRIA 9 watershed plan. Federal Way's proposed portion of this is approximately $10,300. King County, one of the initial sponsoring agencies, has agreed to commit to approximately one half as in-kind services. Endangered Species Act LUTC - December 18, 2000 Page 7 These services will primarily be to develop the technical information and conduct studies necessary to develop the plan. As a part of the ILA process, two watershed forums, the Green/Duwamish and the Central Puget Sound, will be combined into one. Currently, both forums receive funding from the King County Conservation District that Federal Way opted out of two years ago. Combining the two into one forum will realize cost savings and will give any recommendations greater weight when proposed for funding at the state or federal level. The Green/Duwamish Forum will spend $74 million dollars in the watershed under a 35/65 matching federal grant. None of the identified projects are located in the City of Federal Way. Future projects may be - identified in the near-shore environment. G. Suburban Cities Association (SCA) Activities SCA has continued to monitor the Tri-County process but has been unable to develop an alternative model for negotiation with NMFS. Due to the time lag until May or June 2001 when the biological review for the Tri-County proposal will be completed, the consultants used to track the process have been asked to complete final summaries of the status of the stormwater and land management planks for submissionto the member cities. This should be completed in early 2001. I. Governor's Salmon Recovery Office [new section] On November 2, 2000, the Governor's Salmon Recovery Office published the draft "Watershed Planning Guidelines for Salmon Conservation" in an effort to establish common standards for watershed planning activities throughout the state. The purpose of these state guidelines is to clarifywhat is needed in watershed level plans to conserve healthy salmon populations and the habitat upon which they rely. The Watershed Planning Guidelines for Salmon Conservation are intended to help prevent divergent or dissimilar approaches to watershed assessment, monitoring, information technology, adaptive management and other watershed planning elements. A degree of statewide consistency in locally developed watershed plans is needed to achieve statewide goals for salmon recovery and to facilitate federal recognition and use of the plans under the ESA. Additional local planning efforts will be needed to assure that other watershed management objectives, in addition to salmon conservation, are addressed. The guidelines define a framework for obtaining various types of recognition related to salmon conservation for watershed plans. The guidelines clarify potential linkages between watershed plans for salmon conservation and related activities, including programs to fund salmon habitat preservation and restoration projects and other local plans (e.g. GMA policies, plans and regulations). They include guidance for plans that only address habitat restoration activities in response to the NMFS Section 4(d) Rule provision calling for state "Watershed Conservation Plan Guidelines." They also provide guidelines for the more comprehensive watershed plans that are being locally developed, such as the Green/Duwamish plan, which also address a broader range of land and water management issues related to salmon conservation. These guidelines clarify what is needed in watershed plans for habitat restoration activities or more comprehensive watershed plans for salmon conservation that are already being developed locally in order for such plans to qualify for one or more of the following types of recognition: 1) The NMFS Section 4(d) Rule limit on take prohibitions and any streamlinedconsultationand permit procedures for habitat restoration activities included in a "Watershed Conservation Plan"; and any similar special 4(d) rule provision that may be developed by the U. S. Fish and Wildlife Service (USFWS). 2) Acceptance of the watershed plan by the Salmon Recovery Funding Board (SRFB) and other potential project funding sources, as a basis for project funding decisions. Endangered Species Act LUTC - December 18, 2000 Page 8 3) 4) Use of the watershed plan as one part of federal recovery p!ans under the ESA by NMFS and USFWS or as part of potential cooperative conservation agreements between the state and NMFS or USFWS as provided for by Section 6 of the ESA. Additional limits on take prohibitions under Section 4 or 10 of the ESA that can be provided by NMFS and USFWS for activities and programs in a comprehensive watershed plan that addresses land and water management issues related to salmon conservation in addition to habitat restoration activities. After acceptance by NMFS and USFWS, the Watershed Planning Guidelines for Salmon Conservation are intended to provide substantive guidance for watershed planning for voluntaryuse by thosejurisdictionsthat want their plan to qualify for the types of recognition under ESA outlined above. A watershed plan that is consistent with the approved guidelines will provide a means for ongoing ESA recognition (e.g. a limit on take prohibitions) for actions taken under that plan. The ESA recognition provided to a geographic area through watershed plans would support and complement any ESA recognition that may be provided to specific state or local programs through related Section 7 consultations,other Section 4(d)rule provisions, or Section 10 incidental take permits. It is also important for the Watershed Planning Guidelines for Salmon Conservation to be accepted by the institutions that provide funding for habitat preservation and restoration projects (i.e. Congress/BPA/NWPPC, Legislature/SRFB). Watershed plans and projects that are consistent with the accepted guidelines will help project proponents meet project funding criteria and also provide assurance to those providing the funding that the funds are being used effectively. J. Water Quali .ty Standards and Criteria for Assessing Water Quality [new section] The Department of Ecology is in the process of revising state water quality standards and the criteria by which water bodies are determined to be impaired or not. Workshops on the proposed new water quality standards will occur early next year. The proposed standards for dissolved oxygen and temperatureare based on the spawning and rearing needs ofsalmonids. Efforts are also underway to revise how Ecology determines that a stream or lake is not meeting a given standard. These criteria determine which water bodies go on the Clean Water Act 303(d) list. Federal Way may be impacted on Joes, Lakota, and Hylebos Creeks, all which are currently listed on the 303(d) list. Additional water bodies may be listed depending upon how the criteria are developed. K. Hylebos Watershed Action Committee [new section] The Hylebos Watershed Action Committee continues to meet and discuss actions for the Hylebos Creek System. Recently, the HWAC decided to wait on any recommendations for watershed planning activities until after the Pierce County Ecosystem Diagnosis and Treatment (EDT) study is completed. Members of the HWAC participate in the salmon watchers efforts on Hylebos Creek. To date for this fall, there are confirmed sightings of eleven Chinook, 69 Coho, 16 unknowns and one Chum salmon. Chinook have been observed as high in the system as S 364th and Coho have been observed beyond this into Brook Lake. II. Potential Effects of ESA on Federal Way City staff continue to evaluate the potential effects of the ESA listing on Federal Way and will be hiring a consultant in early 2001 to conduct an independent assessment of the City's current codes, regulations, programs and planning documents to determine what changes or revisions may be necessary along with their financial impacts to enable the City to comply with the legal obligations under the ESA. This information will be brought forth to the Council for consideration and potential incorporation into any budgetary changes in 2001. Endangered Species Act LUTC - December 18, 2000 Page 9 IV. Recommended Next Steps As stated in the June presentation, due to the complexity of the topic, the sheer number of players and activities in the ESA arena, the structure and pace in which negotiation on the 4(d) rule have taken place and the impending January 8, 2001 effective date, staff recommends the following next steps to properlyaddress this issue. 1. Continue with periodic updates and 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 within the first five months of 2001. Develop a 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. o Develop options and alternatives analysis for compliance with ESA 4(d) Rule for City Council consideration. Decide on an approach to the 4(d) rule that includes consideration of the Tri-County Proposal and the City's current programs. CR:jlf Consider as appropriate via program improvement request(s) for ESA 4(d) Rule compliance into a mid-year 2001 budget adjustment. k:\lutc\2000\esa update.doc DATE: .lune 26, 2000 TO: Phil Watkins, Chair Land Use and Transportation Committee FROM: Cary M. Roe, Public Works Director VIA: David H. Moseley, City Manager SUB.1ECT: 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 confirmation of, or revision to, staff's recommended "Next Steps." :[. 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 Endangered Species ACt (ESA) Congress originally passed the ESA in 1973 with the express purpose of "provid[ing] a mean.'-; 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. 153, 180, 98 S.Ct. 2279., 2294, 57 L. Ed.2d 117 (1978). B. How Does the ESA Work? 1. "Listing" 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 geographical 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 "Endangered" 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 modification, or degradation where it actually kill.,; or injures wildlife by significantly 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 Regulations 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'3, a branch of the National Oceanographic and Atmospheric Administration ("NOAA'~ within the Department of Commerce, ha.,; 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 LUTC - .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 limitation.,; 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. Interagency 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 b~ 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 species "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" Taking of Listed Species The ESA does not prohibit all taking of listed species. Section 10 permits allows for voluntar! 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 Listing of Puget Sound Fish Species On March 24, 1999, the National Marine Fisheries Services, (NMFS), issued a final determination ancl 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 fores~t 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 - June 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 fo~" issuing a 4(d) Rule to protect the Bull Trout. D. 4(d) Rule for Puget Sound Chinook Salmon A dral~ 4(d) Rule for seven endangered and threatened Evolutionarily Significant Units (ESU) of West Coast Salmonoids was published by NMFS on 3anuary 3,2000. It 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. In essence, rather than tell us "don't"take" listed species," the regulations say, "if you do X, NMFS 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 assure.,; 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, pesticide.,; 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 draf~ rules for submission to NrvlFS 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. Tri 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, recover:; 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 plank,s covered under the Tri-County Framework includes: · Road maintenance · Storm water · Riparian Management Areas · Watershed Assessment · Water Resource ]:nventory Area (WRLA) 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 - June 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. In the last three years of Phase I, cities and counties must finish the watershed plans. The "improved land use regulations" have been the most controversial part of the Tri-Counb/ discussions. Three options have been discussed: adoption 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 regulations 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 utilities 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'3, 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 ~t(d) approval from NMFS. ]:t 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. !n 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 - .lune 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 (1LA) that-provides for both a jurisdictional response to ESA compliance as well as the general groundwork for Watershed/Water Resource Inventory Areas (WRY) planning. The proposed TIA's are intended to provide a mechanism and governance structure for the joint participation in and funding of WRJA based watershed plans for the assessment, conservation, and restoration of fish habitat. (See attached draft :[IA 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 riparian 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 Association (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 Tri- 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 participant that 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. :In 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 :[nterlocal Agreements for WRJNWatershed Plan development. Endangered Species Act LUTC - 3une 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 Wa!/ codes and regulation, programs and activities, and long range planning. These areas of potential impact are best described by dividing the 12 programs or plank identified in the 4(d) Rule and thl.~ 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 Tnfrastructure · Habitat acquisition and Restoration Long Range Planning and Evaluation · WRIA 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 document.,; 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 LUTC - .June 26, 2000 Page 9 ~ZIZ. Confidential: Legal Liability Analysis A. Legal ObligaUons: 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 (Un/ted 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 driving or artificial lighting that resulting in the death or harassment of turtles (Loggerhead Turt/e v. County Counc//ofVo/usia County, 148 F.3d 1231 (11t~ 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. Coxe, 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 red-cockaded woodpecker, where Service's management of timber stands allowed harm of birds ($/erra Club v. Yeutter, 926 F.2d 429, 438-39 (5th 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. EPA, 882 F.2d 1294, 1301 (8th Cir. 1989) State liable for "take" of Palila, where state's practice of maintaining feral goats and sheep in palila's habitat harmed palila because sheep ate vegetation relied upon by pallia (Pa/#a v. Hawaii Dept. of Land and Nat. Resources, 639 F.2d 495, 497-98 (9th Cir. :[981). 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 ha.,; 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. 5509:1 (1996). Endangered Species Act LUTC - .lune 26, 2000 Page 10 Under 16 USC § 1540(b), the Secretary may also seek criminal 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 suit.,; 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 monetaq! penalties, even where the local government action indicated at least some disregard for ongoing "takes." There may be a variety of explanations 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 penalties (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 Iniunctive 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 interest, 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 Counc# of Vo/usia County, 92 F.Supp.2d 1296, 1301 (M.Do 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 Plymouth, 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 Turtle, 92 F.Supp. 1301. 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. Jo'. 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 - .lune 26, 2000 Page 11 (emphasis added). Tt 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). 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 10m Amendment may prevent a federal court from ordering a local jurisdiction to pass and enforce a specific piece of legislation. See, e.g., Loggerhead Turtle v. County Council of Volu$ia 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 suc~ authority without guidance from higher court). Other courts have taken a more aggressive approach, ordering a local jurisdiction to institute an outright ban on certain activities 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 Plymouth, 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. Zd. at 168-171. 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 regulato~ 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 cosUy. C, Conclusion Municipal liability for monetary penalties under the ESA is probably unlikely, particularly if the Cib/ adopts regulations intended to comply with the 4(d) Rule. Tnjunctive 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. The extent of injunctive relief awarded in prior cases suggests that a proactive approach is prudent. Endangered Species Act LUTC - .lune 26, 2000 Page 12 [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 June 21, 2000, staff recommends the following next steps to properly address this issue. 1o 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, anti planning documents against the final 4(d) Rule and identify any and all potential areas o'~ needed revisions or modification 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 CR: K:\memo\ESAstatus.doc DEC OB '00 14:11 FROM: T-445 P.O?/OZ 5nohom~ ~ "40c= cee, YJn~ County ~O~''~ DRAF';'~ MAN?~GEMENT ZONE CONCEPT MANAGEMENi. 1 Applicability: Applies to all development activities requiring a permit, approval or authorization. i~ nplemen~ed through Existing Statutory Authority 2 Management Zone is measured from the ordinary high water mark or channel migration zone. Implementation: There are three options for Management Zone implementation. Please see the Tri-County Draft Framework for more details. PROPERTY Illu_stration produced, b) King County GIS &Visual Q~mmunications um OOO2mng mrtZONEconceptlll#.ei8 WCv 12/08/00 FRI 13:09 [TX/RX NO 7077] GREEN/DUWAMISH AND WATERSHED FORUMS CENTRAL PUGET SOUND "WRIA 9 FORUM" Auburn Black'Diama nd Butler 'Co:yington .Des Moines .Enum~law Federal Way %King County ~ Maple Valley handy. Park Renton' .~eaTac October 14, 2000 Dear Elected Officials from All Local Governments in WRIA 9: I am pleased to inform you about, and strongly encourage your participation in, a groundbreaking new interlocal agreement (ILA) for watershed-based planning and action for the jurisdictions in Water Resource Inventory Area (WRIA) 9. This ILA represents an agreement among elected officials and senior staff from local governments throughout WRIAs 8 and 9. It provides for a collective approach for guiding and funding WRIA-based salmon conservation planning. It also refines the watershed planning process and clarifies the roles and responsibilities of local governments who choose to participate in these efforts. The ILA serves as a formal mechanism for demonstrating our collective commitment to watershed planning, which is a key piece of our local and regional Endangered Species Act (ESA) response and compliance strategy. It also provides a mechanism for the implementation of other habitat, water quality, and flood projects with regional, state, federal and non-profit funds as they become available. In order to provide budgetary certainty for the participating jurisdictions, our goal is to have this agreement signed and adopted by all participating jurisdictions by the end of the year. ?... '~eattle {-. · Tukwila Enclosed are the following documents: The final version of the ILA, dated 10/14/00; · A one-page summary of the ILA; · The final draft of the 2001 regional cost-share proposal; · Brief descriptions of the staff positions that will be funded by the ILA; and · Two graphics explaining organizational relationships under the ILA. These materials were developed by a representative policy group, consisting of elected officials from King County and several cities within the County. They developed a draft interlocal agreement for watershed planning and proposed a regional cost-share for the development of WRIA-based salmon conservation plans. This proposal was submitted to the Watershed Forums---consisting of elected officials from King County, Snohomish County, and other local governments from throughout the Snoqualmie, Lake Washington/Cedar/Sammamish, and Green/Duwamish watersheds--for review, modification, and approval. During the month of September, the Watershed Forums endorsed the ILA in principle, and member governments agreed to bring the draft agreement and the regional cost-share proposal to their individual jurisdictions for formal adoption. Elected Officials from WRIA 9 October 14, 2000 Page 2 With this letter, I invite you to carefully review the enclosed materials, and to adopt the enclosed ILA by the end of the year. If you have any questions about the content of the agreement, or would like assistance in presenting the agreement to your Council, please contact one of the following staff: Deb Eddy, Suburban Cities Association -- 206-236-7676 Jay Covington, City of Renton -- 425-430-6500 Alison Bennett, City of Bellevue -- 425-452-2808 Steve Moddelneyer, City of Seattle -- 206-386-1981 Michael Huddleston, King County Council staff-- 206-296-1672 Nancy Hansen, King County Water and Land Resources - 206-296-6570. The agreement is set up to be signed in counterparts, and you will see a separate numbered signature page for each jurisdiction. Upon appropriate signature from your jurisdiction, please send the agreement to: LeeAnn Merrill Water and Land Resources Division King County Department of Natural Resources 201 South Jackson Street, Suite 600 Seattle, WA 98104-3855 Upon receipt of all signatures, the King County Prosecuting Attorney's office will compile a single original of which copies will be made and distributed to all parties. Thank you in advance for your time, attention, and -- we hope -- participation. We are very much looking forward to working together with you under this groundbreaking regional agreement. Sincerely, Charles Booth Mayor, City of Auburn Enclosures INTERLOCAL AGREEMENT For the Watershed Basins within Water Resource Inventory Area 9 PREAMBLE THIS AGREEMENT ("Agreement") is entered into purspant to Chapter 39.34 RCW by and among the eligible county and city governments signing this agreement that are located in King County, lying wholly or partially within the management area of Watershed Resource Inventory Area ("WRIA") 9, which includes all or portions of the Green-Duwamish and Central Puget Sound forums, all political subdivisions of the State of Washington (collectively, for those signing this agreement, "parties"). The parties share interests in and responsibility for addressing long-term watershed planning and conservation for the watershed basins in WRIA 9 and wish to provide for planning, funding and implementation of various activities and projects therein. MUTUAL CONVENANTS AND AGREEMENTS 1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the meaning provided for below: 1.1 ELIGIBLE JURISDICTIONS: The governments eligible for participation in this Agreement as parties are the County of King and the Cities and Towns of Algona, Auburn, Black Diamond, Burien, Covington, Des Moines, Enumclaw, Federal Way, Kent, Maple Valley, Normandy Park, Renton, SeaTac, Seattle, and Tukwila. 1.2 WRIA 9 FORUM: The WRIA 9 Forum created herein is the goveming body responsible for implementing this Agreement and is comprised of designated representatives of eligible jurisdictions who have authorized the execution of and become parties to this Agreement. 1.3 WRIA 9 STEERING COMMITTEE: The WRIA 9 Steering Committee referred to herein is the cooperative representational body comprised of a balance of stakeholder representatives and any other persons who are deemed by the parties to this Agreement to be appropriate to the creation of WRIA-based Watershed Plans. 1.4 WRIA-BASED WATERSHED PLANS: WRIA-based Watershed Plans as referred to herein are those documents to be developed for WRIA 9 including its sub-basins which recommend actions related to watershed protection, restoration and salmon recovery. 1.5 WRIA SUB-FORUMS: WRIA Sub-Forums as referred to herein are those cooperative representational bodies currently meeting and working on issues, preparing plans and implementing projects within watersheds. These groups are comprised of elected officials from the general purpose governments located within the watershed. WP, IA 9 ILA 9-29 VERSION- 10/14/00 ~ 3:01 PM 1.6 MANAGEMENT COMMITTEE: Management Committee as referred to herein consists of five (5) elected officials or their designees which elected officials are chosen by the WRIA 9 Forum, according to the voting procedures in Section 5, charged with certain oversight and administrative duties on the WRIA 9 Forum's behalf. 1.7 SERVICE PROVIDER: Service Provider, as used herein, means that agency, government, consultant or other entity which supplies staffing or other resources to and for the WRIA 9 Forum, in exchange for payment. The Service Provider may be a party to this Agreement. 1.8 FISCAL AGENT: The Fiscal Agent refers to that agency or government who performs all accounting services for the WRIA 9 Forum, as it may require, in accordance with the requirements of Chapter 39.34 RCW. 1.9 STAKEHOLDERS: Stakeholders refers to those public and private entities within the WRIA who reflect the diverse interests integral for planning for the recovery of the listed species under the Endangered Species Act, which may include but is not limited to environmental and business interests. PURPOSES. The purposes of this Agreement include the following: 2.1 To provide a mechanism and governance structure for the joint funding, development, review and approval of WRIA-Based Watershed Plans. Such plans shall include reconnaissance, assessment and analysis of conditions and recommendations for the WRIA Forum. It is understood that the maximum financial or resource obligation of any participating eligible jurisdiction under this Agreement shall be limited to its share of the cost of developing the WRIA-Based Watershed Plans. To provide a mechanism for securing technical assistance and any available funding from state agencies or other sources. To provide a mechanism for the implementation of other habitat, water quality and flood projects with regional, state, federal and non-profit funds as may be contributed to the WRIA 9 Forum. To provide a framework for cooperation and coordination among the parties on issues relating to the WRIA or sub-WRIA planning or to meet the requirement of a commitment by any party to participate in WRIA-based or watershed basin planning in response to any state or federal law which may require such participation as a condition of any funding, permitting or other program of state or federal agencies, at the discretion of such party to this Agreement. To develop and articulate WRIA-based positions on salmon habitat, conservation and funding to state and federal legislators. 2.2 2.3 2.4 2.5 2 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM o 2.6 To provide for the ongoing participation of citizens and other stakeholders in such efforts and to ensure continued public outreach efforts to educate and garner support for current and future ESA efforts. It is not the purpose or intent of this Agreement to create, supplant, preempt or supersede the authority or role of any individual jurisdiction or water q,uality policy bodies such as the Regional Water Quality Committee. EFFECTIVE DATE AND TERM. This Agreement shall become effective upon its execution by at least five (5) of the eligible jurisdictions within WRIA 9 representing at least seventy per cent (70%) of the affected population, as authorized by each jurisdiction's legislative body. 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. ORGANIZATION AND NATURE OF WRIA 9 FORUM. The parties to this Agreement hereby establish a governing body for WRIA 9 and the Green-Duwamish watershed basin and associated Puget Sound drainages (hereinafter the "WRIA 9 Forum" the precise boundaries of which are established in Chapter 173-500 WAC, or as determined by the WRIA Forum) to serve as the formal governance structure for carrying out the purposes of this Agreement. Each party to this agreement shall appoint one (1) elected official to serve as its representative on the WRIA 9 Forum. The WRIA 9 Forum is a voluntary association of the County and city governments located wholly or partially within the management area of WRIA 9 and the Green-Duwamish watershed basin and associated Puget Sound drainages who choose to be parties to this Agreement. 4.1 Upon the effective execution of this agreement and the appointment of representatives to the WRIA 9 Forum, the WRIA g Forum shall meet and choose from among its members, according to the provisions of Section 5, five (5) elected officials or their designees, to serve as a Management Committee to oversee and direct the funds and personnel contributed under this Agreement, in accordance with the adopted annual budget and such other directions as may be provided by the WRIA 9 Forum. Representatives of the Fiscal Agent and Service Provider may serve as non-voting ex officio members thereof. The Management Committee shall act as an executive subcommittee of the WRIA g Forum, responsible for oversight and evaluation of any Service Providers or consultants, administration of the budget, and for providing recommendations on administrative matters to the WRIA 9 Forum for action, consistent with other subsections of this section.. 4.1.1 It is contemplated that services to the WRIA 9 Forum and WRIA 9 Steering Committee for the year 2001 shall be provided by Service Provider, King County Department of Natural Resources. The Management Committee 3 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM 4.2 shall prepare a Memorandum of Understanding to be executed with the ,Service Provider, to be approved by the WRIA 9 Forum, which shall set out the expectations for services so provided. Services should include, without limitation, identification of and job descriptions for dedicated staff in increments no smaller than .5 FTE, de,scription of any supervisory role retained by the Service Provider over any staff performing services under this Agreement, and a method of regular consultation between the Service Provider and the Management Committee concerning the performance of services hereunder. 4.1.2 Upon the effective execution of this Agreement, and the selection of the Management Committee, the Management Committee shall review existing work products and plans and make recommendations to the entire WRIA 9 Forum for action, including initial decisions related to work program, staffing and service agreements, and budget and financial operations, for the year 2001. All duties of the Management Committee shall be established by the WRIA 9 Forum. The WRIA 9 Forum shall have the authority to establish and adopt the following: 4.2.1 The WRIA 9 Steering Committee shall develop and propose for consideration, amendment and adoption by the WRIA 9 Forum, a scope of work for development of WRIA-based Watershed Plans, including planning priorities for each year of this Agreement, and performance review of work under this Agreement. The scope of work may provide for certain tasks or processes to be the responsibility of the WRIA Sub-Forums. The scope of work shall specifically identify the level of staff support to be provided to the WRIA Sub-Forums in furtherance of their agreed upon tasks or processes. 4.2.2. The WRIA 9 Forum shall by September 1 of each year, establish and approve an annual budget, establishing the level of funding and total resource obligations of the parties which are to be allocated on a proportional basis based on the average of the population, assessed valuation and area attributable to each party to the Agreement, in accordance with the formula set forth in Exhibit A, which formula shall be updated annually by the WRIA 9 Forum, as more current data becomes available. 4.2.3 The WRIA 9 Forum shall review and evaluate annually the duties to be assigned to the Management Committee hereunder and the performance of the fiscal agent and Service Provider(s) to this Agreement, and shall provide for whatever actions are necessary it deems appropriate to ensure that quality services are efficiently, effectively and responsibly delivered in the 4 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM performance of the purposes of this Agreement. In evaluating the performance of any Service Provider, at least every two years, the WRIA g Forum shall retain an outside consultant to perform a professional assessment of the work and services so provided. 4.2.4 The WRIA 9 Forum shall oversee and administer the expenditure of budgeted funds and shall allocate the utilization of resources contributed by each party or obtained from other sources in accordance with an annual prioritized list of planning activities within the WRIA during each year of this Agreement. 4.3 The WRIA 9 Forum may contract with similar watershed forum governing bodies or any other entities for any lawful purpose related hereto. The parties may choose to create a separate legal or administrative entity under applicable state law, including without limitation a nonprofit corporation or general partnership, to accept private gifts, grants or financial contributions, or for any other lawful purposes. 4.4 The WRIA 9 Forum shall adopt other rules and procedures that are consistent with its purposes as stated herein and are necessary for its operation. VOTING. The WRIA 9 Forum shall make decisions, approve scope of work, budget, priorities and any other actions necessary to carry out the purposes of this Agreement as follows: 5.1 Decisions shall be made 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 parties, or by a majority recommendation with a minority report. Any party who does not accept a majority decision may request weighted voting as set forth below. 5.2 In the event consensus cannot be achieved, as determined by rules and procedures adopted by the WRIA 9 Forum, the WRIA 9 Forum shall take action on a dual- majority basis, as follows: 5.2.1 Each party, through its appointed representative, may cast its weighted vote in connection with a proposed WRIA 9 Forum action. 5.2.2 The weighted vote of each party in relation to the weighted votes of each of the other parties shall be determined by the percentage of the annual contribution by each party set in accordance with Subsection 4.2.2 in the year in which the vote is taken. 5.2.3 For any action subject to weighted voting to be deemed approved, an affirmative vote must be cast by both a majority of the parties to this Agreement and by a majority of the weighted votes of the parties to this Agreement. No action shall be valid and binding on the parties to this Agreement until it shall receive majority votes of both the total number of 5 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM parties to the Agreement and of the members representing a majority of the annual budget contribution for the year in which the vote is taken. A vote of abstention shall be recorded as a "no" vote. CREATION, APPROVAL AND RATIFICATION OF WRIA-BASED WATERSHED PLANS. WRIA.based Watershed Plans shall be developed, drafted and recommended by the WRIA 9 Steering Committee, approved by the WRIA 9 Forum and subject to ratification by the legislative bodies of the parties to this Agreement, consistent with the following: 6.'/ The WRIA 9 Forum shall appoint a WRIA 9 Steering Committee, comprised of a balance of stakeholder representatives and any other persons who are deemed by the parties to this Agreement to be appropriate to the creation of WRIA-based Watershed Plans. It is intended that representatives of local general purpose governments will continue to participate on the WRIA 9 Steering Committee. The WRIA 9 Steering Committee shall be responsible for the development and recommendation of WRIA-based Watershed Plans consistent with the purposes of this Agreement and shall act as an advisory body to the WRIA 9 Forum. Changes in the membership or composition of the WRIA 9 Steering Committee shall be made pursuant to the voting procedures in Section 5. The WRIA 9 Forum shall establish procedures for naming and replacing representatives on the WRIA 9 Steering Committee. 6.2 The WRIA 9 Forum shall act to approve or remand any final long-term WRIA-based Watershed Plan prepared and recommended by the WRIA 9 Steering Committee within ninety (90) days of receipt of the final plan, according to the voting procedures described in Section 5. 6.3 In the event that any plan is not so approved, it shall be returned to the WRIA 9 Steering Committee for further consideration and amendment and thereafter returned to the WRIA 9 Forum for decision. 6.4 After approval of the plan by the WRIA 9 Forum, the plan shall be referred to the parties to this Agreement for ratification prior to the plan's submission to any federal or state agency for further action. Ratification means an affirmative action, evidenced by a resolution or ordinance of the jurisdiction's legislative body, by at least five jurisdictions within WRIA 9 representing at least seventy per cent (70%) of the total population of WRIA 9. Upon ratification, the WRIA 9 Forum shall transmit the WRIA- based Watershed Plan to any state or federal agency as may be required for further action. 6.5 In the event that either any state or federal agency to which such plans are submitted shall remand any such plan for further consideration, the plan shall be remanded to 6 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM the WRIA g Forum for consideration, which may include fudher referral to the WRIA 9 Steering Committee for recommendation on amendments thereto. 6.6 The parties agree that no WRIA-based Watershed Plan developed and funded pursuant to this Agreement shall be forwarded separately by any of them to any state or federal agency unless it has been approved ,and ratified as provided herein. OBLIGATIONS OF PARTIES; BUDGET; FISCAL AGENT; RULES. 7.1 Each party shall be responsible for meeting its financial obligations hereunder as established in the annual budget adopted by the WRIA 9 Forum under this Agreement, including all such obligations related to WRIA 9 Forum and WRIA 9 Steering Committee funding, technical support, and participation in related 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. 7.2 The maximum funding responsibilities imposed upon the parties during the first year of this Agreement shall not exceed the amounts set forth in Exhibit A, which shall be updated annually as described in Section 4.2.2. 7.3 No later than September 1 of each year of this Agreement, the WRIA 9 Forum shall adopt a budget, including its overhead and administrative costs, for the following calendar year. The budget shall propose the level of funding and other (e.g. staffing) responsibilities of the individual parties for the following calendar year and shall propose the levels of funding and resources to be allocated to specific prioritized planning activities within the WRIA. The parties shall thereafter take whatever separate legislative or other actions that may be necessary to timely address such individual responsibilities under the proposed budget, and shall have done so no later than December 1st of each such year. 7.4 Funds collected from the parties or other sources on behalf of the WRIA 9 Forum shall be maintained in a special fund by King County as fiscal agent and as ex officio treasurer on behalf of the WRIA 9 Forum pursuant to rules and procedures established and agreed to by the WRIA 9 Forum. Such rules and procedures shall set out billing practices and collection procedures and any other procedures as may be necessary to provide for its efficient administration and operation~ Any party to this Agreement may inspect and review all records maintained in connection with such fund at any reasonable time. LATECOMERS. A county or city government in King County lying wholly or partially within the management area of WRIA 9 and the Green-Duwamish watershed basin and adjacent Puget Sound drainages which has not become a party to this Agreement within twelve (12) months of the effective date of this Agreement may become a party only with the written 7 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM 10. 11. consent of all the parties. The provisions of Section 5 otherwise governing decisions of the WRIA 9 Forum shall not apply to Section 8. The parties and the county or city seeking to become a party shall jointly determine the terms and conditions under which the county or city may become a party. These terms and conditions shall include payment by such county or city to the parties of the amount determined jointly by t,he 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 WRIA 9 Forum and the parties on its behalf as of the date the county or city becomes a party. Any county or city that becomes a party pursuant to this section shall thereby assume the general rights and responsibilities of all other parties to this Agreement. TERMINATION This Agreement may be terminated by any party, as to that party only, upon sixty (60) days' written notice to the other parties. The terminating party shall remain fully responsible for meeting all of its funding and other obligations through the end of the calendar year in which such notice 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. It is expected that the makeup of the parties to this Agreement may change from time to time. Regardless of any such changes, the parties choosing not to exercise the right of termination shall each remain obligated to meet its respective share of the obligations of the WRIA 9 Forum as reflected in the annual budget. HOLD HARMLESS AND INDEMNIFICATION. 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 demands, suits, penalties, liabilities, damages, costs, expenses, or losses of any kind or nature whatsoever) arising out of or in any way resulting from such party's own negligent acts or omissions related to such party's participation and obligations under this agreement. Each party agrees that its obligations under this subsection extend to any claim, demand and/or cause of action 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 Section 9. NO ASSUMPTION OF LIABILITY. In no event do the parties to this Agreement intend to assume any responsibility, risk or liability of any other party to this Agreement or otherwise with regard to any party's duties, responsibilities or liabilities under the Endangered Species 8 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM 12. 13. 14. 15. 16. 17. Act, or any other act, statute or regulation of any local municipality or government, the State of Washington or the United States. VOLUNTARY AGREEMENT. This is a voluntary agreement and it is acknowledged and agreed that, in entering into this Agreement, no party is committing to adopt or implement any actions or recommendations that may be contained in a WRIA-based Watershed Plan developed pursuant to this Agreement. NO PRECLUSION OF ACTIVITIES OR PROJECTS. Nothing herein shall preclude any one or more of the parties to this Agreement from choosing or agreeing to fund or implement any work, activities or projects associated with any of the purposes hereunder by separate agreement or action, provided that any such decision or agreement shall not impose any funding, participation or other obligation of any kind on any party to this Agreement which is not a party to such decision or agreement. NO THIRD PARTY RIGHTS. Nothing contained in this Agreement is intended to, nor shall it be construed to, create any rights in any third party, including without limitation the WRIA 9 Steering Committee, NMFS, USFWS, any agency or department of the United States, or the State of Washington, or to form the basis for any liability on the part of the WRIA 9 Forum or any of the parties, or their officers, elected officials, agents and employees, to any third party. AMENDMENTS. This Agreement may be amended, altered or clarified only by the unanimous consent of the parties to this Agreement, represented by affirmative action by their legislative bodies. COUNTERPARTS. This Agreement may be executed in counterparts. APPROVAL BY PARTIES' GOVERNING BODIES. This Agreement has been approved for execution by appropriate action of each party's governing body. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the dates indicated below: Approved as to form: KING COUNTY By: By: Title: Title: Date: Date: 9 WRIA 9 ILA 9-29 VERSION- 10/14/00 - 3:01 PM WRIA ILA: A Summary (10/5/00) Main Purposes: · To provide a mechanism and governance structure for the joint funding, development, review, and approval of WRIA-based salmon conservation plans · To provide a mechanism for securing additional technical assistance and funding fi.om state and federal agencies and other sources · To provide a mechanism for the implementation of other habitat, water quality, and flood projects, using any regional, state, federal, and non-profit funds that may be contributed to or accumulated by the WRIA Forums · To develop and articulate WRIA-based state and federal legislative positions on salmon habitat conservation and funding · To provide for on-going participation of citizens and other stakeholders in these efforts, and to ensure continued public outreach efforts to educate and garner support for current and future ESA activities · To meet the requirement of a commitment by any party to participate in WRIA-based planning, in response to any state or federal law which may require such participation as a condition of any funding, permitting, or other state or federal program. Key Provisions: · Effective Date: Goal is January 1, 2001. · Term: Five years, with annual review and approval of work program and budget. · Organization: · Newly configured WRIA Forums consist of one elected official from all participating local governments in the Water Resource Inventory Area (WRIA). · WRIA Forums establish 5-member Management Committee to shape, direct, oversee, and evaluate implementation of ILA and expenditure of ILA-generated funds · King County is initial ILA service provider and fiscal agent · Cost-Sharing: Each party shall contribute funds under the ILA, based on a formula that averages population, geographic area, and assessed valuation. · Voting Procedures: Decisions are made by consensus. When consensus cannot be reached, decisions are made by a double-majority voting procedure, which requires a majority of the overall votes, plus a majority of the votes weighted by the party's financial contribution. · Plan Development, Review, Approval, and Ratification: · WRIA Steering Committees, comprised of balance of watershed stakeholders, develop proposed WRIA-based salmon conservation plans; · WRIA Forums, comprised of elected officials from participating local governments, review, remand if appropriate, and adopt WRIA Plan; · WRIA Plans ratified by individual local governments · Once ratified, WRIA Forums transmit WRIA Plan to any state or federal agency as may be required for further action · Latecomers: After 12 months from effectiveness date, latecomers to the ILA may join only with the written consent of all parties. Termination: The ILA may be terminated at any time by written agreement of all parties. A single party may terminate its participation upon 60 days notice. Exhibit Regional Watershed Funding WRIA Based Cost-share: WRIA 9 Only Note: Does not include watershed assessment technical work TOTAL: $433,000 Average of Pop / AV / WRIA 09 Population (Pop) Assessed Value (AV) Area Area WRIA 09 King Co. Portion Kin(] Co. Portion 1 Algona 0.1% $367 0.1% $415 0.1% $390 0.1% $391 1 Algona 2 Auburn 4.4% $19,074 6.0% $25,829 4.0% $17,243 4.8% $20,715 2 Auburn 3 Black Diamond 0.7% $3,063 0.7% $3,167 1.9% $8,333 1.1% $4,854 3 Black Diamond 4 Burien 5.5% $23,839 4.8% $20,912 2.3% $10,110 4.2% $18,287 4 Burien 5 Covington 2.4% $10,418 1.9% $8,275 1.8% $7,589 2.0% $8,761 5 Covington 6 Des Moines 5.0% $21,749 3.6% $15,440 2.0% $8,835 3.5% $15,341 6 Des Moines 7 Enumclaw 1.2% $5,362 0.8% $3,478 0.8% $3,264 0.9% $4,035 7 Enumclaw 8 Federal Way 3.0% $13,152 2.7% $11,574 1.4% $6,273 2.4% $10,333 8 Federal Way 9 Kent 13.3% $57,487 15.4% $66,691 8.9% $38,452 12.5% $54,210 9 Kent 10 King County 22.5% $97,551 20.0% $86,726 59.0% $255,652 33.9% $146,643 10 King County 11 Maple Valley 1.8% $7,671 1.7% $7,513 1.4% $5,910 1.6% $7,031 11 Maple Valley 12 Normandy Park 1.3% $5,633 1.6% $6,972 0.8% $3,467 1.2% $5,357 12 Normandy Park 13 Renton 3.4% $14,663 4.0% $17,331 2.0% $8,662 3.1% $13,552 13 Renton 14 Sea-Tac 4.4% $18,874! 6.5% $28,051 3.2% $13,993 4.7% $20,306 14 Sea-Tac 15 Seattle 28.2% $122,243 23.6% $102,259 7.5% $32,527 19.8% $85,676 15 Seattle 16 Tukwila 2.7% $11,856 6.6% $28,366 2.8% $12,301 4.0% $17,507 16 Tukwila Sub-Total $433,000 King Co. Sub-Total 100.0% $433,000 TOTAL NOTE: King County land area excludes the Upper Green River basin. WRIA 9 Regional Watershed 2001 Costs Position Staff Total Position Description FTE Cost WRIA/Forum Coordinator 1.00 $104,000 · P,esponsible for coordinating overall WRIA planning effort as directed by the WRIA Management Committee, including annual work program and budget, staff support to WRIA Forum and Steering Committee; · P,esponsible for supervision of other ILA-funded positions, and coordination with developers of technical work products Recovery Plan Manager 1.00 $97,000 · P,esponsible for production of the WP, IA planning products as scoped and directed by the WP, IA Management Committee. · Provides staffing for WRIA Steering Committee and/or Technical Action Teams Early Action Project 1.00 $97,000 · P,esponsible for ensuring on-the-ground Coordinator implementation of early action projects and other WP, IA Forum project priorities (e.g. SP,FB and KCD-funded habitat acquisition and restoration projects) · Provides technical assistance on habitat protection to individual jurisdictions Public Outreach 0.50 $46,000:. P,esponsible for WP, IA outreach activities on Coordinator behalf of WP, IA Forum and Steering Committee (eg watershed overflights, Green-Duwamish Restoration 2000, etc.) Admin Support 0.50 $40,000 · Provides administrative and logistical support and basic program assistance to coordinators and staff Sub-Forum CoOrdinator 0.50 $49,000 · Provides sub-forum coordination. Sub-Total 4.50 $433,000 WRIA 9 TOTALS 4.50 $4,33,000 Total Cost includes overhead rate of 22% and materials Relationship of Fiscal Agent, Service Provider to WRIA Forum, Management Committee WRTA 9 FORUM MANAGEMENT ¢OMMTTTEE X X X X X xx King Coun~ FT$¢AL AGENT: Renton King Co (Budget Office) S eaTac Collects and disburses money Seattle according to the budget established by the WR~A 9 Forum Tukwila X = ex officio on Management Committee Algona Auburn Black Diamond Burien Covington Des Moines Enumclaw Federal Way Kent Maple Valley Normandy Park 10/17/00 SERVTCE PROV]:DER : King Co (Dept of Nat'l Resources) X = ex officio on Management Committee ESA ]~nformational Slides Steering ~ Commi?tee//J LI WRIA Planning Framework: Interlocol Agreement Plan .... -...: .~ .. ~...,..-~ -O .... ......~ ~..~ -,~ ~' --'-, .?: -'~ '; '~;:i~ ."~. J ~_ ~ ,-.....- ....... ,< ~ :~:~ 7 NMFS WR:T.A 9 Forum ONE ELECTEb FROM EACH P AP, TICIP A TIN~ JU~ISDICTIO ~ Funding · Final Plan Approval 4anogemen~ bcommittee~/ CUSTOMIZED SUBGROUPS Plan Development WR'rA 9 Steering DEFINED :IN ]LA Science/technical work )ment of P la n ~ooas, 10/17/00 ESA Informationd Slides CITY OF~ DATE: December 18, 2000 TO: FROM: VIA: SUBJECT: Phil Watkins, Chair Land Use and Transportation Committee Ken Miller, Deputy Public Works Director ~ David H. Mos~~I~0ager 2001 Vadis Northwest Litter Removal Contract BACKGROUND Vadis Northwest has provided litter removal services from roads and City facilitiesthroughoutFederal Way since 1993 with a crew of five developmentally disabled individuals and one supervisor. Vadis Northwest also performs a variety of other low-skilled operations. This provides labor cost savings to the City, while providing useful employment to specially challenged individuals. The Vadis Northwest crew regularly removes litter and debris from all major rights of way in Federal Way and assists with the clean up of Surface Water facilities during the summer months. Based on feedback provided by Public Works maintenance supervisors, and the marked reduction of litter complaints since the service inception, the work provided by Vadis Northwest has represented an excellent value. DISCUSSION For the 2000 contract, the Department of Developmental Disabilities provided a list of seven agencies in the Puget Sound region that provide group-supported employment. Of these, only Vadis Northwest was set up to provide litter collection services. Vadis Northwest also provides similar services to the cities of Auburn and Puyallup, and to the Sumner School District. In late 1999, the City Attorney's office had provided an opinion that this type of service is not subject to competitive bidding or prevailing wage. This opinion was taken into consideration in developing the contract for the year 2000, as well as this proposed extension through 2001. Revisions were put in place to reflect the City's latest contract boilerplate, and a revised scope of work was added to more clearly focus the work tasks performed by the crew. This service is primarily funded in the Solid Waste and Recycling budget, with supplemental funding provided from the Surface Water Management budget. The contractor proposed a 2001 compensation level of $48,252, which reflects a two percent increase over compensation received in 1999 and 2000. This compensation level will offset increased costs in labor, insurance and fuel. The two percent increase is included in the Solid Waste and Recycling budget. RECOMMENDATION Staff recommends th~ following item be placed on the January 2, 2001 Council Consent Agenda: Authorize the City Manager to execute the Vadis Northwest contract amendment for a contract amount of $48,252 for 2001. This amount represents a two percent increase over the ! 999 and 2000 compensations to Vadis Northwest. RMV:jif k:\lutc~2000\vadis 12-00.doc CITY OF~ DATE: TO: FROM: VIA: SUBJECT: December 18, 2000 Phil Watkins, Chair Land Use and Transportation Committee Marwan Salloum, Street Systems Manag~'''''~' David H. ~ager AG 00-101; 2000 Asphalt Overlay Project Acceptance and Retainage Release BACKGROUND Prior to the release ofretainage on a Public Works construction project, the City Council must acceptthe work as complete to meet State Department of Revenue and State Department of Labor and Industries requirements. The 2000 Asphalt Overlay contract with Oldcastle Northwest, Inc. (ICON Materials) is complete. The final construction cost is $1,505,899.06. This is $292.55 below the $1,506,191.61 budget, including contingency, which was approved by the City Council on May 2, 2000. In accordance with City Council approval to add additional schedules if project funding allows, Schedules E, F and I were added to the contract and were completed within the original budget amount. Staff will be present at the December 18, 2000 Land Use and Transportation meeting to answer any questions the committee might have. RECOMMENDATION Staff recommends placing the following item on the January 16, 2001 Council Consent Agenda: Accept the Oldcastle Northwest, Inc. (ICON Materials) 2000 Asphalt Overlay Project, in the amount of $1,505,899.06, as complete. MS:jlf CC Cathy Rafanelli, Management Services Project file, AG 00-101 Day File k:\lutc~2000~2000 overlay final.doc The Sign Compliance History Presentation will be a Power Point presentation, requires no advance study, and has no attachments for this agenda packet.