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HomeMy WebLinkAbout5.906 Original Contract LEGAL DEPARTMENT William E. Bloor City Attorney [4531 ] Dennis Dickson Sr. Assistant City Attorney [4532] Heidi L. Greenwood Assistant City Attorney [4562] Candace Kathol Legal Assistant [4536] Diana Lusby Legal Administrative Assistant [4530] Jeanie DeFrang Legal Administrative Assistant [4530] Randi Felton Legal Records Specialist [4576] 5. CfOlP FORTANGEtES WAS H I N G TON, U. S. A. DATE: August 25, 2008 TO: Becky Upton, City Clerk FROM: William E. Bloor, City Attorney RE: NOAA Settlement Agreement Attached for safekeeping is the NOAA Settlement Agreement with signature pages for all parties. (i;g William E. Bloor, City Attorney Attachment WEB\dl G ILEGALIMEMOSIMEMOS 2008\NOAA Settlement 082508 Upton wpd ",.,,. OF Co q.<~ \t "''\. ,. "'I> : ... ~ ~: , (J "" ' ~ I ~~ IJ .rr~TU Of t-~ u.s. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Office of General Counsel, GCNW 7600 Sand Point Way N.E., Seattle, Washington 98115.6349 August 21,2008 William E. Bloor City Attorney 321 East 5th Street P.O. Box 1150 Port Angeles, W A 98362 RECEIVED AUG 2 f> Z008 PORT ANGELES LEGAl DEPARTMENT RE: NOAA Case No. NW050079, City of Port Angeles, W A Dear Mr. Bloor: Regarding the final settlement agreement in the above matter, enclosed for your records are original signature pages for NOAA and NMFS. Thank you for your assistance and courtesies in resolving this matter. Niel Moel er Regional Enforcement Attorney Encls. : 1. Signature pages (originals) ~~ r. -- ~"ffY oJ. " .t-. SETTLEMENT AGREEMENT BETWEEN THE CITY OF PORT ANGELES, WASHINGTON, THE NATIONAL OCEANIC & ATMOSPHERIC ADMINISTRATION, AND THE NATIONAL MARINE FISHERIES SERVICE This Settlement Agreement ("Agreement") is entered into by and among the City of Port Angeles, Washington ("City"), the National Oceanic & Atmospheric Administration ("NOAA"), and the National Marine Fisheries Service ("NMFS"). Throughout this Agreement, these entities are collectively referred to as the "Parties". WHEREAS, the Puget Sound chinook salmon (Oncorhynchus tshawytscha), has been listed as a threatened species pursuant to the federal Endangered Species Act, 16 U.S.C. ~ 1531, et seq. (ESA). 50 C.F.R. ~ 223.102(c)(8) [64 Fed. Reg. 14308 (March 24, 1999)]. The prohibitions of section 9(a)(1) of the ESA [16 U.S.C. ~ 1538(a)(1)] relating to endangered species apply to threatened Puget Sound chinook. 50 C.F.R. ~ 223.203(a); and WHEREAS, the Elwha River is a river located in Washington State flowing into Puget Sound, within the geographic boundaries of the listed portion of the Puget Sound chinook salmon Evolutionarily Significant Unit ("ESU"); and WHEREAS, the City owns, operates and maintains a water diversion system on the Elwha River, known as the City of Port Angeles Industrial Water Diversion, which supplies approximately six (6) million gallons of water per day from the Elwha River for industrial use by Nippon Paper Industries Co., Inc., under terms of a lease agreement; and WHEREAS, the City's Industrial Water Diversion consists of a channel which diverts water from the Elwha River into a pipe which runs through the City of Port Angeles; and . WHEREAS, the City periodically shuts off the water flow to the Industrial Water Diversion and de-waters the diversion channel using pumps in order to repair and maintain the diversion system; and WHEREAS, NMFS and NOAA allege that on or about May 5, 2005, the City, acting by and through its agents, employees or contractors, did cause the unauthorized "take" of one or more juvenile threatened Puget Sound chinook salmon within the meaning of 16 U.S.C. ~ 1532(19), by blocking the Industrial Water Diversion channel and draining the channel using improperly screened pumps, thereby killing an unspecified number of juvenile threatened Puget Sound chinook salmon in violation of the federal ESA, 16 U.S.C. ~ 1538(a)(1)(G), and 50 C.F.R. ~ 223.203(a); and -1- ...,IS ,'f. . WHEREAS, NOAA is entering into this Agreement in exercise of its enforcement discretion to settle alleged violations of section 9 of the federal ESA, and related federal regulations; and WHEREAS, the Parties wish to resolve these alleged violations of the ESA in a timely manner. The Parties agree that they have a mutual interest in avoiding potential future "take" of Puget Sound chinook and other listed anadromous fish species, and in promoting the conservation and recovery of those species; and WHEREAS, NMFS and NOAA recognize that the City's fulfillment of the terms of this Agreement will adequately mitigate for the alleged take of Puget Sound chinook salmon on or about May 5,2005. Except to the extent expressly provided in this Agreement, NMFS and NOAA do not otherwise waive their right to enforce the ESA in any manner they deem appropriate; and WHEREAS, the Parties desire to settle these matters under the terms and conditions set forth below, NOW, THEREFORE, the Parties hereby agree on the following terms and conditions: I. PURPOSE OF AGREEMENT This Agreement has three primary purposes: A. To resolve all potential violations of the ESA and related regulations associated with the fish kill incident on or about May 5, 2005, at the City's Industrial Water Diversion on the Elwha River. B. To provide appropriate safeguards to minimize the potential recurrence of a similar fish kill incident at the City's Industrial Water Diversion on the Elwha River. C. To provide appropriate mitigation for any taking of threatened Puget Sound chinook salmon that occurred as a result of the fish kill incident on or about May 5, 2005, at the City's Industrial Water Diversion on the Elwha River. II. CONSIDERATIONS IN REACHING SETTLEMENT A. After considering all of the facts and circumstances involved in this case, NOAA and NMFS have concluded that neither judicial action nor administrative remedies are necessary to address the potential violations arising from the fish kill incident on or about May 5, 2005, at the City's Industrial Water Diversion on the Elwha River, so long as the damage to the fishery resource can be mitigated, the likelihood of additional incidents minimized, and the loss to the fishery resource compensated as provided in this Agreement. All Parties agree that such potential violations will be resolved through this Settlement Agreement. -2- .1. .' . III. PREVENTION OF SIMILAR INCIDENTS AND MITIGATION OF IMPACTS A. The City hereby commits to complete the following measures to prevent a recurrence of the fish kill incident on or about May 5, 2005, at the City's Industrial Water Diversion on the Elwha River and to minimize the impact of any such future incidents: 1. The City will notify NMFS (Matt Longenbaugh), the Lower Elwha- Klallam Tribe (hereafter LEKT) (Mike McHenery), and the Washington Department of Fish and Wildlife (WDFW) local Regional Habitat Manager (Chris Byrnes) at least five business days in advance of any planned maintenance of the diversion system. The notification will include a proposed work schedule, a thorough description of the type of maintenance to be performed, and a thorough description of the manner in which the maintenance work will be conducted. If required by NMFS, the City will conduct fish recovery efforts as necessary and as prescribed by NMFS, WDFW or the LEKT representative prior to any maintenance work on the diversion system. 2. Within 30 days from the effective date of this Agreement, the City's Public Works and Utilities Department will adopt and provide to NOAA a policy that will adopt and implement for all future City projects involving its Industrial Water Diversion System the Juvenile Fish Screen Criteria, National Marine Fisheries Service, Northwest Region, Revised February 16, 1995, with Addendum of May 9, 1996, including any subsequent reVISIOn. B. The City hereby commits to complete the following measures to mitigate for any taking of threatened Puget Sound chinook salmon as a result of the fish kill incident on or about May 5, 2005, at the City's Industrial Water Diversion on the Elwha River: 1. The City owns approximately 258 live trees located near river mile 3 of the Elwha River. Of those, the City estimates approximately 57 trees are potentially suitable as "key pieces" for use in engineered logjams (ELl's). The City agrees that, within 30 days from the effective date of this Agreement, the City will donate those trees to the Lower Elwha Klallam Tribe for use by the Tribe in constructing and installing Ell's in the lower Elwha River, to provide habitat enhancements for anadromous fish, and in furtherance of the Elwha River Ecosystem and Fisheries Restoration Act (106 Stat. 3173). The City commits to working with NMFS, and the U.S. National Park Service (NPS), and to permit the Tribe or NPS, including their agents, employees, and contractors, to access and remove the trees, including providing timely access along the City's Industrial Pipeline Road. Compliance with this subsection m.B.l. shall be deemed complete upon " -;)- .' ,'t. donation of the trees, acceptance by the Tribe, and prompt issuance by the City of such easement, right-of-way, or permit as may be necessary to authorize access to the trees by the Tribe, NPS, or their agents, employees, and contractors. 2. Within 30 days from the effective date ofthis Agreement, the City will establish a separate City treasury account (the "Ennis Creek Account"), in the amount of $20,000, to be used exclusively for the purpose of funding anadromous fish habitat restoration and enhancement projects on Ennis Creek, a salmon stream located in and near the City of Port Angeles, in Clallam County, Washington. The City will actively seek to maximize the value of the money in the Ennis Creek Account by using it as a local match to obtain grants and other cash or in-kind contributions, up to a maximum goal of approximately $100,000 in working capital to be used for fish habitat restoration and enhancement projects on Ennis Creek. The City shall consult with NMFS, as the City deems necessary, or as may be required by statute or regulation, to resolve any questions it may have concerning projects to be funded from the Ennis Creek Account. The City will provide an annual report to the NOAA and NMFS contacts identified in this Agreement regarding projects accomplished, projects planned, funds expended, and funds remaining in the account. All funds in the account shall be expended by not later than five (5) years from the effective date of this Agreement. The City may request a twelve (12) month extension for expenditure of all funds in the account if needed to ensure adequate time for pursuit and receipt of grants. 3. Within 30 days from the effective date of this Agreement, the City will convey to the North Olympic Land Trust, at no cost, a permanent conservation easement covering approximately 2.8 acres of City-owned land located adjacent to Ennis Creek, in Clallam County, Washington, which is described in the attached legal description, marked as Exhibit A to this Agreement (hereafter the "Ennis Creek Property"). The conservation easement shall include and permanently convey any and all City development rights as to the Ennis Creek Property, and shall permanently restrict the use of the property for any purpose other than the exclusive purposes of (1) protecting, preserving, maintaining, restoring, improving, and conserving the property as a natural area for fish, wildlife, and plant habitat, and (2) public wildlife viewing, nature walks, trails, and other compatible uses. IV. GENERAL PROVISIONS A. NOAA and NMFS agree that compliance with this Agreement will satisfy any potential civil liability the City may have for violations of the ESA arising out of the fish kill incident on or about May 5, 2005, at the City's Industrial Water Diversion on the Elwha River. Except as expressly provided in this Agreement, -4- NOAA and NMFS do not waive their rights to enforce the ESA against the City as they may deem appropriate. B. If the City breaches this Agreement by failing to perform its obligations under the Agreement, NOAA may institute administrative enforcement proceedings against the City, or request that the Attorney General of the United States initiate judicial enforcement proceedings against the City, or seek enforcement ofthe terms of this Agreement. In the event NOAA institutes any such proceedings or actions, the City will be entitled to all normal notices and/or opportunities for a hearing. C. The provisions ofthis Agreement shall apply to and be binding on the Parties and theirs respective successors and assigns. D. This written Agreement, including the documents attached hereto or incorporated by reference herein, constitutes the sole and entire agreement between the Parties and supersedes any prior agreements or understandings. This Agreement may be modified by mutual consent of the Parties. Any modification of this Agreement shall be in writing and signed by the Parties. E. All notices and communications required under this Agreement shall be made to the Parties through each of the following persons and addresses: 1. TO NOAA: Niel Moeller Regional Enforcement Attorney NOAAlGCNW 7600 Sand Point Way, N.E. Seattle, W A 98115 Phone: (206) 526-6238 Fax: (206) 526-6542 2. TO NMFS: Matt Longenbaugh National Marine Fisheries Service 510 Desmond Drive SE Lacey, W A 98503 Phone: (360) 753-7761 Fax: (360) 753-9517 -5- '/'.: 3. TOELWHA-KLALLAMTRIBE Mike McHenery Elwha Fisheries 51 Hatchery Road Port Angeles, W A 98363 Phone: (360) 457-4012, extension 14 Fax: (360) 452-4848 4. TO WDFW Chris Byrnes Washington Dept. ofFish and Wildlife 332 E. 5th Street Port Angeles, W A 98362 Phone: (360) 417-1426 Fax: (360) 417-3302 5. TO CITY: Mark E. Madsen, City Manager City of Port Angeles 321 E. Fifth Street! P.O. Box 1150 Port Angeles, W A 98362 Phone: (360) 417-4500 Fax: (360) 417-4509 F. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and such counterparts shall constitute one and the same agreement. G. This Agreement shall become effective upon signature by all Parties. H. Each undersigned representative of a Party to this Agreement certifies that he or she is fully authorized by that Party to enter into and execute the terms of this Agreement and legally bind such Party to this Agreement. -6- . :~.' NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION By: Title: Date: NATIONAL MARINE FISHERIES SERVICE By: Title: Date: CITY OF PORT ANGELES, WASHINGTON By: f1l.j/~?fjJJ~ ~hE~ Madse Title: City Manager Date: August /2- , 2008 -7- " Date: NATIONAL MARINE FISHERIES SERVICE By: Title: Date: CITY OF PORT ANGELES, WASHINGTON / By: Title: Date: -7- ., " NA TIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION By: Title: Date: By: Title: Date: '^A- ~ ~ I-Ju 1,7 h..J tJ {I, C-e CITY OF PORT ANGELES, WASHINGTON By: Title: Date: -7- I .\ 4 J ~ ';, EXHIBIT A to NOAA - City of Port Angeles Settlement Agreement Ennis Creek Property Legal Description A portion of the southeast quarter ofthe southwest quarter, Section 12, Township 30 North, Range 6 West of the Willamette Meridian, Clallam County, Washington, described as follows: Beginning on the north line of said southeast quarter of the southwest quarter, North 87040'21" West 408.20 feet from the northeast comer there~f, at the northeast comer of Tract 3 as shown per survey recorded in Volume 11 at Page 44 of Surveys, Clallam County, Washington; thence South 13014'02" West 439.69 feet along the east line of said Tract 3 to the beginning of a non-tangent curve concave to the west, the radius point of which bears South 80043'55" West 450.00 feet; thence continuing along said east line southerly along said curve 181.40 feet through a central angle of23005'48"; thence continuing along said east line South 13049'43" West 45.46 feet to the southeast comer of said Tract 3; thence South 85044'18" West 55.03 feet along the south line of said Tract 3 to the east margin of Del Guzzi Drive and a non-tangent curve concave to the southwest, the radius point of which bears South 82003'35" West 134.87 feet; thence northwesterly along said east margin and along said curve 74.10 feet through a central angle of 31 028'46"; thence leaving said east margin North 38015'44" East 28.91 feet; thence North 11012'00" West 36.31 feet, thence North 10011'43" East 93.28 feet; thence North 40047'48" West 114.52 feet; thence North 30057'23" West 126.14 feet; thence North 08053'49" East 162.08 feet; thence North 55005'40" West 40.93 feet; thence North 13013'16" West 76.58 feet to the north line ofthe southeast quarter of the southwest quarter of said Section 12, said north line being coincident with the north line of said Tract 3; thence South 87040'21" East 341.64 feet along said north line to the northeast comer of said Tract 3 and the Point of Beginning. Contains 122,754 square feet more or less. Description based on surveys recorded in Volume 11 at Page 44 and Volume 37 at Page 82, Records ofClallam County, Washington.