HomeMy WebLinkAboutPW11-356 - Original - U.S. Fish & Wildlife Service (FWS) & National Marine Fisheries Service (NMFS) - Clark Springs Water System - 09/26/2011 Records M � � geme�i
KENT - - Document
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CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name: U.S. Fish & Wildlife Service and National Marine Fisheries Service
Vendor Number:
JD Edwards Number
Contract Number:
This is assigned by City Clerk's Office
Project Name: Clark Springs Water Supply System/Habitat Conservation Plan (HCP)
Implementing Agreement
Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ❑ Contract
® Other:
Contract Effective Date: Termination Date: 2061
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Contract Renewal Notice (Days):
Number of days required notice for termination or renewal or amendment
Contract Manager: Nancy Yoshitake/Kelly Peterson Department: Public Works
Detail: (i.e. address, location, parcel numbers tax id, etc.):
S:Public\RecordsManagement\Forms\ContractCover\adcc7832 1 11/08
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IMPLEMENTING AGREEMENT
for the
CITY OF KENT
for
CLARK SPRINGS WATER SUPPLY SYSTEM
HABITAT CONSERVATION PLAN
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CONTENTS
1.0 PARTIES....................................-I................I...................
2.0 RECITALS AND PURPOSES.................................................................................1
2.1 Recitals....................................................................
2.2 Purposes......................................................................................
3,0 .........................
3.1 Terms defined in Endangered Species Act.................... 2
3.2 "Changed Circumstances"........................ ...................................2
3.3 "Covered activities".....................................................................................2
3.4 "Covered lands".......... ...........................................................................2
3.5 "Covered species?..................................................................................
3.6 "HCP...... .................. ................................................................2
3.7 "Listed species".........................................................................................3
3.9 "Permit".............................. ............................................3
3.9 "Permittee...........I................. ............................................................. .
3.10 "Take".................................... ......................................................I.........
3.11 "Unforeseen Circumstances"............................................................................3
3.12 "Unlisted species............. ...........................................................—..—..3
4.0 OBLIGATIONS OF THE PARTIES,....»........... ........
4.1 Obligations of Permittee............................ ............................................."..3
4.2 obligations of the Services........................... .................I.................3
4.2.1 Permit coverage............»............................»..............»»......................3
4.2 2 "No surprises"assurances......................................„... ...„......»...„..„..3
4.3 Interim obligations upon a finding of unforeseen circumstances....................4
5.0 INCORPORATION OF HCP...»..„...„........................ »»..»...»..».„»...„. ».....» ....4
6.0 TERM........»....„..............„............................................„..................................................4
6.1 Initial term..........»......................».»...„..».......»........».......................................4
6.2 Permit suspension or revocation....»......»......»...».........................................4
6.3 Relinquishment of the permit............»..........»...»„.... ..»..»»....»..................4
6.3.1 Generally.....................».......„......».»»..»................».............................4
6.3.2 Procedure for relinquishment..........».»....».»....»......»...........................5
6.4 Treatment of unlisted species........»................»......».....,..................................5
6.5 Extension of the permit....»...»»......»..........»..»..................................................5
7.0 FUNDING.........»..............»....».„............. »„„...................»..............„......»»„» 5
8.0 MONITORING AND REPORTING......................„..............................................».....5
8.1 Planned periodic reports.........»...............».......»................................................5
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8.2 Other reports..».......................».......»......».......»»......„......„..............„.............6
8.3 Certification of reports..„............................„.......
„„..».»............»»,...„.»..»..6
8.4 Monitoring by Services.....................................».......».....................................6
9.0 CHANGED CIRCUMSTANCES..................»».....».».......„»...........».»....................6
9.1 Permittee-initiated response to changed circumstances......„.........................6
9.2 Service-initiated response to changed circumstances................... ..„.»....»....6
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9.3 Listing of species that are not covered species............................................6
10.0 ADAPTIVE -MANAGEMENT............»„......................„..............„ .... ....»...............7
10.1 Permittee-initiated adaptive management.............. ....„ ...»---»-----------------7
10.2 Service-initiated adaptive management..... ..»..............»...„..»»....„...............7
10.3 Reductions in mitigation.........»....................................................................7
10.4 No increase in take ...................................„................ ............................»...7
11.0 LAND TRANSACTIONS............»...............„..........».....................„...............................7
11.1 Acquisition of land by Permittee...............„...............»......................................7
11.2 Disposal of land by Permittee.......»...................».„....................„.......».............8
12.0 MODIFICATIONS AND AMENDMENTS...»... »... .»..„.........................................8
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12.1 Minor modifications........................................„..................................................8
12.2 Amendment of the permit..........„................................„.„...............................9
13.0 REMEDIES,ENFORCEMENT,AND DISPUTE RESOLUTION..............„..............9
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13.1 In general........„...............»» .„»......................................„.»...............................9
13.2 No monetary damages.............».........................................................................9
13.3 Injunctive and temporary relief......„.......„......„............................„„.............9
13.4 Enforcement authority of the United States.....................„....»......»»........„...9
13.5 Dispute resolution.............................................».......„......„....„„.....................»9
14.0 MISCELLANEOUS PROVISIONS...„........»„....»......» ............».»..»......»..».........10
14.1 No partnership............................................................................................10
14.2 Notices...„.................................»...............„...„...........».............. ....„.„...»....10
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14.3 Entire agreement......»»..»». ..»»»..»»»».... .»»....»»»..». ....,....».............11
14.4 Elected officials not to benefit ......»...,.»»,...».»...........».».............................11
14.5 Availability of funds.................................... .................... ..»...................11
14.6 Duplicate originals..............»....................................»......»».............................11
14.7 No third-party beneficiaries........» ..».......»....................».............................12
14.8 Relationship to the ESA and other authorities........»......_........»..................12
14.9 References to regulations.................................................................................12
14.10 Applicable laws......».»».........».......................»................................»............12
14.11 Successors and assigns......................................................»............................12
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1.0 PARTIES
The parties to this Implementing Agreement are the City of Kent. Washington, a municipal
corporation ("Permittee"); the United States Fish and Wildlife Service (FWS); and the National
Marine Fisheries Service(NMFS). In this agreement, FWS and NMFS are collectively referred
to as the"Services."
2.0 RECITALS AND PURPOSES
2.1 Recitals. The parties have entered into this agreement in consideration of the
following facts:
(a) The Clark Springs Water Supply System("Clark Springs System")has
been determined to provide.or potentially provide,habitat for the
follow ing listed species:
THREATENED SPECIES
Chinook salmon (Oncorhynchus tshawytscha)
Bull trout(Salvetinus confluentus)
Steelhead (Oncorhynchus mykiss)
(b) The Clark Springs System has also been determined to provide,or
potentially provide,habitat for the following unlisted species:
SPECIES OF CONCERN
Coho salmon (Oncorhynchus kisutch)
Sockeye salmon (Oncorhynchus nerka)
Chum salmon (Oncorhynchus keta)
Coastal cutthroat trout(Oncorhyrnchus clarki clarkr)
Pacfic lamprey(Lampetra tNdentata)
River lamprey(Lampetra ayrest)
(c) Permittee has developed a series of measures, described in the habitat
conservation plan (HCP), to minimize and mitigate to the maximum
extent practicable the effects of take of covered species incidental to
Permittee's covered activities.
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2.2 Purposes. The purposes of this agreement are:
(a) To ensure implementation of each of the terms of the HCP;
(b) To describe remedies and recourse should any party fail to perform its
obligations as set forth in this agreement;and,
(c) To provide assurances to Permittee that as long as the terms of the HCP, the
permit,and this agreement are performed, no additional mitigation will be required of Perinittee,
with respect to covered species,except as provided for in this agreement or required by law.
3.0 DEFI1tiTIIONS
The following terms as used in this agreement will have the meanings set forth below:
3.1 Terms defined in Endangered Species Act. Terms used in this agreement and
specificaby defined in the Endangered Species Act (ESA) or in regulations adopted by the
Services under the ESA have the same meaning as in the ESA and those implementing
regulations,unless this agreement expressly provides otherwise
3.2 "Changed circumstances" means changes in circumstances affecting a Covered
Species or the geographic area covered by the HCP that can reasonably be anticipated by the
permittee and that can reasonably be planned for in the HCP(e g.the listing of a new species,or a
fire or other natural catastrophic event in areas prone to such event) Changed circumstances and
the planned responses to those circumstances are described in Section 2 1.2 3 of the HCP.
Changed circumstances are not Unforeseen Circumstances.
3.3 "Covered activities" means certain activities carried out by Permittee on
covered lands that may result in incidental take of covered species described in Section 1.6 of the
HCP.
3.4 "Covered lands" means the lands upon which the permit authorizes incidental
take of covered species and the lands to which the HCP's conservation and mitigation measures
apply. These lands are described in Section 15 of the HCP.
3.5 "Covered species" means the following species, each of which the HCP
addresses in a manner sufficient to meet all of the criteria for issuing an incidental take permit
under ESA § 10(a)(1)(B)All covered species are listed in Section 2 1 of this agreement.
3.6 "HCP"means the habitat conservation plan prepared by Permittee for the Clark
Springs Water Supply System,related property,and activities identified in the HCP.
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3.7 "Listed species" means a species (including a subspecies, or a distinct
population segment of a vertebrate species) that is listed as endangered or threatened under the
ESA.
3.8 "Permit" means the incidental tale permit issued by the Services to Permittee
pursuant to Section 10(a)(1)(B) of the ESA for take incidental to covered activities on [project
name/sue], as it may be amended from time to time.
3.9 "Permittee"means the City of Kent,Washington,a municipal corporation of the
State of Washington.
3.10 "Unforeseen circumstances" means changes in circumstances affecting a
species or geographic area covered by a conservation plan that could not reasonably have been
anticipated by plan developers and the Services on the effective date of this agreement, and that
result in a substantial and adverse change in the status of the covered species.
3.11 "Unlisted species" means a species (including a subspecies, or a distinct
population segment of a vertebrate species)that is not listed as endangered or threatened under
the ESA.
4.0 OBLIGATIONS OF THE PARTIES
4.1 Obligations of Permittee. Permittee will fully and faithfully perform all
obligations assigned to it under this agreement,the permit,and the HCP.
4.2 Obligations of the Services. Upon execution of this agreement by all parties,
and satisfaction of all other applicable legal requirements, the Services will issue Permittee a
permit under Section 10(a)(1)(B) of the ESA, authorizing incidental take by Permittee of each
listed covered species resulting from covered activities on covered lands.
4.2.1 Permit coverage. The permit will identify all covered species. The
permit will take effect for listed covered species at the time the permit is issued. Subject to
compliance with all other terms of this agreement, the permit will take effect for an unlisted
covered species upon the listing of such species.
4.2.2 "No surprises"assurances. Provided that Permittee has complied with its
obligations under the HCP,this agreement, and the permit,the Services can require Permittee to
provide mitigation beyond that provided for in the HCP only under unforeseen circumstances,
and only in accordance with the "no surprises" regulations at 50 C.F.R. §§ 17 22(bXS),
17.32(b)(5),222.22(g).
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4.3 Interim obligations upon a finding of unforeseen circumstances. If the
Services make a finding of unforeseen circumstances, during the period necessary to determine
the nature and location of additional or modified mitigation, Penmittee will avoid contributing to
appreciably reducing the likelihood of the survival and recovery of the affected species.
5.0 INCORPORATION OF HCP
The HCP and each of its provisions are intended to be, and by this reference are, incorporated
herein In the event of any direct contradiction between the terms of this agreement and the HCP,
the terms of this agreement will control. In all other cases, the terms of this agreement and the
terms of the HCP will be interpreted to be supplementary to each other.
6.0 TERM
6.1 Initial Term. This agreement and the HCP will become effective on the date
that the Services issue the permit. This agreement.the HCP, and the permit will remain in effect
for a period of 50 years from issuance of the original permit,except as provided below.
6.2 Permit suspension or revocation. The Services may suspend or revoke the
permit for cause in accordance with the laws and regulations in force at the time of such
suspension or revocation. (See 5 U S.0 § 558; 50 C.F.R. §§ 13.27 - 13.29, 222.27; 15 C.F.R.
Part 904.) Such suspension or revocation may apply to the entire permit, or only to specified
covered species, covered lands, or covered activities In the event of suspension or revocation,
Permittee's obligations under this agreement and the HCP will continue until the Services
determine that all take of covered species that occurred under the permit has been fully mitigated
in accordance with the HCP
6.3 Relinquishment of the permit.
6.3.1 Generally. Permittee may relinquish the permit in accordance with the
regulations of the Services in force on the date of such relinquishment. (These regulations are
currently codified at 50 C F.R. §§ 13 26,220.31.) Notwithstanding relinquishment of the permit,
Pennittee will be required to provide post-relinquishment mitigation for an% take of covered
species that the Services determine will not have been fully mitigated under the HCP by the time
of relinquishment. Permittee's obligations under the HCP and this agreement will continue until
the Services Notify Penmittee that no post-relinquishment mitigation is required, or that all post-
relinquishment mitigation required by the Services is completed. Unless the parties agree
otherwise, the Services may not require more mitigation than would have been provided if
Pennittee had carried out the full term of the HCP.
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6.31 Procedure for relinquishment. If Permittee elects to relinquish the
permit before expiration of the full term of the HCP,Permittee will provide notice to the Services
at least 120 days prior to the planned relinquishment. Such notice will include a status report
detahmg the nature and amount of take of all covered species, the mitigation provided for those
species prior to relinquishment, and the status of Permittee's compliance with all other terms of
the HCP. Within 120 days after receiving a notice and status report meeting the requirements of
this paragraph,the Services will give notice to Permittee stating whether any post-relinquishment
mitigation is required and, if so, the amount and terms of such mitigation, and the basis for the
Services' conclusions. If the Services determine that no post-relinquishment mitigation is
required, all obligations assumed by the parties under this agreement will terminate upon the
Services' issuance of such notice. If Permittee disagrees with the Services' determination, the
parties may choose to use the dispute resolution procedures described in Section 13 of this
agreement Pe-rmittee will continue to carry out its obligations under the HCP until any such
dispute is resolved. If the parties are unable to agree,the Services will have the final authority to
determine whether Permittee is required to provide post-relinquishment mitigation.
6.4 Treatment of unlisted species. For purposes of paragraph 6.2 and 6.3.unlisted
covered species will be treated as though they were listed species in determining the amount of
take and the mitigation required.
6.5 Extension of the permit. Upon agreement of the parties and compliance with all
applicable laws, the permit may be extended beyond its initial term under regulations of the
Services in force on the date of such extension. If Permittee desires to extend the permit, it will
so notify the Services at least 180 days before the then-current term is scheduled to expire.
Extension of the permit constitutes extension of the HCP and this agreement for the same amount
of time,subject to any modifications that the Services may require at the time of extension.
7.0 FUNDING
Permittee warrants that it has,or shall obtain and shall expend such funds as may be necessary to
fulfill its obligations under the HCP. Permittee will promptly notify the Services of any material
change in Permittee's financial ability to fulfill its obligations. In addition to providing any such
notice.Permittee will provide the Services with a copy of its annual budget for implementation of
the HCP each year of the permit, or with such other reasonably available financial information
that the parties agree will provide adequate evidence of Permittee's ability to fulfill its
obligations.
&0 MONITORING AND REPORTING
8.1 Planned periodic reports. As described in Chapter 5 of the HCP, Permittee
will submit periodic reports describing its activities and results of the monitoring program
provided for in the HCP
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8.2 Other reports. Permittee will provide,within 30 days of being requested by the
Services, any additional information in its possession or control related to implementation of the
HCP that is requesiec by the Services for the purpose of assessing whether the terms and
conditions of the permit and the HCP, including the HCP s adaptive management plan, are being
fully implemented.
8.3 Certification of reports. All reports will include the following certification
from a responsible company official who supervised or directed preparation of the report:
I certify that, to the best of my knowledge, after appropriate inquiries of all
relevant persons involved in the preparation of this report, the information
submitted is true accurate,and complete.
8.4 Monitoring by Services. The Services may conduct inspections and monitoring
in connection with the pennit in accordance with their regulations. (See 50 C.F.R. §§ 13.47,
220,47)
9.0 CHANGED CIRCUMSTANCES
9.1 Permittee-initiated response to changed circumstances. Permittee will give
notice to the Services within seven days after learning that any of-me changed circumstances
listed in Section 2 3.2.3 of the HCP has occurred As soon as practicable thereafter,but no later
than 30 days after learning of the changed circumstances, Permittee will modify its activities in
the manner described in Section 2 1 2.3 of the HCP.to the extent necessary to mitigate the effects
of the changed circumstances on covered species, and will report to the Services on its actions.
Permittee will make such modifications without awaiting notice from the Services.
9.2 Service-initiated response to changed circumstances. If the Services
determine that changed circumstances have occurred and that Permittee has not responded in
accordance with Section 2 1.2 3 of the HCP, the Services will so notify Permittee and will direct
Permittee to make the requited changes. Within 30 days after receiving such notice, Permittee
will make the required changes and report to the Services on its actions. Such changes are
provided' for in the HCP, and hence do not constitute unforeseen circumstances or require
amendment of the permit or HCP.
9.3 Listing of species that are not covered species. In the event that a nun-covered
species that may be affected by covered activities becomes listed under the ESA.the Services will
work with Permittee to identify measures necessary to avoid take of,jeopardy to, or adverse
modification of the critical habitat of, the species as a result of covered activities. Permittee will
implement these measures until the permit is amended to include such species, or until the
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Services notify Permittee that such measures are no longer needed to avoid jeopardy to, take of;
or adverse modification of the critical habitat of,the non-covered species.
10.0 ADAP1I4'E MANAGEMENT
10.1 Permittee-initiated adaptive management. Permittee will implement the
adaptive management provisions in Chapter 5 of the HCP, when changes in management
practices are necessary to achieve the HCP's biological objectives, or to respond to monitoring
results or new scientific information. Permittee will make such changes without awaiting notice
from the Services,and will report to the Services on any actions taken pursuant to this section.
10.2 Service-initiated adaptive management. If the Services determine that one or
more of the adaptive management provisions in the HCP have been triggered and that Permittee
has not changed its management practices in accordance with Chapter 5 of the HCP,the Services
will so notify Pennittee and will direct Permittee to make the required changes Within 30 days
after receiving such notice, Permittee will make the required changes and report to the Services
on its actions. Such changes are provided for in the HCP,and hence do not constitute unforeseen
circumstances or require amendment of the permit or HCP,except as provided in this section.
10.3 Reductions in mitigation. Permittee will not implement adaptive management
changes that may result in less mitigation than provided for covered species under the original
terms of the HCP, unless the Services first provide written approval. Permittee may propose any
such adaptive management changes by notice to the Services, specifying the adaptive
management modifications proposed, the basis for them, including supporting data, and the
anticipated effects on covered species, and other environmental impacts. Within 120 days of
receiving such a notice, the Services will either approve the proposed adaptive management
changes,approve them as modified by the Services,or notify Permittee that the proposed changes
constitute permit amendments that must be reviewed under Section 12 2 of this agreement. d
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10.4 No increase in take. This section does not authorize any modifications that
would result in an increase in the amount and nature of take, or increase the impacts of take, of
covered species beyond that analyzed under the original HCP and any amendments thereto. Any
such modification must be reviewed as a permit amendment under Section 12.2 of this agreement.
11.0 LAND TRANSACTIONS
11.1 Acquisition of land by Permittee. Nothing in this agreement, the HCP, or the
permit limits Permittee's right to acquire additional lands. Any lands that may be acquired will
not be covered by the permit except upon amendment of the permit as provided in section 12.2 of
this agreement. ;
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11.2 Disposal of land by Permittee. Permittee's transfer of ownership or control of
covered land will require prior approval by the Services and an amendment of the permit in
accordance with section 12.2 of this agreement, except that transfers of covered lands may be
processed as minor modifications in accordance with section 12 1 of this agreement if:
(a) The land will be transferred to an agency of the federal government and,
prior to transfer,the Services have determined that transfer will not compromise the effectiveness
of the HCP based on adequate commitments by that agency regarding management of such land;
(b) The land will be transferred to a non-federal entity that has entered into an
agreement acceptable to the Services(e g., an easement held by the state fish and wildlife agency
with the Services as third-party beneficiaries) to ensure that the lands will be managed in such a
manner and for such duration so as not to compromise the effectiveness of the HCP,or
(c) The Services determine that the amount of Iand to be transferred will not
have a material impact on the ability of the Permittee to comply with the requirements of the HCP
and the terms and conditions of the Permit.
12.6 MODIFICATIONS AND AMENDMENTS
12.1 Minor modifications.
(a) Any party may propose minor modifications to the HCP or this
agreement by providing notice to all other parties. Such notice shall include a statement of the
reason for the proposed modification and an analysis of its environmental effects, including its
effects on operations under the HCP and on covered species. The parties will use best efforts to
respond to proposed modifications within 64 days of receipt of such notice. Proposed
modifications will become effective upon all other parties' written approval. If, for any reason, a
receiving party objects to a proposed modification, it must be processed as an amendment of the
permit in accordance with subsection 12.2 of this section. The Services will not propose or
approve minor modifications to the HCP or this agreement if the Services determine that such
modifications would result in operations under the HCP that are significantly different from those
analyzed in connection with the original HCP,adverse effects on the environment that are new or
significantly different from those analyzed in connection with the original HCP,or additional take
not analyzed in connection with the original HCP.
(b) Minor modifications to the HCP and IA processed pursuant to this
subsection may include but are not limited to the following:
(1) corrections of typographic, grammatical, and similar editing
errors that do not change the intended meaning;
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2 correction of any ma or exhibits to correct errors in mapping
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or to reflect previously approved changes in the permit or HCP;
(3) minor changes to survey,mon'.toring or reporting protocols; and
(4) Other types of modifications that are minor in relation to the
HCP,that the Services have analyzed and agreed to.
(c) Any other modifications to the HCP or IA will be processed as
amendments of the permit in accordance with subsection 12 2 of this section.
12.2 Amendment of the Permit. The permit may be amended in accordance with all
applicable legal requirements, including but not limited to the ESA, the National Environmental
Policy Act, and the Services' permit regulations. The party proposing .he amendment shall
provide a statement of the reasons for the amendment and an analysis of its environmental effects,
including its effects on operations under the HCP and on covered species.
13.0 REMEDIES,ENFORCEMENT,AND DISPUTE RESOLUTION
13.1 In general. Except as set forth below, each party shall have all remedies
otherwise available to enforce the terms of this agreement,the permit and the HCP.
13.2 No monetary damages. No party shall be liable in damages to any other party
or other person for any breach of this agreement, any performance or failure to perform a
mandatory or discretionary obligation imposed by this agreement or any other cause of action
arising from this agreement.
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13.3 Injunctive and temporary relief. The parties acknowledge that the covered
species are unique and that their loss as species would result in irreparable damage to the
environment, and that therefore injunctive and temporary relief may be appropriate to ensure
compliance with the tenns of this agreement.
13.4 Enforcement authority of the United States. Nothing contained in this
agreement is intended to limit the authority of the United States government to seek civil or
criminal penalties or otherwise fulfill its enforcement responsibilities under the ESA or other
applicable law.
13.5 Dispute resolution. The parties recognize that disputes concerning
implementation of, compliance with, or termination of this agreement, the HCP, and the permit
may arise from time to time The parties agree to work together in good faith to resolve such
disputes, using the informal dispute resolution procedures set forth in this section, or such other
procedures upon which the parties may later agree. However, if at any time any party determines
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that circumstances so warrant, it may any available remedy without waiting to complete
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informal dispute resolution.
13.5.1 Informal dispute resolution process. Unless the parties agree upon
another dispute resolution process. or unless an aggrieved party has initiated administrative
proceedings or suit in federal court as provided in this section, the parties may use the following
process to attempt to resolve disputes.
(a) The aggrieved party will notify the other parties of the provision that
may have been violated,the basis for contending that a violation has occurred,and the remedies it
proposes to correct the alleged violation.
(b) The party alleged to be in violation will have 30 days,or such other time
as may be agreed, to respond. During this time it may seek clarification of the information
provided in the initial notice The aggrieved party will use its best efforts to provide any
information then available to it that may be responsive to such inquiries.
(c) Within 30 days after such response was provided or was due,
representatives of the parties having authority to resolve the dispute will meet and negotiate in
good faith toward a solution satisfactory to all parties. or will establish a specific process and
timetable to seek such a solution.
(d) If any issues cannot be resolved through such negotiations, the parties
will consider non-binding mediation and other alternative dispute resolution processes and. if a
dispute resolution process is agreed upon, will make good faith efforts to resolve all remaining
issues through that process.
14.0 MISCELLANEOUS PROVISIONS
14.1 No partnership. Neither this agreement nor the HCP shall make or be deemed
to make any party to this agreement the agent for or the partner of any other party.
14.2 Notices. Any notice permitted or required by this agreement shall be in writing,
delivered personally to the persons listed below, or shall be deemed given five (5) days after
deposit in the United States mail, certified and postage prepaid, return receipt requested and
addressed as follows, or at such other address as any party may from time to time specify to the
other parties in writing. Notices may be delivered by facsimile or other electronic means,
provided that they are also delivered personally or by certified mail, Notices shall be transmitted
so that they are received within the specified deadlines
Assistant Regional Director
United States Fish and Wildlife Service
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911 N.E. I 1 th Ave.
Portland,Oregon 97232-4181
Telephone: 503-231-6159
Telefax: 503-231-2019
Regional Administrator
National Marine Fisheries Sen-ice
7600 Sand Point Way N.E.
Seattle, Washington 98115-0070
Telephone 206-526-6150
Telefax: 206-526-6426
Public Works Director
City of Kent
400 West Crowe Street
Kent,WA 98032
Telephone: 253-856-5500
Telefax: 253-856-6500
14.3 Entire agreement. This agreement, together with the HCP and the permit,
constitutes the entire agreement among the parties. It supersedes any and all other agreements,
either oral or in writing, among the parties with respect to the subject matter hereof and contains
all of the covenants and agreements among them with respect to said matters, and each party
acknowledges that no representation, inducement, promise or agreement, oral or otherwise, has
been made by any other party or anyone acting on behalf of any other party that is not embodied
herein.
14.4 Elected officials not to benefit. No member of or delegate to Congress shall be
entitled to any share or part of this agreement,or to any benefit that may arise from it.
14.5 Availability of funds. Implementation of this agreement and the HCP by the
Services is subject to the requirements of the Anti-Deficiency Act and the availability of
appropriated funds. Nothing in this agreement will be construed by the parties to require the
obligation, appropriation, or expenditure of any money from the U.S. Treasury. The parties
acknowledge that the Services will not be required under this agreement to expend any federal
agency's appropriated funds unless and until an authorized official of that agency affirmatively
acts to commit to such expend:tares as evidenced in writing.
14.6 Duplicate originals. This agreement may be executed in any number of
duplicate originals. A complete original of this agreement shall be maintained in the official
records of each of the parties hereto.
Page 041
14.7 No third-party beneficiaries. Without limiting the applicability of rights
granted to the public pursuant to the ESA or other federal law,this agreement shall not create any
right or interest in the public, or any member thereof, as a third-party beneficiary hereof,nor shall
it authorize anyone not a party to tlus agreement to maintain a suit for personal injuries or
damages pursuant to the provisions of this agreement. The duties. obligations, and
responsibilities of the parties to this agreement with respect to third parties shall remain as
imposed under existing law
14.8 Relationship to the ESA and other authorities. The terms of this agreement
shall be governed by and construed in accordance with the ESA and applicable federal law. In
particular, nothing in this agreement is intended to limit the authority of the Serviees to seek
penalties or otherwise fulfill their responsibilities under the ESA. Moreover, nothing in this
agreement is intended to limit or diminish the legal obligations and responsibilities of the
Services as agencies of the federal government. Nothing in this agreement will limit the right or
obligation of any federal agency to engage in consultation required under Section 7 of the ESA or
other federal law, however, it is intended that the rights and obligations of Permittee under the
HCP and this agreement will be considered in any consultation affecting Permittee's use of the
covered lands.
14.9 References to regulations. Any reference in this agreement, the HCP, or the
permit to any regulation or rule of the Sen ices shall be deemed to be a reference to such
regulation or rule in existence at the time an action is taken.
14.10 Applicable laws. All activities undertaken pursuant to this agreement,the HCP,
or the permit must be in compliance with all applicable state and federal laws and regulations.
14.11 Successors and assigns. This agreement and each of its covenants and
conditions shall be binding on and shall inure to the benefit of the parties and their respective
successors and assigns. Assignment or other transfer of the permit shall be governed by the
Services'regulations.
i
i
Page 0-12
r
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Implementing
Agreement to be in effect as of the date that the Services issue the permit.
BY ' 2A6e'--�_ Date ( &I`�
Regional Director
Aetha*J tted States Fish and Wildlife Service
Portland, Oregon �/ �/
BY WzIn�.��� �< b� l h�l Date&
Regional Administrator
National Marine Fisheries Service
Seattle, Washington
BY l/G Date
T
C' Kent,Washington
a
i
a
s
Page 0-13
Y, . .
ENT F
c Po-�t^ ryF'iA m� MIL
A United States Department of the Interior
FISH AND WILDLIFE SERVICE
911 NE Wh Avenue
,a9 Portland,Oregon 972324181 ®*�
In Reply Refer To
F W S/R I/AES/TE04197A-0
September 26, 2011
Suzette Cooke RECEIVED
Mayor, City of Kent
400 West Gowe Street
Kent,Washington 98032 SEP 2 7 2011
City of Kent
Dear Ms. Cooke: Office of the Mayor
Enclosed is a copy of your Endangered Species Act section 10(a)(1)(B)Incidental Take Permit and the
Implementing Agreement for the City of Kent Clark Springs Water Supply System Habitat
Conservation Plan(HCP). The permit authorizes take of the threatened bull trout(Salvelrnus
confluentus)and three currently unlisted species,the coastal cutthroat trout(Oncorhynchus clarki
clarkt),Pacific lamprey(Lampetra tridentata),and the river lamprey(L ayresz), should they become
listed during the permit term. The permit authorizes take of the above species caused by covered
activities that are implemented in accordance with your HCP.
Thank you for helping to conserve listed species. If you have an questions regarding this permit
Y P g P Y any g g p
please contact the Ken Berg, Project Leader of our Washington Fish and Wildlife Office at(360) 753-
9440.
Sincerely,
Richard Hannan
j
Deputy Regional Director i
Enclosures
x
3-201
DEPARTMENT OF THE INTERIOR (17/97)
/97
sxe U S FISH AND WILDLIFE SERVICE
SERVKE 2 AUTHORITY-STATUTES
16 USC 1539(a)
FEDERAL FISH AND WILDLIFE PERMIT 16 USC 703-712
REGULATIONS
50 CFR 17 22
1 PERMITTEE 50 CFR 2123
CITY OF KENT 50 CFR 2127
400 WEST GOWE STREET 50 CFR 13
KENT,WA 98032
USA 3 NUMBER
TE041197A-0
4 RENEWABLE 5 MAY COPY
® YES YES
NO NO
6 EFFECTIVE 7 EXPIRES
9-26-2011 9-25-2061
8 NAME AND TITLE OF PRINCIPAL OFFICER (##1!s a bvw)ns) 9 TYPE OF PERMIT
SUZETTE COOKE NATIVE ENDANGERED SP HABITAT CONSERVATION PLAN-E
MAYOR WILDLIFE
10 LOCATION WHERE AUTHORIZED ACTIVITY MAY BE CONDUCTED
The Clark Springs Facility Including Rock Creek(tributary to the Cedar River)and area comprising the 320-acre Rock Creek Watershed,
King County,Washington
11 CONDITIONS AND AUTHORIZATIONS
A GENERAL CONDITIONS SET OUT IN SUBPART D OF 50 CFR 13, AND SPECIFIC CONDmONS CONTAINED IN FEDERAL REGULATIONS CITED IN BLOCK#2 ABOVE, ARE HEREBY
MADE A PART OF THIS PERMIT ALL ACTIVITIES AUTHORIZED HEREIN MUST BE CARRIED OUT IN ACCORD WITH AND FOR THE PURPOSES DESCRIBED IN THE APPLICATION
SUBMITTED CONTINUED VALIDITY,OR RENEWAL,OF THIS PERMIT IS SUBJECT TO COMPLETE AND TIMELY COMPLIANCE WITH ALL APPLICABLE CONDITIONS,INCLUDING THE
FILING OF ALL REQUIRED INFORMATION AND REPORTS
B THE VALIDITY OF THIS PERMIT IS ALSO CONDITIONED UPON STRICT OBSERVANCE OF ALL APPLICABLE FOREIGN,STATE,LOCAL OR OTHER FEDERAL LAW
C VALID FOR USE BY PERMITTEE NAMED ABOVE
D Further conditions of authorization are contained in the attached Special Terms and Conditions
® ADDITIONAL CONDITIONS AND AUTHORIZATIONS ALSO APPLY
2 REPORTING REQUIREMENTS
L
ISSUED BY TITLE DATE
Richard Hannan DEPUTY REGIONAL DIRECTOR-PACIFIC REGION 5410001
. 000 Z1\
or
t
U.S. Fish and Wildlife Service, Portland Oregon
Special Terms and Conditions for Permit TE04197A-0
E. All Sections of Title 50 Code of Federal Regulations, parts 13 and 17.32, are conditions
of this permit.
F. The authorization granted by this permit is subject to compliance with, and
implementation of the City of Kent Clark Springs Water Supply Habitat Conservation
Plan (HCP), executed by the Permittee and the U.S. Fish and Wildlife Service (Service).
This permit and the HCP are binding upon the Permittee, and any authorized officer,
employee, contractor, or agent conducting permitted activities.
G. The Permittee, and its authorizing officers, employees, contractors, and agents are
authorized under the Endangered Species Act of 1973, as amended (Act), to incidentally
take the federally threatened bull trout (Salvelinus confluentus) and unlisted coastal
cutthroat trout(Oncorhynchus clarki clarki), Pacific lamprey (Lampetra tridentata), and
river lamprey(L ayresi) to the extent that take of this species would otherwise be
prohibited under section 9 of the Act, and its implementing regulations, or pursuant to a
rule promulgated under section 4 (d) of the Act. Take must occur incidental to otherwise
lawful activities associated with the activities and management of the covered lands and
waters as described in the HCP, and as conditioned herein.
H. Upon locating any dead, injured, or sick individual bull trout the Permittee shall, within 3
working days, notify the Fish and Wildlife Service's Washington Fish and Wildlife
Office (360-753-9440). The notification shall include the date, time, and location of the
specimen, a photograph, cause of death, if known, and any other pertinent information.
Care should be taken in handling the dead specimens to preserve biological material in
the best possible state for later analysis. !
I. Conduct monitoring and reporting as described in section 5.0 of the HCP and submit
reports to the Project Leader, U.S. Fish and Wildlife Service, Washington Fish and
Wildlife Office, 510 Desmond Drive SE, Lacey, WA 98503; and to the Assistant
Regional Director—Ecological Services, Division of Endangered Species, U.S. Fish and
Wildlife Service, 911 NE 11"' Avenue, Portland, Oregon 97232.
J. The Permittee shall refer to permit number TE04197A-0 in all correspondence and
reports concerning permit activities. Any questions you may have about this permit
should be directed to the Project Leader, U.S. Fish and Wildlife Service, Washington Fish
and Wildlife Office, 510 Desmond Drive SE, Lacey, WA 98503, telephone
360-753-9440.
K. A copy of this permit must be in possession of the permittee and designated agents while
conducting covered activities.
p UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
NATIONAL MARINE FISHERIES SERVICE
Northwest Region
7600 Sand Point Way NE, Bldg 1
Seattle, WA 95115
September 6, 2011
Tim LaPorte Kumca
Director of Public Works
City of Kent Public Works Engineering Sty
400 West Gowe Street ,If of: KENT
Kent, Washington 98032 FNGINEER1NG DEFT
Dear Mr. LaPorte:
Enclosed is Permit 16247 issued to the City of Kent (City), under the authority of Section
10(a)(1)(13) of the Endangered Species Act(ESA) Permit 16247 authorizes incidental take of
several fish, listed under the ESA, by the City operating its Clark Springs Water Supply System.
The National Marine Fisheries Service(NMFS) has determined that if the City conducts
management activities as described in the Clark Springs Water Supply System Habitat
Conservation Plan (Plan), and in compliance with the terms and conditions of the Plan and the
Permit, the expected take will be appropriately minimized and mitigated for, and will not
appreciably reduce the likelihood of survival or recovery of the ESA-listed species covered in the
Plan
The authorization granted by this Permit is subject to full and complete compliance with, and
implementation of, the Plan. The term of this Permit is for the duration of the Plan and expires
September 6, 2061
As per the terms of the unlisted species provisions of the Plan, Section 2 1.2.4, should any
additional Plan-covered species that are now unlisted under ESA become ESA-listed, the new
species will be added to this Permit according to provisions in the attached Permit
If you do not comply with the terms and conditions of the Permit, or if you cannot provide
adequate funding for the Plan, the incidental take of covered species is not authorized If you
have any questions concerning the Permit,please contact the Washington State Director for
Habitat Conservation, Steve Landino, at (360) 753-9530
S ncerely,
i 96/
William W Stelle Jr
v
Regional Administrator
�O NMOy}�
�C
O rg
g
® Panted on Recycled Paper
NOAA's NATIONAL MARINE FISHERIES SERVICE
PERMIT FOR INCIDENTAL TAKE OF ENDANGERED/THREATENED SPECIES
Permit Number 16247
Expiration Date-- September 6, 2061.
Permit Holder:
City of Kent
400 West Gowe Street
Kent, Washington 98032
Principal Officer and Contact-
Tim LaPorte
Director of Public Works
City of Kent
Public Works Engineering
400 West Gowe Street
Kent, Washington 98032
Phone. (253) 856-5547
Reporting Requirements:
Reports described in Section 5 of the City of Kent's (City) Clark Springs Water Supply System
Habitat Conservation Plan (HCP) shall be submitted to the National Marine Fisheries Service,
Washington State Habitat Office, 510 Desmond Drive SE, Suite 103, Lacey, Washington 98503.
Authorization:
The City of Kent (the Permittee) and all persons conducting "covered activities" on "covered
lands", as those terms are defined in sections 1.6 and 1.5 of the HCP, are hereby authorized
incidental take of 2 listed threatened and endangered species under NMFS' jurisdiction (see
attached Table 1), associated with operation of the Clark Springs Water Supply System on Rock
Creek, subject to the provisions of the implementing agreement(IA) and Section 10 of the
Endangered Species Act of 1973 (ESA) (16 U S C §§ 1531-1543), NOAA's National Marine a
Fisheries Service (NMFS) regulations governing ESA-listed species permits (50 C F R Parts
222 301-222 307), and the conditions hereinafter set forth Take authorization will become
effective for covered unlisted species concurrent with the listing of these species under the Act
and, for threatened species, the issuance of a rule prohibiting their take
2
Abstract-
Detailed descriptions of the activities covered by the permit are provided on pages 1-19 to 1-23
of the HCP Conservation measures are described on pages 4-1 to 4-47 The action p
encompasses the operation of the Clark Springs Water Supply System on Rock Creek as
administered by the City of Kent.
Incidental Take:
Covered activities (Chapter 1 6) that may cause incidental take of listed species will be
conducted throughout the covered lands defined by the HCP (Chapter 1 5) The covered lands
include (1) the 320 acres of land owned by the City and collectively called the Clark Springs
Facility, (2) Rock Creek, Sixth Field Hydrologic Unit Code (HUC) 171100120106, from the
upstream end of the City's Clark Springs Watershed property, downstream to the mouth of the
creek (latitude 47°22'54" N and longitude 122°1'00" W). and (3) areas along Rock Creek where
mitigation monitoring, and restoration activities described in Chapter 4 of the HCP would occur.
The NMFS did not have sufficient information to determine the number of fish that will be
harmed so we quantified the extent of take based on the extent of habitat modified (51 FR 19926
at 19954; June 3, 1986) This method is based on the general relationship between habitat
function and the extent to which normal behaviors can be expressed In this case, weighted
usable area(WUA, an index of the amount of suitable habitat) will serve as a reliable measure of
the extent of take The difference between the optimal WUA and the median baseline WUA for
the Chinook salmon and steelhead life stages by month, as given in Table 2 of NMFS' biological
opinion, will be the extent of incidental take anticipated and exempted in this incidental take
statement.
General Conditions.
1) All sections of Title 50 Code of Federal Regulations, part 222, NMFS regulations governing
ESA-listed species permits (50 C F R Parts 222 301-222.307). are conditions of this permit
If any such regulations are modified. any future action taken with respect to this permit shall
be in accordance with such regulations in existence at the time such action is taken except as
specifically otherwise provided for by law.
2) The authorization granted by this permit is subject to full and complete compliance with, and
implementation of,the City's HCP, which is hereby incorporated into this permit The
permit and HCP are binding upon the permittee and all persons conducting "covered
activities" on"covered lands" as those terms are defined in sections 1.6 and 1.5 of the HCP.
3) The HCP is described in general in Chapter 1 of the document titled "City of Kent Clark
Springs Water Supply System Conservation Plan" and is approved as constituted on the date
3
of permit issuance Any modifications and amendments to the HCP shall be done according
to the Implementing Agreement sections 12 1 and 12 2.
4) A copy of this permit, including the accompanying HCP, must be available to City personnel.
All applicable provisions of this permit must be presented and clearly explained to all
authorized City employees involved in the HCP implementation Permittee shall ensure that
all persons carrying out activities covered by the permit are made aware of its applicable
requirements.
5) The Permittee shall refer to permit number 16247 in all correspondence and reports
concerning permit activities Any questions about this permit should be directed to the State
Director, National Marine Fisheries Service, 510 Desmond Drive SE, Suite 103, Lacey,
Washington 98503, telephone (360) 753-9530
6) Reports described in Section 5 of the HCP shall be submitted to the State Director,National
Marine Fisheries Service, 510 Desmond Drive SE, Suite 103, Lacey, Washington 98503,
telephone (360) 753-9530.
7) This permit does not authorize the Permittee or any other person to take ESA-listed species
in the territorial waters of another country without the consent of that country The Permittee
is responsible for securing consent from that country and complying with that country's
appropriate laws.
8) The Permittee, in effecting the take authorized by this permit, is considered to have accepted
the terms and conditions of this permit and to be prepared to comply with the provisions of
this permit, the applicable regulations, and the ESA.
9) This permit does not relieve the Permittee from compliance with applicable foreign, state,
local or other federal law.
10)Upon request by NMFS, the Permittee will use its best efforts to allow NMFS, or any other
person(s) duly designated by NMFS, to inspect Covered Lands on which Covered Activities
have occurred or are expected to occur if such activities pertain to (i) activities for which take
of listed species is authorized by this permit, (ii) ESA-listed species covered by this permit,
or (in)NMFS' responsibilities under the ESA.
11) For unlisted covered species, the permit will take effect upon the listing of a species as
endangered, and for a species listed as threatened, on the effective date of a rule under
Section 4(d) of the ESA prohibiting take of the species.
12) Upon locating any dead, injured, or sick individuals of any listed species covered by this
permit the Permittee shall, within three working days, notify NMFS' Washington State
Habitat Office, Lacey, Washington ((360) 753-9530) Instructions for proper handling and
4
disposition of such specimens will be issued at that time. Care must be taken in handling
sick or injured specimens to ensure effective treatment and care and in the handling of dead
specimens to preserve biological material in the best possible state This condition does not
apply to spawned-out carcasses.
13)The fee in 50 C.F.R. § 222.307(d)(5) to cover the cost of issuance of this permit has been
waived
))JAAWj$1
Issued by Date: tv
William W Stelle, Jr
Regional Administrator
1
5
Table 1. Covered Species under NMFS Jurisdiction (by listing status).
Common Name Scientific Name
Threatened Species
Puget Sound Chinook salmon Oncorhynchus tshawytscha
Puget Sound steelhead Oncorhynchus mykiss
Unlisted Species
Puget Sound/Strait of Georgia chum Oncorhynchus keta
salmon
Puget Sound/Strait of Georgia coho Oncorhynchus kisutch
salmon
Sockeye salmon Oncorhynchus nerka
:
REQUEST FOR MAYOR'S SIGNATURE
ENT Please Fill in All Applicable Boxes
K ,.�. .
Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT)
Originator: Kelly Peterson Phone (Originator): 5547
Date Sent: 08/03/2011 Date Required. 08/05/2011
Return Signed Document to: Kelly CONTRACT TERMINATION DATE: 2061
Peterson
VENDOR NAME: U.S. Fish & Wildlife DATE OF COUNCIL APPROVAL: 08/W2011
Service and National Marine Fisheries
Service
Brief Explanation of Document:
Clark Springs Water Supply System/Habitat Conservation Plan (HCP) Implementing Agreement with the
United States Fish and Wildlife Service and National Marine Fisheries Service.
An HCP is an agreement between a landowner or utility and the federal government to allow incidental
taking of threatened or endangered species identified on the federal Endangered Species Act list,
provided the taking will be adequately minimized and mitigated to the maximum extent practicable.
The HCP will provide Kent with 50-years of certainty and protection from lawsuits under the auspices of
the federal Endangered Species Act. The city will be required to complete specific habitat conservation
measures (projects) at a cost of approximately $2.5-million over the next 10 years. In addition, specific
monitoring by the city will be required during the life of the HCP.
All Contracts Must Be Routed Through The Law Department
RECEIVEDo be completed by the Law Department)
Received: 1
AUG 4 3 2011 {/ � (Z��'
Approval of Law Dept.: /I 1.
lk�
Law Dept. CommerKENT LAW DEPT. IV
Date Forwarded to Mayor:
Shaded Areas To Be Completed By Administ ati fE u �7-------------
LJ
Received:
LAUG - 4 2011
Recommendations and Comments: CITY OF K-NT
GiT9 CLERK
Disposition:
Date Returned:
V
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