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Contract Number 4137
KIT SAP CO/MASON CO/PIERCE CO/CITIES/TRIBES
Watershed Planning - Kitsap WRIA 15
Water Resources
GOV File Class LEG 12-1
$
12/20/2000
12/31/2005
02/15/2007
GL $
AL $
E&O $
Insurance Total $
Insurance Review Date
Process stopped w/Tribal veto in 2005
Vault 01/01/2007
MEMORANDUM OF UNDERSTANDING ~'~(O)~
WATERSHED PLANNING
KITSAP WRIA 15
November, 2000
WHEREAS, the Washington Watershed Management Act, RCW 90.82, provides a process to plan and
manage the uses of water within the K~tsap Water Resource Inventory Area (WRIA 15); and
WHEREAS, the water resource planning process described in Chapter 90.82 and this Agreement is not
intended to formally determine or resolve any legal dispute about water rights under state or federal law
or Indian Treaty. Rather, this process is an alternative, designed to cooperatively plan and manage the
uses of' Washington's water resources; and
WHEREAS, the irfitiating governments as defined under RCW 90.82.060 are Kitsap, Mason, and Pierce
counties, the City of Bremerton, the Silverdale Water District, and the Port Gamble S'Klallam and
Suquamish Tribes; and
WHEREAS, the initiating governments as defined by RCW 90.82.060(5) have initiated the watershed
planning process in accordance with RCW 90.82.060(2) and have determined that the general scope of
planning should include an instream flow component in accordance with RCW 90.82.080, a water quality
component in accordance with RCW 90.82.090, and a habitat component in accordance with RCW
90.82.100; and
WHEREAS, the initiating governments recognize that effective watershed planning cannot take place
without a broad participation of governmental entities with a water interest within WRIA 15, and
therefore seek the full participation of additional local and tribal governments in organizing and
conducting this watershed planning process; and
WHEREAS, these expanded initiating governments have been included consistent with RCW 90.82.060,
which directs that 'the initiating governments shall work with state government, other local governments
within the management area, and affected tribal governments in developing a plann/ng process'.
NOW, THEREFORE, the initiating governments and expanded initiating governments for WRIA 15
agree as follows:
Preamble: The purpose of this agreement is for the Expanded Initiating Governments, as defined below,
to come to a mutual understanding and agreement regarding their role and responsibility in watershed
planning under the Washington State Watershed Management Act 0RCW 90.82). This agreement covers
the roles and responsibilities of the lead agency, the Expanded Initiating Governments and the Planning
Unit. Further, this agreement establishes the general scope of planning for the Kitsap WRIA and
establishes a general planning process under which the Planning Unit will operate.
1.0 Expanded Initiating Governments
1.1 The parties to this Agreement shall be an expanded group of initiating governments,
specifically the counties of Kitsap, Mason, Pierce, and King; the cities of Bainbridge Island, Bremerton,
Gig Harbor, Port Orchard, and Poulsbo; the Indian tribes of Port Gamble S'Klallam, Skokomish, Squaxin
Island, and Suquamish; and the water purveyors of Annapolis, North Perry, and Silverdale water districts
as well as Public Utility District #1 of Kitsap County. The Expanded Initiating Governments will be set
at 16 members. As of this agreement, the Expanded Initiating Governments are considered to be
equivalent to the Initiating Governments.
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1.2 The Expanded Initiating Governments agree to form and maintain a balanced Planning Unit
that represents a wide range of water resource interests in WRIA 15. It shall be the individual
responsibility of each Expanded Initiating Government to appoint a representative to the Planning Unit.
Such a representative will be authorized to make consensus decisions on bebalfofthe Expanded Initiating
Government, though ultimate decision-making is the responsibility of the policy makers. All
representatives sball make best attempts to coordinate, as needed, with elected officials and other affected
departments in order to ensure to the extent possible that decisions made during the development of the
watershed plan represent all interests of the Expanded Initiating Government.
I. 3 The Expanded Initiating Governments establish and guide the planning process by providing
the Planning Unit with ground rules to be used throughout the planning process. The ground rules may be
modified by the Planning Unit.
2.0 Scope: The intended scope of the watershed plan is comprehensive, to include water quantity,
water quality, instream flows, and habitat. Existing data, studies and plans will be fully utilized in this
comprehensive watershed planning process.
The geographic scope of the watershed plan shall be Kitsap WRIA 15. Sub-area investigations and plans
may be developed by the Planning Unit, provided that these sub-area plans are ultimately integrated into a
unified and consistent overall watershed plan. It is understood, however, that there are not enough
resources to fully study all areas of the WRIA, therefore, it is anticipated that the sub-basins within the
WRIA will be prioritized and remaining data gaps will be identified. Studies and data that are available
may be used as a general guide, where appropriate, for areas that are not investigated.
3.0 Lead Agency: Kitsap County will be the lead agency for the purposes of convening the
Expanded Initiating Governments, administration of Watershed Planning Grant funds, facilitating
meetings of the Planning Unit, and providing and/or contracting services. Project budgets and overall
approach, including utilization of consultants, shall be agreed upon by the Expanded Initiating
Governments by consensus, before the Planning Unit is formed, and by the Planning Unit atter it is
formed and operating, as defined within its ground rules. The Lead Agency shall not obligate any parties
to financial responsibility in performing its tasks under this Agreement without approval of the respective
governmental entities. The Lead Agency will also prepare and maintain proper records for accounting
and administration of watershed planning grants.
4.0 Planning Unit
4.1 The Planning Unit is the committee formed by the Expanded Initiating Governments to
de,me a detailed work plan and scope o£work, determine a budget, establish a schedule, hire consultants
and/or staff, and to direct all aspects of the Watershed Management Plan. Ultimately the Planning Unit
will be responsible £or approving the Watershed Management Plan and forwarding the Plan on to the
three Counties for public hearings and adoption.
4.2 Members of the Planning Unit formed by the Expanded Initiating Governments shall agree to
cooperate with the plaun~g process identified in this Agreement.
4.3 The Planning Unit shall be the policy recommendation committee for the watershed plan as
envisioned in RCW 90.82.060. Non-governmental representation in the Planning Unit is encouraged to
provide representation of a wide range of water resource interests.
4.4 The Planning Unit may define its mission further and establish additional groundrules for
operation consistent with this agreement, including establishing various sub-committees. The Planning
Unit shall establish procedures for consensus, voting, recording decisions, and dispute resolution. Sub-
committees can also establish their own groundrules for operation consistent with this agreement,
provided that such groundrules are approved by the Planning Unit.
4.5 The Plarming Unit will consist originally of the following groups and representatives:
Counties: a representative from Kitsap, Mason, Pierce, and King counties, appointed by the respective
county;
Cities: a representative from Bainbridge Island, Bremerton, Gig Harbor, Port Orchard, and Poulsbo,
appointed by the respective city;
Tribes: a representative fi'om Port Gamble S'Klallam, Skokomish, Squaxin Island, and Suquamish Tribes,
appointed by the respective tribe/tribal group;
Water Purveyors: a representative bom Silverdale, Annapolis, and Noah Perry Water Districts, and
Public Utility District #1 of Kitsap County, each appointed by the respective Board of Commissioners or
water purveyor;
State: The State of Washington shall participate in the Partnership in caucus form through the
Department of Ecology (DOE), who shall represent all pertinent State agencies, including the
Departments of Health, Natural Resources, Fish & Wildlife, Community Trade & Economic
Development, and the Puget Sound Action Team. These other agencies are invited and encouraged-to
actively participate in this planning effort;
Other Caacnsea (tentative list)
The following major interest caucuses will each have one seat on the Planning Unit:
· At Large
· Business
· Environmental
· Fisheries (including sport and shellfish)
· Non-voting Federal Ageneies
· Recrentional
· Timber/Agriculture
· Water Purveyors
4.6 The Planning Unit can agree to add a caucus or representative through the consensus process.
5.0 Decision process
5.1 Each duly appointed represemative of a unit of local government or tribe will have one vote.
State and non-governmental organizations will each have one vote as a eauens, except the water
purveyors not listed above who will form one caucus with two representatives. Representatives of federal
agencies shall not be entitled to a vote.
5.2 The Planning Unit will strive to make decisions by consensus of all members of the Planning
Unit. For the purposes of this process, consensus shall mean concurrence, with no one member of the
Planning Unit refusing to support the implementation of the decision~ If the full Planning Unit is unable
to reach a consensus decision on an issue, an af~'u'mative decision shall be made by the consensus of
governmental participants on the Planning Unit and a majority vote of all non-governmental participants
present. This method of approval will be called "voting consensus."
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5.3 Where applicable, decisions should be based upon best available science. Best available
science is defined by the scientific community and agreed upon by the Planning Unit.
5.4 Sub-area investigations and plans may be developed by the Planning Unit. Any sub-area plan
must be compatible with the overall watershed plan and policy recommendations.
5.5 Nothing contained herein or developed during the planning process shall prejudice the legal
claims of any participants.
5.6 Government participants may and are encouraged to provide specific written approval of all
watershed plan elements that create an obligation on the government entity. Obligation means any
required action that imposes a fiscal impact, a redeployment of resources or a change of existing policy.
It is expected that all governmental entities will provide written approval of the final Watershed Plan.
5.7 Substantive decisions will be made by the Planning Unit at least one week after the issue is
brought to the Unit for a decision, to allow time to communicate within caucuses. Ifa caucus does not
support a proposed action, it is encouraged to state why, in writing, for the record.
6.0 Fnnding:
6.1 This agreement does not obligate the Expanded Initiating Governments to pay any costs for
WRIA 15 watershed plarming. Any such obligation in the future shall require express written agreemem
by those obligated.
6.2 Kitsap County shall be the lead agency for the management of grant funds and the application
for additional funds. Annual budgets and allocations of watershed planning grant funds shall be approved
by the Planning Unit. Grant funds may be used for staff support, technical staff and/or consulting
services, and may include preparation of technical reports for review by the Planning Unit and
committee(s).
6.3 Participation in watershed planning committees by officials and staffshall be regarded as
contributed time and not eligible for grant reimbursement, unless expressly approved by the Planning
Unit.
7.0 General Watershed Management Planning Act Conditions
7.1 Watershed Plan (the Plan) provisions cannot conflict with existing statues or tribal treaty
rights.
7.2 Existing water fights (claims, permits, and certificates) cannot be impaired or diminished.
7.3 The Plan cannot require modifications in the operations ora federal reclamation project with
water fights pre-dating the law, and cannot alter the quantity of water available to such a project.
7.4 The Plan cannot affect or interfere with an ongoing general adjudication of water rights.
7.5 The Plan cannot modify or require the modification of a waste discharge permit.
7.6 The Plan cannot modify or require modification of wild salmonid recovery activities
developed under the Salmon Recovery Act (but may contain recommendations for changes).
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13.0 Authorization to Sign: The parties hereto each represent and warrant that all necessary
signatures and consents to enter this agreement and to assume and perform the obligations hereunder have
been duly and properly obtained.
This Memorandum of Agreement has been executed this day of , on one
or more originals, by the parties below.
Kitsap County Mason County
Pierce County Executive City of Bainbridge Island
City of Bremerton City of Gig Harbor
City of Port Orchard City of Poulsbo
Annapolis Water District Kitsap PUD #1
North Perry Waler District Silverdale Water District
Port Gamble Sqrdallam Indian Tribe Skokomish Indian Tribe
Squaxin Island Indian Tribe Suquamish Indian Tribe
Attachment to Memorandum of Understanding
Kitsap WP, IA 15 Watershed Planning
Squaxin Island and Skokomish Tribes
Statement of Conditions for Participating in Watershed Planning
as part of the Watershed Management Planning Act
8.1 The water resource planning process described in this agreement is not intended to formally
determine or resolve any legal dispute about water fights under state or federal law or Indian Treaty.
Rather, this process is an alternative, voluntarily developed, designed to cooperatively plan and manage
the uses of Washington's water resource.
8.2 The Tribes will not define or identify a specific quantity of water that constitutes the Tribes'
treaty or lega1 water rights. The Tribes reserve their treaty right to any and all waters required to produce
a harvestable number of fish sufficient to meet ceremonial, subsistence, and commercial needs in order to
carry out its treaty fishing right reserved under the Treaty of Medicine Creek. Further, the Tribes reserve
their judicial, statutory, and equitable rights to any and all waters to meet the changing needs of its tribal
members in fulfilling the purposes of the Reservation.
8.3 The Tribes will not agree to any plan elements that seek to define, alter, or otherwise affect
the Tribes' treaty or legal water rights.
8.4 There will be no planning involving on-reservation water rights.
8.5 Effective watershed planning cannot take place without the full participation, as an Initiating
Government, of all Tribes with a legal interest or history offish habitat management activities in the
affected watershed. To achieve this, the Initiating Government will invite such Tribes to participate as
Initiating Governments in determining the scope of planning, composition of the Planning Unit, and all
other authorities of such governments.
8.6 The Tribes will not agree to re-negotiation ofinstream or base flows that have been set by
role or agreement in the watershed, except to the degree that modifications are necessary to meet the
requirements of the fish resource and the reserved rights of the Tribe. Further, the Tribes 'will not agree to
re-negotiation of closures to further appropriation by Department of Ecology rule or determination in any
stream reaches in the watershed.
8.7 Assessment ofinstream flow, for purposes of the state or Tribes, will be conducted jointly by
the Department of Ecology with the affected Tribes, and in cooperation with the Department offish and
Wildlife.
8.8 Tribal claims to instream flows include at a minimum: minimum flows necessary to provide
optimum habitat conditions for salmon. This includes those waters of sufficient quantity and quality to
meet the needs of all the Tribes' fisheries and to fully support the five elements ofanadromous fish
habitats set out in the Joint Biological Statement in United States v. Washington: 1) access to and fi.om the sea;
2) an adequate supply of good quality water;
3) a sufficient amount of suitable gravel for spawning and egg incubation;
4) an ample supply of food; and
5) sufficient shelter.
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8.9 All discussions must usc best available scientific data and methodologies and such science
must be commonly accepted by the scientific community and agreed upon by the affected Tribes.
Utilization of consultants must also be agreed upon between the affected Tribes and the appropriate state
agencies.
8.10 The parties recognize that final agreemem is more likely if the parties can fi'eely discuss
alternatives and hypotheticals without prejudice to positions they may take in legal proceedings.
Therefore, no discussion, plan, proposal, agreement, offer of compromise, proposed agreemem,
concession, statement, data, material or document, whether oral, written or in electronic or other format,
made by or on behalf of the affected Tribe in furtherance of the planning process envisioned by this
agreement shall be admissible in any legal or administrative proceeding, regardless of whether the Tribe is
a party to that proceeding.
8.11 The Tribes reserve any and all rights and defenses that they may have with respect to their
treaty reserved, judicial, statmory, or equitable water fights pertaining to any other participant in the
process, including any such participants' claim to or allocation of water in the watershed.
8.12 No negotiations seeking to define, alter, diminish, or otherwise affect the treaty reserved or
legal water rights oftbe Tribes may be adopted without the express approval of the Tribal Government
and its General Membership.
8.13 The parties agree the consensus decision-making process defined under this agreemem will
remain in force not withstanding any future legislation.
8.14 There shall be no consensus under Section 9(1)(a) of ESHB 2514 without the express
agreement from the Tribes in writing.
8.15 The Tribes shall have the right to withdraw from the planning process at any time. All
parties agree that, if the Tribes withdraws, it shall not be considered a party to any plan or agreement
produced pursuant to ESHB 2514 and shall not be bound thereby.
8.16 No amendment or alteration of this agreement shall arise by implication, course of conduct,
or change of state law. This agreement may be altered only by a subsequent written document, signed by
the parties, expressly stating the parties' intention to amend the agreement.
8.17 Nothing herein shall be a waiver of Tribal sovereign immunity for any litigation including
but not limited to any general stream adjudication.
8.18 The parties recognize that ESI-IB 2514 provides that the planning process shall not contain
provisions which conflict with Tribal treaty rights or which imposc an obligation on any participating
Tribal government. They therefore agree that Tribal participation in this process shall not constitute an
admission or agreement by the participating Tribes that any estimates of Tribal treaty rights are binding
on it, unless the affected Tribe expressly so agrees in writing at the conclusion of the process, and such
Tribal agreement is approved in writing by the United States.
8.19 This statement must be made part of the Watershed Plan proposed by the Planning Unit or
approved by the County pursuant to Sections 3 and 9 of the Act.
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7.7 The Plan cannot modify or require modification of habitat enhancement activities that are a)
part of an approved habitat conservation plan, incidental take permit, incidental take statement; or other
cooperative or conservation agreement involving a State or federal agency; or b) part ora water quality
program adopted by an irrigation district under chapter 87.03 RCW or a board of joint control under
chapter 87.80 RCW.
7.8 The Plan cannot change existing local ordinances or existing state rules or permits (but may
contain recommendations for changes).
7.9 The Plan must take into account forest practices rules under RCW 76.09 and cannot create
obligations or restrictions on forest practices additional to or inconsistent with the forest practices act and
its implementing rules.
7.10 Nothing contained herein or developed during the planning process shall prejudice the legal
claims of any participants.
8.0 Tribal Conditions for Participation
The attached Squaxin Island and Skokomish Tribes Statement of Conditions for participating in
watershed planning under ESHB 2514 are acknowledged by all the parties of this agreement. These
conditions outline those Tribes' conditions for joining this planning effort, but they are not binding on the
other parties to this agreement or the Planning Unit. To be clear, the Port Gamble S'Klallam and
Suquamish Tribes are not part of these Statement of Conditions.
9.0 Duration: This agreement will be in effect for the duration of the watershed planning period,
which shall last no longer than four years from the effective date of receipt of Phase 2 funding unless
extended by agreement of the Expanded Initiating Governments.
10.0 Modifications:
I 0.1 This agreement may be modified or amended only by a subsequent written document,
signed by all the Expanded Initiating Governments, expressly stating the parties' intention to amend the
agreement. No amendment or alteration of this agreement shall arise by implication, course of conduct or
change of state law until expressly addressed by the Planning Unit.
10.2 Notwithstanding the above, any governmental entity shall have the right to withdraw from
the planning process at any time. All parties agree that if an entity withdraws, it shall not be deemed to be
a party to any plan or agreement produced pursuant to RCW 90.82 and shall not be bound thereby.
11.0 Agreement: The water resource planning process described in this Agreement is intended to
result in the cooperative management of WRIA 15, water resources. The parties agree that participation
in the WRIA 15 watershed planning process shall not abrogate any parties' authority or the reserved or.
other rights of any participating agency, except where an obligation has been accepted in writing.
12.0 Notice: Any notice for or concerning this agreement shall be in writing and shall be deemed
given when sent to the address below:
Lead Agency - Kitsap County
Natural Resources
614 Division Street MS-436
Port Orchard, WA 98366