HomeMy WebLinkAboutSquaxin Island Tribe 2106744 MASON CO WA
02/26/2019 10:56 AM MEMO
MASON CO COMMISSIONERS #122162 Rec Fee: $106 00 Pages 8
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MC Contract # 19 -007
00 j' " MASON COUNTY BOARD OF SQUAXIN ISLAND TRIBAL COUNCIL
} COMMISSIONERS 10 SE SQUAXIN LANE
411 NORTH 5TH STREET SHELTON,WA 98584
SHELTON,WA 98584
Memorandum of Agreement
Mason County and the Squaxin Island Tribe
This Agreement is between Mason County ("County") and the Squaxin Island Tribe
("Tribe") (collectively, "Parties"). Otranto( aretylAtt
Sec. 1—Recitals
1.1 The County is a general purpose local government and a subdivision of the State
of Washington, with all the rights and responsibilities pertaining thereto.
1.2 The Tribe is a federally-recognized Indian tribe and a signatory party to the Treaty
of Medicine Creek, with all the rights and responsibilities pertaining thereto.
1.3 Anadromous fish are central to the Tribe's culture and economy, and the Tribe is
concerned that instream flows necessary for fish are unmet in numerous streams throughout
Mason County.
1.4 The Parties recognize and respect, and seek to foster, the government-to-
government relationship that exists between them; to engage in cooperative land use and
watershed planning; to provide for a long-term, environmentally sustainable water supply and
human population growth; to protect and restore anadromous fish resources; and to pursue
mutually beneficial governmental, environmental and economic development interests and
opportunities.
1.5 On March 27, 2018, the Parties signed a nonbinding Letter of Intent that
memorialized their intention to develop a watershed restoration and enhancement plan for
Water Resource Inventory Area 14a ("WRIA 14a"). Among other things, the Letter of Intent
stated that the Parties would work towards executing a binding memorandum of agreement.
This Agreement represents that effort.
1.6 The Parties previously served as initiating governments under Chapter 90.82 RCW,
the Watershed Planning Act, and agreed to form a Watershed Planning Unit as provided in
Chapter 90.82 RCW to develop a watershed plan for WRIA 14a. Mason County served as lead
agency for purposes of state funding for watershed planning. The Watershed Planning Unit
produced a draft watershed plan and valuable supporting studies. The initiating governments
did not approve the draft watershed plan.
1.7 The Parties now desire to work collaboratively to assist in the development of a
watershed restoration and enhancement plan for WRIA 14a in a manner consistent with Chapter
90.94 RCW and other applicable laws and regulations which, in addition to those identified in
• Section 3, include but are not limited to Chapter 36.70A RCW, Chapter 90.03 RCW, Chapter 90.42
RCW, Chapter 90.44 RCW, Chapter 90.54 RCW, Chapter 90.58 RCW and Chapter 90.82 RCW.
1.8 The Parties recognize that, pursuant to Chapter 90.94 RCW, the Washington
Department of Ecology("Ecology") must prepare a watershed restoration and enhancement plan
for WRIA 14a by June 30, 2021, in collaboration with a committee whose members include the
Parties. By then, the Parties and others expect to have gained an improved understanding of,
among other things, the potential impacts of development on streamflows and fisheries, and
strategies for ensuring long-term, environmentally sustainable water supply and growth. The
Parties' active participation as lead entities in the planning process under Chapter 90.94 RCW is
vital to ensure that their respective interests are adequately represented.
IN CONSIDERATION THEREOF,THE PARTIES hereby agree as follows:
Sec. 2—Purposes. --The purposes of this Agreement are—
2.1 To provide a scientific and regulatory framework to mitigate for and offset
development, as provided under Chapter 90.94 RCW and other applicable laws and regulations;
and
2.2 To provide a scientific and planning framework to protect, restore and enhance
impaired instream resources and improve watershed functions that support anadromous fish
resources.
Sec. 3—Authorities
3.1 The Tribe's authority to enter into this Agreement arises under—
3.1.1 The Laws of the United States;
3.1.2 Treaty of Medicine Creek; and
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3.1.3 The Squaxin Island Tribal Constitution and laws;
3.2 Mason County's authority to enter into this Agreement arises under—
3.2.1 Wash. Constitution Article XI;
3.2.2 Chapter 36.01 RCW (County Government Enabling Act);
3.2.3 Chapter 36.70A RCW (Growth Management Act);
3.2.4 Chapter 90.54 RCW (Water Resources Act);
3.2.5 Chapter 90.82 RCW (Watershed Planning Act); and
3.2.6 Mason County Code.
3.3 The Parties' authority to enter into this Agreement also arises under—
3.3.1 Chapter 39.34 RCW (Interlocal Cooperation Act);
3.3.2 Chapter 90.82 RCW (Watershed Planning Act); and
3.3.3 Chapter 90.94 RCW (Streamflow Restoration Act).
Sec. 4— Planning and Funding
4.1 The Parties agree to work cooperatively to assist in the development and
implementation of a watershed restoration and enhancement plan for WRIA 14a that is
consistent with Chapter 90.94 RCW, and other applicable laws and regulations. The Parties may
seek to contract with Ecology to perform some or all of Ecology's responsibilities under Chapter
90.94 RCW for WRIA 14a.
4.2 The Parties may in the future, and if they deem appropriate, consider establishing
a Watershed Management Partnership ("WMP") under RCW 39.34.200 for purposes that include
developing and implementing the watershed restoration and enhancement plan.
4.3 The Parties may in the future, and if they deem appropriate, consider establishing
a Joint Board to administer the WMP, consisting of a representative of each Party. The WMP will
not be a separate legal entity. The Parties each will acquire, hold and dispose of any real or
personal property used by the WMP.
4.4 The Parties may, and as appropriate, individually and/or cooperatively seek
funding from Ecology or other sources to develop and implement the watershed restoration and
enhancement plan envisioned by this Agreement. Nothing precludes the Parties from also,
individually or cooperatively, seeking funding from additional sources.
4.5 Subject to the Parties' agreement, the County may serve as fiscal agent and,
subject to the Parties' agreement, as lead agency for any grant or other funding agreement to
develop the watershed restoration and enhancement plan or to otherwise implement this
Agreement. The County will pass through funding to the Tribe under the terms of any grant or
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other funding agreement that includes Tribal participation within the authorized scope of
activities under the grant or other funding agreement.
Sec. 5—Technical Projects and Coordination
5.1 The Parties agree to work cooperatively to share information regarding current
water uses and future development activities that may adversely affect anadromous fish
resources or other attributes of watershed health. To assist in developing and implementing the
watershed restoration and enhancement plan described in this Agreement, and as described in
this Section,the County will provide public access to information to: (a) inventory current water
uses; (b) summarize changes in water use; (c) estimate future water use requirements; and (d)
identify opportunities to restore and enhance aquatic resources to the extent adversely affected
by current and future water uses.
5.2 No later than June 30, 2020, the County will provide information to the Tribe
about current water uses and future development activities, as follows:
5.2.1. For each subbasin, the County will inventory current water uses. The
inventory will identify—
5.2.1.1. all residential dwellings and other buildings inside the service area
of an approved public water system;
5.2.1.2. all residential dwellings and other buildings using permit-exempt
wells outside the service area of an approved public water system;
5.2.1.3. estimated number and location of permit-exempt wells used for
domestic supply or other beneficial purposes otherwise authorized under RCW
90.44.050;
5.2.1.4. estimated number of shared well agreements;
5.2.1.5. estimated total water use for each residential dwelling and other
buildings using a permit-exempt well; and
5.2.1.6. estimated consumptive water use for each residential dwelling and
other buildings using a permit-exempt well.
5.2.2. The County will establish and maintain a web-based community access
public portal that will document all County permit activity. The portal will include the
following applications and approvals:
5.2.2.1. Department of Community Services Approval/Acknowledgement
• Accessory dwelling unit
• Boundary Line Adjustment
• Building permit
• Large Lot Subdivision
• Parcel Combination
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• Short Subdivision
5.2.2.2. Mason County Public Health Approval/Acknowledgement
• Environmental Health Review
• Land Use Evaluation
• Onsite sewage
• Sewer adequacy
• Two-party (shared well) application
• Water Adequacy
• Well Construction
5.2.3. The County will generate annual reports that show the number and
location of new permit-exempt wells.
5.2.4. The County will update its application form to require an applicant for well
site inspection to provide a copy of the Ecology Well Start Card for each well to be
inspected. The County will include a copy of the Well Start Card on its community access
public portal for the application for well site inspection.
5.2.5. The County will document the GPS locations for all wells subject to well
site inspection, and will include the location with the well site inspection.
5.2.6. The County has established and will maintain a web-based community
access public portal to its onsite septic system ("OSS") maintenance database.
5.2.7. The County will provide the Tribe with access to its OSS maintenance
database public portal to generate reports summarizing OSS maintenance data.
5.3 The County will provide long-term localized water use projections for each Stream
Management Unit within WRIA 14a, as described in WAC 173-514-030, based on —
5.3.1 Office of Fiscal Management ("OFM") population allocation for Mason
County;
5.3.2 Distribution of OFM population allocation within and outside urban
growth areas consistent with applicable laws and regulations and best available science
on water availability and anadromous fisheries;
5.3.3 Service expansion capacity of existing public water systems; and
5.3.4 Mason County's Land Capacity Analysis per RCW 36.70A.115 and WAC 365-
196-325.
5.4 No later than January 1, 2021,the County shall: (a) prepare as initial case reports
for Johns Creek and Goldsborough Creek watersheds that refine and make more realistic the
water use projections in Section 5.3 through scrutinizing potential land subdivisions and
limitations imposed by the County's Resource Ordinance, MCC Ch. 8.52; and (b) cooperatively
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develop with the Tribe a timetable for the County's development of such reports for the
remaining watersheds with instream flows.
5.5 The Tribe shall share with the County data as within WRIA 14a relating to
streamflows and other water measurements, as well as to salmon productivity and abundance,
that will assist in the endeavors described in this Agreement.
5.6 The Parties will consult with Ecology and the Washington Department of Fish &
Wildlife ("WDFW") regarding implementation of this Agreement and adoption of an amended
Water Management Rule for WRIA 14a. The Parties agree to notify and, when appropriate, to
invite each other to meetings with Ecology or WDFW to discuss watershed restoration and
enhancement plan development and/or seek funding or technical assistance regarding the plan
and any potential amendment to the WRIA 14 Rule.
Sec. 6—State Rulemaking
6.1 The Parties shall make their best efforts to reach mutual agreement on the need
to conduct rulemaking to amend Ecology's WRIA 14a water management rule. If Ecology adopts
a watershed restoration and enhancement plan that both Parties approve, the Parties shall:
6.1.1 Request and, if necessary, petition Ecology to initiate rulemaking to amend
the WRIA 14a Rule in a manner consistent with the watershed restoration and
enhancement plan; and
6.1.2 Support a rule amendment consistent with the approved watershed
restoration and enhancement plan, including jointly defend a rule amendment that is
consistent with the watershed restoration and enhancement plan against a third-party
challenge.
Sec. 7—County Comprehensive Plan and Development Regulations
7.1 The Tribe agrees to dismissal of its Petition for Review in Squaxin Island Tribe v.
Mason County, WWGMHB No. 18-2-0002, upon execution of this Agreement.
7.2 The County shall, pursuant to RCW 36.70A.130(6)(a):
7.2.1 Take all necessary steps by June 30, 2021, to initiate review of those
portions of the Comprehensive Plan and development regulations that relate to water availability
and/or fisheries; and
7.2.2 By December 31, 2021, docket and update those portions of the
Comprehensive Plan and development regulations described in subparagraph 7.2.1 in a manner
that includes best available science, particularly as pertains to water quantity and anadromous
fisheries, and is consistent with any watershed restoration and enhancement plan (or
components or subcomponents) that is approved by both Parties, as well as applicable laws and
regulations.
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Sec. 8—Government-to-Government Cooperation
8.1 The Parties shall meet at least semi-annually, on a government-to-government
basis, to discuss issues of mutual concern under this Agreement.
8.2 The Parties will each designate a technical contact person and a policy contact
person for purposes of fostering timely and responsive communication regarding
implementation of this Agreement.
8.3 The Parties shall consider retaining the services of a mutually-agreeable facilitator
to assist them to implement this Agreement.
Sec. 9—General Provisions
9.1 Term and Effect. This Agreement is binding on the Parties and shall remain in
effect until December 31, 2022; provided that if any appeal or lawsuit to enforce this Agreement
is filed, the Agreement shall remain in effect until resolution of the appeal or lawsuit or any
remedies provided through an appeal or lawsuit are performed and completed.
9.2 Dispute Resolution. Except as precluded by statutory filing deadlines,the Parties
shall provide each other with 30 days written notice of any dispute arising between them under
or related to implementation of this Agreement, and shall submit the dispute to non-binding
mediation within 90 days of providing notice of a dispute. A mediator will be chosen by mutual
agreement of the Parties.
9.3 Specific Performance in Event of Default. In the event of default, the Parties
acknowledge that it may be difficult to measure the resulting damages and that damages may
not provide an appropriate remedy. Accordingly, the remedies for a non-defaulting Party are
limited to injunctive relief and specific performance if appropriate.
9.4 Severability. If any provision of this Agreement, or the application thereof to a
Party or circumstance, is found to be invalid or unenforceable, the remainder of the provisions
of this Agreement, or the application of such provision to a Party or circumstances other than
those as to which it is found to be invalid or unenforceable, as the case may be, shall not be
affected thereby.
9.5 Waiver. If any Party fails to exercise any of its rights under this Agreement, it will
not be precluded from subsequent exercise of that right. A failure to exercise any right will not
constitute a waiver of any other rights under this Agreement.
9.6 Amendment.Amendments to this Agreement for any purpose must be in writing
and signed by authorized representatives of each of the Parties.
9.7 Presumption of Good Faith. The Parties to this Agreement will work
cooperatively and in good faith to implement this Agreement, and not unreasonably withhold
any approval required of any Party under this Agreement.
9.8 Governing Law. This Agreement will be governed and enforced under the laws
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of the State of Washington. Venue for any action arising under or related to this Agreement
shall be determined as provided under RCW 36.01.050.
9.9 Applicability. Nothing in this Agreement will be construed to:
9.9.1. Establish a third-party beneficiary relationship or other right to or
responsibility for any person or entity that is not a signatory to this Agreement; or
9.9.2. Affect or modify any treaty or other rights of the Tribe, including its
federally-reserved water rights.
9.10 Sovereign Immunity. The Tribe hereby agrees to a limited waiver of sovereign
immunity for suit in state court exclusively for the limited purpose of allowing the County to
enforce this Agreement solely through the equitable remedies of injunctive relief or specific
performance. This limited waiver is not for the benefit of any third party or for any other action
or any other forum or regarding any other matter, and shall not be enforceable by any third party
or by any assignee of the Parties. In any enforcement action, the Parties shall bear their own
enforcement costs, including attorneys' fees.
9.11 Recording. The County will file this Agreement with the Mason County Auditor as
provided under RCW 39.34.040.
THIS AGREEMENT is effective upon signature by the Parties below.
Mason County Squaxin Island Tribe
Hon. Kevin Shutt' Ho . Arnold Cooper
Chair Tribal Chair
Mason County Board of Commissioners Squaxin Island Tribe
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