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2019/11/12 - Regular Packet
BOARD OF MASON COUNTY COMMISSIONERS DRAFT MEETING AGENDA Commission Chambers— 9:00 a.m. 411 North Fifth Street, Shelton WA 98584 November 12, 2019 1. Call to Order 2. Pledge of Allegiance 3. Roll Call 4. Correspondence and Organizational Business 4.1 Correspondence 5. Open Forum for Citizen Input (3 minutes per person, 15 minutes time limit) If you wish to address the Commission, raise your hand to be recognized by the Chair. When you have been recognized, please step up to the microphone and give your name and address before your comments.The Mason County Commission is committed to maintaining a meeting atmosphere of mutual respect and speakers are encouraged to honor this principle. 6. Adoption of Agenda Items appearing on the agenda after"Item 10. Public Hearings", may be acted upon before 9:15 a.m. 7. Approval of Minutes — October 28, 2019 Briefing Minutes and October 22, 2019 Regular Meeting Minutes. 8. Approval of Action Agenda: All items listed under the"Action Agenda"may be enacted by one motion unless a Commissioner or citizen requests an item be removed from the Action Agenda and considered as a separate item. 8.1 Approval of a resolution establishing an Imprest Revolving checking account for Lake Management District No. 3 for Spencer Lake. 8.2 Approval of the following 2019 meeting changes due to the holidays: • Reschedule the November 26, 2019 Commission meeting to 9 a.m. • Reschedule the November 26, 2019 Board of Health meeting to 10 a.m. • Cancel meetings on December 24th and December 31, 2019 8.3 Approval to appoint David Dally to the Historic Preservation Commission and approval to reappoint Steve Rose to the Historic Preservation Commission. Both terms will expire November 30, 2022. 8.4 Approval of the joint professional services agreement with the City of Shelton and Phillips Burgess Government relations LLC for lobbying services. 8.5 Approval of a professional services contract between the Monarch Children's Justice and Advocacy Center and the Mason County Sheriff's Office to conduct interviews with children regarding abuse. 8.6 Approval to execute a resolution to close Old Belfair Highway at approximately milepost 0.000 to milepost 0.100 on Sunday, December 1, 2019 from 3:30 P.M. to 5:00 P.M. Agendas are subject to change,please contact the Commissioners'office for most recent version. This agenda was last printed on 11/08/19 11:19 AM. If special accommodations are needed,contact the Commissioners'office at ext.419,Shelton#360-427-9670;Belfair #275-4467,Elma#482-5269. MASON COUNTY COMMISSIONERS' MEETING AGENDA November 12, 2019-PAGE 2 8.7 Approval to authorize the Chair to sign Joint Funding Agreement #20YGJFA03400 with the US Department of the Interior, U.S. Geological Survey, for the period October 1, 2019 to September 30, 2020. 8.8 Approval of a resolution to set a hearing with the Hearings Examiner on Wednesday, December 11, 2019 at 1:00 p.m. to consider public comment on the petition for vacation of the south half of W. Walnut Street laying north of 121 W. Walnut Street in the Plat of Moore's Addition to Shelton Block f, lots 1- 4. 8.9 Approval to authorize Public Works/ER&R to use the County Vendor Roster to solicit for vehicle and equipment towing and tire repair services for the 2020 calendar year and approval to allow Public Works/ER&R to sign and award contract(s). Mason County does not guarantee a minimum purchase of these services. 8.10 Approval to have the Chair sign six Out of Class/Lead/Special Pay Authorization Request Forms for Todd Cannon, Dawn Mesojednik, Genie McFarland, Grace Miller, Michael McIrvin, and Anna Smith for calendar year 2020. 8.11 Approval of an agreement with Northwest Event Organizers and Shelton Mason County Chamber of Commerce for the temporary use of Building 10 and parking lot to support holiday tourism efforts. The agreement is for the period of November 25, 2019 to December 31, 2019 in the amount of$2,000. 8.12 Approval to have the Chair sign the Memorandum of Understanding (MOU) between the Mason County Historical Society and Mason County Parks for storage. 9. Other Business (Department Heads and Elected Officials) 10. 9:15 a.m. Public Hearings and Items Set for a Certain Time 10.1 Public Hearing to consider the sale of parcel 32127-53-00174 in the amount of $4,000. (This hearing is continued from October 22, 201-9 Staff: Frank Pinter 10.2 Public Hearing to consider establishment of a playground zone on Sand Hill Road, Belfair. Staff: Diane Sheesley 11. Board's Reports and Calendar 12. Adjournment J:\AGENDAS\2019\2019-11-12 Reg.doc Cle,r MASON COUNTY TO: BOARD OF MASON COUNTY COMMISSIONERS Reviewed: FROM: Ginger Kenyon Ext. 380 DEPARTMENT: Support Services Action Agenda DATE: November 12, 2019 No. 4.1 ITEM: Correspondence 4.1.1 NOAA's National Marine Fisheries Service sent a proposed rule to designate critical habitat for certain population segments of Humpback Whale. 4.1.2 Robert F. McLean sent in an application for the Mason County Planning Advisory Commission. 4.1.3 Washington Department of Natural Resources sent in County Income Reports for October 2019. 4.1.4 Randy Roughton sent in John Tupper's letter of resignation from the Veterans Advisory Board. Attachments: Originals on file with the Clerk of the Board. cc:CMMRS Neatherlin,Shutty&Trask Clerk 18 SjDci mm» Voiture No. 135 Pill 113 COTA STREET SHELTON, WASHINGTON 98584 NOV n 6 2019 Mason� County November 5, 2019 Mason County Commissioners Mason County,WA Please be advised that as of this date John Tupper, has resigned his position on the Veterans Advisory Board and will be replaced by April Pooler, representing the 40 et 8 Voiture 135. Respectfully, Randy Roughton 4 Chef de Gare,40 et 8 Voiture 135 cc: CMMRS Neatherlin, Shutty&Trask Clerk �PS14ING),04, v `^ s � 04 m 0 0p IVATUIL HILARY S.FRANZ October 25,2019 COMMISSIONER OF PUBLIC LANDS The Honorable Kevin Shutty, Chair Mason County Board of Commissioners 411 North Fifth Street Shelton, WA 98584 Dear Commissioner Shutty: The Washington State Department of Natural Resources (DNR) manages approximately 28,909 acres of State Forest Transfer and Purchase Lands that benefit Mason County. These lands generated$3,924,000 in the first three quarters of calendar year 2019. Net value under contract for calendar year 2019 is estimated at $4,704,000 from activities expected to occur under current contracts. The income information in this report does not include anticipated revenues from additional planned activities (contracts harvests, leases, easements, etc.) for which contracts have not been finalized. These income estimates are net after the current agency management cost percentage has been applied. Some counties receive portions of their income from leases and fees; however, the majority of income reflected in this report is derived from timber sales. As most revenue stems from timber sales, these projections can fluctuate depending upon when timber harvests occur. Market conditions, weather, contract requirements, and regulatory requirements influence timber . purchasers' decisions about when to harvest. I appreciate how necessary revenue is to the success of county functions. DNR consistently strives to ensure that we realize the maximum available income from the State Forest Transfer and Purchase Lands. Should you have any questions regarding this information, please contact Scott Sargent, South Puget Sound Region Manager, at 360-825-1631 or at scott.sargent@dnr.wa.gov. Sincerely, RECEIVED NOV 04 2019 Hilary , anz Mason County Commissioner of Public Lands Commissioners FrIclosures PRINTED ON RECYCLED PAPER.DNR IS AN EQUAL OPPORTUNITY EMPLOYER. 61 HILARY S.FRANZ DEPARTMENT OF NATURAL RESOURCES 360-902-1000 COMMISSIONER OF PUBLIC LANDS 1111 WASHINGTON STREET SE FAX 360-902-1775 CPL@DNR.WA.GOV MAIL STOP 47001 TRS 711 OLYMPIA,WA 98504-7001 WWW.DNR.WA.GOV COUNTY INCOME REPORT EXPLANATION OF TABLES October 2019 Two categories of lands are managed by the Washington State Department of Natural Resources (DNR) specifically to benefit counties: 1. State Forest Transfer Lands.Lands acquired by counties through tax foreclosures were transferred to DNR to manage. Management fee rates are established by the Board of Natural Resources. Currently, counties receive 75 percent of the revenue from these lands. 2. State Forest Purchase Lands. State-issued bonds were used to acquire certain parcels from private owners. Typically, these forest lands had been severely logged and were in need of active management. Allocation of revenue from these lands was determined when purchase was authorized, as follows: 26.5 percent to the county in which the property is located; 50 percent to DNR for management expenses; and the remaining 23.5 percent to the State General Fund. Nineteen counties include these types of State Forest Lands within their county boundaries. Income from management activities on State Forest Lands is designated for allocation to several taxing districts in each county. Only a small amount is available to the county for discretionary use. Revenue from State Forest Lands originates primarily from timber sales. These amounts vary widely as market conditions fluctuate. Smaller portions of revenue are derived from activities such as communication site leases, rights-of-way easements for utilities and roads, special forest products, special uses, and interest. Income will also vary with the number of revenue-generating activities within a given year. Variables responsible for high revenues in one year can lead to reduced income the following year. • Table 1 shows the annual revenue for each county from calendar year 2009 through the third quarter of calendar year 2019. This table illustrates the variability in total revenues from year to year. • Table 2 shows projected revenue for all 19 counties from all activities on State Forest Lands for calendar year 2019. • Table 2A shows projected revenue for each timber sale on State Forest Lands in your county anticipated to occur for 2019 and beyond(enclosed if applicable). • Table 3 shows the volume and net value under contract as of September 30, 2019 that is not currently scheduled for harvest until after December 2020(enclosed if applicable). Projections were developed by DNR region staff by contacting each timber purchaser that has rights to an upcoming sale. Purchasers were asked how much and when they planned to harvest the timber from each sale. These projected timber revenues should be considered rough estimates only; actual activity will depend on individual sale characteristics (species, volume, location, etc.), combined with outside market factors as determined by each purchaser. The schedule of future timber sales from State Forest Lands in your county is available upon request from Department of Natural Resources' region staff. Table 1. Revenue to Counties from State Forest Transfer and Purchase Lands (Calendar Years) Updated: 10/10/2019 2019 County 2010 2011 2012 2013 2014 2015 2016 2017 2018 Jon-Sept Clallam 6,229,596 5,502,033 4,738,336 5,643,329 8,487,731 3,376,506 7,938,764 6,543,420 2,987,754 4,922,325 Clark 8,793,446 4,601,597 8,528,782 7,191,261 6,388,518 5,846,269 4,791,957 5,192,493 1,486,670 651,701 Cowlitz 3,709,692 1,534,691 1,557,816 1,598,498 1,067,106 4,025,043 1,358,909 1,358,770 1,417,984 23,061 Grays Harbor 2,178,958 1,991,750 2,168,671 1,075,212 875,687 1,245,311 2,838,170 1,881,541 1,151,469 033,060 Jefferson 981,510 3,082,453 740,481 661,568 1,085,477 2,906,961 1,603,428 1,085,544 2,573,648 1,273,523 King 2,737,595 2,474,997 1,112,153 741,392 2,818,269 952,755 2,397,790 905,021 1,245,122 2,213,313 Kitsap 495,884 55,958 877,589 743,958 293,314 851,397 824,969 1,130,540 556,973 1,547,830 Klickitat 327,073 209,403 559,355 289,623 215,737 352,380 26,797 25,551 10,947 1,308 Lewis 6,147,429 11,076,482 3,439,911 4,280,541 8,677,045 4,053,711 5,416,025 5,411,157 7,666,065 8,154,106 Mason 3,062,868 2,616,802 2,024,430 1,337,166 3,067,093 8,005,336 3,621,960 2,810,189 6,970,807 3,023,773 Pacific 2,060,204 2,547,153 441,369 3,446,724 1,267,286 1,227,526 2,653,344 1,387,737 3,505,380 2,570,410 Pierce 1,523,600 214,159 178,426 121,558 222,815 32,691 335,489 437,463 1,307,281 787,430 Skagit 8,746,747 11,679,594 9,093,422 5,976,604 7,452,783 7,425,535 8,592,232 14,533,379 15,534,103 6,274,108 Skamania 1,215,005 747,982 926,532 1,367,876 2,415,852 1,234,445 2,131,536 1,566,271 2,930,483 3,010,924 Snohomish 13,132,194 13,981,341 5,682,380 11,786,058 9,251,851 7,256,233 5,652,325 7,678,567 6,178,109 5,343,471 Stevens 47,542 59,973 64,654 69,322 70,725 63,533 94,918 90,768 110,709 94,895 Thurston 7,964,904 4,200,388 1,660,728 5,017,407 2,999,025 4,368,240 8,747,144 2,947,101 3,065,897 5,357,686 Wahkiakum 1,820,052 1,400,872 1,956,441 1,742,003 1,631,697 802,706 2,026,441 1,443,199 3,146,937 1,537,501 Whatcom 2,405,630 3,543,071 4,468,281 3,763,694 2,178,129 4,022,292 2,061,161 1,481,660 3,077,070 2,648,081 Totals $73,579,929 $71,520,698 $50,219,757 $56,853,794 $60,466,140 $58,048,870 $ 63,113,359 $57,910,371 $64,923,408 1063,497,= Note: Revenue is received daily by the Department of Natural Resources for activities on State Forest lands and deposited daily at the Office of State Treasurer. Effective February 1998 these monies are remitted to each county via wire transfer a minimum of four times per month. Due to the specific date monies are received by the Department and the cutoff dates used by the State Treasurer for wire transfers, the revenue for the current period may be different than actual remittances to date. 10/16/2019 Table 2. Total Projected Revenues to Counties from State Forest Transfers and Purchase Lands ' (Dollars in Thousands) October thru December 2019 January thru December 2020 County High Medium High Medium Clallam $1,026.3 $1,366.8 $2,806.5 $3,487.5 Clark 620.5 795.4 1,130.5 2,704.4 Cowlitz 38.7 38.7 162.1 179.8 Grays Harbor 200.9 612.7 1,772.3 2,247.3 Jefferson 784.4 784.4 969.8 969.8 King 211.9 211.9 71.3 4,751.1 Kitsap 17.7 17.7 41.1 41.1 Klickitat 7.7 7.7 8.8 8.8 Lewis 2,285.4 2,292.6 6,593.3 8,576.9 Mason 780.2 780.2 1,617.3 1,617.3 Pacific 959.0 959.0 1,157.5 1,157.5 Pierce 0.0 0.0 4.0 4.0 Skagit 816.2 1,270.2 3,800.7 5,319.8 Skamania 14.7 14.7 20.8 20.8 Snohomish 641.2 1,049.2 2,793.3 7,021.2 Stevens 11.2 11.2 87.6 87.6 Thurston 716.7 716.7 3,737.9 7,271.3 Wahkiakum 0.2 0.2 1.9 1.9 W hatcom 1,421.6 1,421.6 79.6 1,114.0 Totals $10,554.5 $12,350.9 $26,856.3 $46,581.9 High - 90 percent reliability that timber harvest will occur and stated revenue will be transmitted. Medium - 50 percent reliability that timber harvest will occur and stated revenue will be transmitted. Note: Projected revenues are based on timber purchaser's logging plans as of September 2019. These plans change with changes in the economy and the business needs of each purchaser. Department of Natural Resources' region staff should be contacted concerning possible fluctuations in timber harvest for sales currently under contract and the schedule of future sales on State Forest Lands in your county. 10/16/2019 Table 2A. Projected Timber Harvest Revenues to Mason County from State Forest Transfer and Purchase Lands by Legal Description (Thousands of Dollars)' Value Under Sale App. Expiration Legal Description October thru December 2019 January thru December 2020 Contract after Number Sale Name Date Section Township Range High Medium High Medium Dec-20 95701 Log Yard 10/31/20 31,32,33 24N 3W 225.6 225.6 676.9 676.9 0.0 98110 Infrared Fire Salvage 09/30/20 7,18 24N 3W 533.2 533.2 799.8 799.8 0.0 Total $758.9 $758.9 $1,476.7 $1,476.7 $0.0 High-90 percent reliability that timber harvest will occur and stated revenue will be transmitted. Medium-50 percent reliability that timber harvest will occur and stated revenue will be transmitted. Values are cumulative from high to medium probability. Note: Projected revenues are based on timber purchaser's logging plans as of September 2019. These plans change with changes in the economy and business needs of each purchaser. Department of Natural Resources regional staff should be contacted concerning possible changes in timber harvest plans and for copies of sale area maps for specific locations of timber sales within the legal descriptions listed above. Mason Page 1 of 1 10/16/2019 RECEIVE® cc: CMMRS Neatherlin, Shutty&Trask Y Clerk M4,yi�g0-k COaN NOV 04 2019 MASON COUNTY COMMISSIONERS 411 NORTH FIFTH STREET Mason County SHEL`I'ON WA 98584 Commissioners Fax 360-427-8437, Voice 360-427-9670, Ext. 419;275-4467 or 482-5269 IRSd I AM SEEKING APPOINTMENT TO Mason County Planning Advisory Commission NAME: Robert F. "Mac" McLean ADDRESS: PO Box 143 PHONE: 360- (home) CITY/ZIP:Allyn 98524 Victor VOTING PRECINCT: WORK PHONE: cell) (OR AREA IN THE COUNTY YOU LIVE) E-MAIL: ------------------------------------------------------------------------------------------- COMMUNITY SERVICE EMPLOYMENT: (IF RETIRED, PREVIOUS EXPERIENCE) (ACTIVITIES OR MEMBERSHIPS) COMPANY: Alaska Dept. Fish&Game —32 yrs. YRS -Rogrd- Member, Hood Cana' Salmon Enhancement Group; Member, Mason County POSITION: Regional Supervisor/Habitat Biologist League of Women Voters COMPANY. Alaska Dept. Natural Resources --5 yrs. YRS POSITION: Regional Manager -------------------------------------------------------------------------------------------- In your words,what do you perceive is the role or purpose of the Board, Committee or Council for which you are applying: The-Planning_Advisory Commission's primary role is to provide policy recommendations to the Board of County _ - Commissioners relative to long-term comprehensive planning (Comprehensive Plan, Shoreline Master Plan),zoning, variances, and other development regulations. Comprehensive planning its ebberitidi to development of the courity's-- economic well-being and preservation of its quality of life. Ad-hoc development inevitably leads to diminishment of future economic opportunities and our quality of life. I believe a diverse citizens advisory committee can best integrate What interests, skills do you wish to offer the Board, Committee,or Council? I have extensive work expedepce in Pat,1ral resource development, land rnapagerpept planning, and the"art"of balancing property rights with the long-term public good. My natural resources background is particularly relevant to e upcoming update Or our Shoreline Master Plan. Please list any financial, professional, or voluntary affiliations which may influence or affect your position on this Board: (i.e.create a potential conflict of interest) Board Member, Hood Canal Salmon Enhancement Group; Property Owner-121 E.Wisteria Lane,Allyn WA Your participation is dependent upon attending certain trainings made available by the County during regular business hours (such as Open Public Meetings Act and Public Records).The trainings would be at no cost to you. Would you be able to attend such trainings? Yes Realistically,how much time can you give to this position? Quarterly Monthly Weekly Daily Office Use Only _�,__�� J�•A Appointment Date Signature Date Term Expire Date Robert F. "Mac" McLean PO Box 143 Allyn, WA 98524 360. Mr. McLean has over 40 years of experience conducting state and federal environmental reviews and fish habitat permitting; baseline freshwater, hydrology, and water quality assessments; fish passage research, and stream channel restoration. He evaluated and permitted a wide variety of resource development activities including transportation infrastructure construction, and forestry, mining, oil and gas, and hydro development projects. He was the former Regional Supervisor for the Alaska Department of Fish and Game (ADF&G) Habitat Division based in Fairbanks, AK with budgetary, permitting and enforcement responsibility for Western and Northwestern Alaska, Interior Alaska, and all North Slope activities. Throughout his career, he reviewed and issued ADF&G permit authorizations and provided comments to other state and federal agencies for over 25,000 projects. Mr. McLean has extensive professional experience with wildlife inventories; aquatic habitat impact assessment, and restoration/mitigation activities; fish habitat and wetland permitting; culvert fish passage (new and retrofit); evaluation of riverine hydrology, diversion, and hydrokinetic projects; design and monitoring of riverine restoration projects; and permit compliance review. After retirement from state service in 2011, Mr. McLean was a Senior Aquatic Biologist for OtterTail Environmental, Inc., and is a founding partner and Senior Aquatic Biologist with 65th Parallel, LLC. Mr. McLean has extensive experience with federal, state, and tribal coordination and with Essential Fish Habitat consultation under the Magnuson-Stevens Act in Alaska. He was an ADF&G representative on the Interim U.S.-Canada Yukon River Salmon Treaty Restoration and Enhancement Subcommittee (1997-2005); Alaska University Transportation Center Grant Review Committee (2008-2010); and the State-Federal Coordination Team, Mineral Management Service, Norton Sound Outer Continental Shelf Mining (1987-1990). Mr. McLean has authored more than 30 publications related to natural resource research and management in Alaska; chaired and participated in Alaska resource committees; at the House Resource Committee's request, co-authored substitute language for the Mining Reclamation Act(1989); co-authored portions of the Alaska Department of Environmental Conservation's water quality mixing zone regulations and implementation policy; and taught or presented at various courses and workshops. Throughout Mr. McLean's ADF&G career, he served as ADF&G's liaison and principle researcher on joint ADF&G, University of Alaska Fairbanks, and Alaska Department of Transportation and Public Facilities fish passage research (1985-2011). He co- developed the ADF&G/ADOT&PF culvert evaluation software and design standards and was the principle author of the current ADF&G/ADOT&PF Memorandum of Agreement on culvert fish passage. He contributed to development of the U.S. Forest Service's FishXing culvert evaluation software and the Federal Highway Administration's manual 1 Design of Fish Passage for Bridges and Culverts. He served on fish passage advisory committees for the Washington Department of Transportation and the U.S. Bureau of Land Management (Oregon). PROFESSIONAL EXPERIENCE Board Member, Hood Canal Salmon Enhancement Group, Belfair WA, 2018 to present. Co-Founder and Principal Aquatic Biologist, 651h Parallel, LLC, 2013-present SeniorAquatic Biologist, OtterTail Environmental, Inc., 2011-2013 Deputized Law Enforcement Officerfor Alaska fish and game statutes and regulations, 1988-2011 Regional Supervisor, Division of Habitat, Alaska Department of Fish and Game, 2008-2011 Regional Manager, Division of Habitat Management and Permitting, Alaska Department of Natural Resources, 2003-2008 Habitat Biologist, Division of Habitat and Restoration, Alaska Department of Fish and Game, 1982-2003 Fisheries Biologist, Division of Fisheries Rehabilitation and Enhancement, Alaska Department of Fish and Game, 1980-1982 Fisheries Biologist/Special Projects Coordinator, Division of Commercial Fisheries, Alaska Department of Fish and Game, 1975-1979 Fisheries Biologist, Division of Commercial Fisheries, Alaska Department of Fish and Game, Summer 1973, Summer/Fall 1974, Summer 1975 Research Manager, Arctic Services, Inc., 1980 PROFESSIONAL CERTIFICATIONS/AFFILIATIONS Habitat Protection and Restoration Evaluation Team, Alaska Sustainable Salmon Fund, 2014. Alaska Miners Association Fisheries Committee, 2011-2013 American Fisheries Society-Western Division, 1991 to present Practical Factors and Considerations Related to Culvert Inspections. Certification, Institute Practicing Engineering, 2010 Academy for Supervisors. Alaska Department of Administration, 2009 Culvert Hydraulics. Certification, Institute Practicing Engineering, 2007 State of Alaska Representative, Restoration and Enhancement Subcommittee, U.S.-Canada 2 Yukon River Interim Salmon Treaty, 1997-2005 Managing Diversity. Alaska Department of Administration, 2003 Documenting NEPA and Transportation Decision Making. Federal Highways Administration, 1998 Rosgen Applied Fluvial Geomorphology. Certification, 1992 and 1994 Mining Reclamation Workshop. Environmental Protection Agency, 1992 Fisheries Habitat Improvement Workshop. American Fisheries Society, 1991 Systematic Development of Informed Consent. Institute for Participatory Management and Planning (Bleiker), 1990 ADF&G Representative, State—Federal Interagency Fish Passage Task Force, 1985-2003 ADF&G Representative, Bering Straits Native Corporation's Habitat Committee, 1989-2003 ADF&G Representative, State-Federal Coordination Team for Norton Sound Outer Continental Shelf Mining, U.S. Mineral Management Service, 1987-1990 Basic Law Enforcement. Alaska Department of Public Safety, 1988 Effects of Dredging on Anadromous Fishes of the Pacific Coast. University of Washington, Fisheries Research Institute, 1988 Mercury in the Marine Environment. Mineral Management Service, 1988 Highways Hydraulics. Certification, Federal Highways Administration, 1988 Highways Hydrology. Certification, Federal Highways Administration, 1986 PROFESSIONAL AWARDS Coastal American Partnership Award. Presented with letter of appreciation from Vice-President Al Gore, 2000 ADF&G Habitat Outstanding Employee Award, 1985 WORKSHOP PRESENTATIONS Fish Passage Through Culverts(Co-Presenter). Alaska Chapter, American Water Resources Association Anchorage, AK. 2000. Wetland Surface Flow and Stream Crossings(Invited Speaker). Oil Practices and Gas Practices and Technologies on Alaska's North Slope. U.S. Department of Energy Workshop. Anchorage, AK. 2000. Culvert Fish Passage Workshop (Co-Presenter). Bureau of Land Management. Coos Bay, OR. 1999. Fish Passage Through Culverts Workshop (Co-Presenter). National Marine Fisheries Service. 3 Santa Rosa, CA. 1998. Biotechnical Stabilization—An Integrated Approach to Riverbank Stabilization(Workshop Moderator).Chena Riverfront Commission and Fairbanks Soil and Water Conservation District with participation by the U.S. Army Corps of Engineers—Waterways Experiment Station, Vicksburg, Mississippi. Fairbanks, AK. 1997. Mine Permitting. University of Alaska Fairbanks. Taught portions of Mine#493 senior level course. 1996. Fisheries Bioengineering Section Symposium (Co-Presenter). American Fisheries Society— Western Division Annual Meeting. Portland, OR. 1993. Mining Reclamation Symposium (Session Co-Chair). Environmental Protection Agency. Anchorage, AK. 1993. Mining Reclamation Short Course (Instructor). Alaska Mining Association. Anchorage, AK. 1991. Fisheries Habitat Improvement Workshop(Co-Chairman). American Fisheries Association. Fairbanks, AK. 1991. Fish Passage Workshop (Session Co-Chair). American Fisheries Association—Alaska Chapter. 1986. PUBLICATIONS Over 30 publications related to: Culvert fish passage research and culvert design; Stream channel restoration; Mining reclamation; Effects of off-road vehicles on fish and wildlife habitat; Alaska Fisheries Atlas; fish and wildlife inventories; Fisheries rehabilitation and enhancement evaluations; Economic valuation of fish and wildlife resources; Gravel mining guidelines; and Water intake structures and guidelines. 4 cc: CMMRS Neatherlin, Shutty&Trask Clerk OF UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration c t NATIONAL MARINE FISHERIES SERVICE Silver Spring, MD 20910 Kevin Shutty OCT 2 ..i 2019 Chairman Mason County Board of Commissioners 411 N 5th St Shelton, WA 98584 Dear Chairman Shutty: We,NOAA's National Marine Fisheries Service (NMFS), recently published a proposed rule to designate critical habitat for the Mexico, Central America, and Western North Pacific distinct population segments (DPSs) of humpback whales (Megaptera novaeangliae) under the Endangered Species Act of 1973 (ESA). We are notifying you because some of these whales occur in state waters adjacent to your county, and we would like to invite comments from you on our proposed rule. On September 8, 2016, we published a final rule that revised the listing of humpback whales under the ESA. In that rule we removed the range-wide listing of the taxonomic species, listed four DPSs as endangered, and listed one DPS as threatened(81 FR 62260). The listing of multiple DPSs of humpback whales under the ESA triggered the requirement to designate critical habitat,to the maximum extent prudent and determinable, for those DPSs of humpback whales that occur in areas under U.S.jurisdiction—specifically, the Mexico, Central America, and Western North Pacific DPSs. Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat is designated at the time of listing (16 U.S.C. 1533(a)(3)(A)). In the final rule to list the five DPSs of humpback whales, we concluded that critical habitat was not yet determinable and thereby extended by one year the statutory deadline for designating critical habitat(16 U.S.C. 15 3 3(b)(6)(C)(ii)). The proposed critical habitats for the three DPSs of humpback whales are within coastal waters off Alaska, Washington, Oregon, and California. All areas included in the proposed designation serve as humpback whale feeding habitat and contain prey species essential to the conservation of the whales. Once critical habitat is designated through a final rule, Federal agencies would be required to comply with section 7 of the ESA to ensure that any actions they authorize, fund, or carry out will not result in the destruction or adverse modification of the critical habitat. While non-Federal entities that receive Federal funds,authorizations, or permits from a Federal agency may be indirectly affected by the designation of critical habitat,the legally binding duty to avoid the destruction or adverse modification of critical habitat rests squarely on the Federal agency. OCT 312019 W . k Mason County ? � ® Printed on Recycled Paper CCri iri:i`i sic)ners a For a detailed description of the proposed critical habitat, please refer to the enclosed proposed rule and associated maps. Electronic copies of the proposed rule and supporting documents may also be found on the NMFS website at https://www.fisheries.noaa.gov/species/humpback-whale (under Regulatory Actions) and at www.regulations.gvu (search on: NOAA-NMFS-2019-0066). We invite written comments on the proposed rule and supporting reports prior to the end of the comment period (see ADDRESSES section of the enclosed Federal Register notice). I appreciate your attention to this important rulemaking and to humpback whale conservation. Sincerely, Angela Somma Chief, Endangered Species Division Office of Protected Resources Enclosure 54354 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules DEPARTMENT OF COMMERCE 20910,Attn:Humpback Whale Critical other relevant impact of specifying any Habitat Proposed Rule. particular area as critical habitat.This National Oceanic and Atmospheric Instructions:Comments sent by any section also grants the Secretary of Administration other method,to any other address or Commerce(Secretary)discretion to individual,or received after the end of exclude any area from critical habitat if 50 CFR Parts 223,224, and 226 the comment period,might not be he determines the benefits of such considered by NMFS.All comments exclusion outweigh the benefits of [Docket No.190925-0039] received are a part of the public record specifying such area as part of the RIN 0648—x106 and will generally be posted for public critical habitat.However,the Secretary viewing on www.regulations.gov may not exclude areas if such exclusion Endangered and Threatened Wildlife without change.All personal identifying will result in the extinction of the and Plants: Proposed Rule To information(e.g.,name,address,etc.), species(16 U.S.C.1533(b)(2)). Designate Critical Habitat for the confidential business information,or Once critical habitat is designated, Central America, Mexico,and Western otherwise sensitive information section 7(a)(2)of the ESA requires North Pacific Distinct Population submitted voluntarily by the sender will Federal agencies to ensure that actions Segments of Humpback Whales be publicly accessible.We will accept they authorize,fund,or carry out are not anonymous comments(enter"N/A"in likely to destroy or adversely modify AGENCY:National Marine Fisheries the required fields if you wish to remain that habitat(16 U.S.C.1536(a)(2)).This Service(NMFS),National Oceanic and anonymous). requirement is additional to the section Atmospheric Administration(NOAA), Documents supporting this proposed 7(a)(2)requirement that Federal Commerce. rule,which include a Draft Biological agencies ensure their actions are not ACTION:Proposed rule;request for Report(NMFS 2019a),a Draft Economic likely to jeopardize the continued comments. Analysis(lEc 2019a),and a Draft existence of ESA-listed species. Section 4(b)(2)Report(NMFS 2019b), Specifying the geographic location of SUMMARY:We,the NMFS,propose to are available on the Federal e- critical habitat also facilitates designate critical habitat for the Rulemaking Portal implementation of section 7(a)(1)of the endangered Western North Pacific www.regulations.gov/#!docketDetail;D=. ESA by identifying areas where Federal distinct population segment(DPS),the NOAA-AWS-2019-0066. agencies can focus their conservation endangered Central America DPS,and FOR FURTHER INFORMATION CONTACT:Lisa Programs and use their authorities to the threatened Mexico DPS of Manning,NMFS,Office of Protected further the purposes of the ESA.,See 16 humpback whales(Megaptera Resources 301-427-8466. U.S.C. 1536(a)(1).Critical habitat novaeangliae)pursuant to section 4 of SUPPLEMENTARY INFORMATION:Section requirements do not apply to citizens the Endangered Species Act(ESA). 3(5)(A)of the ESA defines critical engaged in actions on private land that Areas proposed as critical habitat habitat as(i) specific areas within the s do not involve a Federal agency. include specific marine areas located off This proposed rule summarizes the coasts of California,Oregon, the geographical area occupied n the which relevant information regarding the Washington,and Alaska.Based on species,at the time is listed, o biology and habitat use of humpback consideration of national security and are found those physical or biological whales,the methods used to develop economic impacts,we also propose to features essential to the conservation the three proposed critical habitat exclude multiple areas from the of the species and(II)which may designations,and the proposed critical require special management habitats for the Central America CAM designation for each DPS. as are considerations or protection;and(ii) ( )' soliciting comments on all aspects of the P Mexico(MX),and Western North Pacific proposed critical habitat designations specific areas outside the geographical (WNP)DPSs of humpback whales.The and will consider information received area occupied by the species at the time following supporting documents prior to making final designations. it is listed,upon a determination by the provide more detailed discussions of Secretary that such areas are essential information and analyses that DATES:Comments must be received by for the conservation of the species.(16 contributed to the conclusions December 9,2019.Requests for public U.S.C.1532(5)(A)).Conservation is presented in this proposed rule:Draft hearings must be made in writing by defined in section 3(3)of the ESA as the Biological Report(NMFS 2019a),Draft November 25,2019. use of all methods and procedures Economic Impact Analysis(lEc 2019a), ADDRESSES:You may submit data, which are necessary to bring any and Draft Section 4(b)(2)Report(NMFS information,or comments on this endangered species or threatened 2019b).These supporting documents are document,identified by NOAA—NMFS— species to the point at which the referenced throughout this proposed 2019-0066,and on the supplemental measures provided pursuant to this Act rule. documents by either of the following are no longer necessary(16 U.S.C. As detailed in the sections that methods: 1532(3)).Section 3(5)(C)of the ESA follow,the specific occupied areas Electronic Submission:Submit all provides that,except in those proposed for designation as critical electronic comments via the Federal circumstances determined by the habitat for the WNP DPS of humpback eRulemaking Portal.Go to Secretary,critical habitat shall not whales contain approximately 78,690 www.regulations.gov/ include the entire geographical area square nautical miles(nmi2)of marine #!docketDetail;D=NOAA-MtWS-2019- which can be occupied by the habitat within the North Pacific Ocean, 0066,click the"Comment Now!"icon, threatened or endangered species. including areas within the Bering Sea complete the required fields,and enter Section 4(b)(2)of the ESA requires the and the Gulf of Alaska.Specific or attach your comments. Secretary to designate critical habitat for occupied areas proposed for designation Mail:Submit written comments to threatened and endangered species on as critical habitat for the CAM DPS of Endangered Species Division,Office of the basis of the best scientific data humpback whales contain Protected Resources,National Marine available and after taking into approximately 48,459 nmi2 of marine Fisheries Service,1315 East West consideration the economic impact,the habitat within the North Pacific Ocean, Highway(SSMC3),Silver Spring,MD impact on national security,and any specifically within the portions of the Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54355 California Current Ecosystem off the determinable,for those DPSs occurring 2016),recent biological surveys and coasts of Washington,Oregon,and in areas under U.S.jurisdiction— reports,and peer-reviewed literature. California.Specific occupied areas specifically,the CAM,MX,and WNP The CHRT also convened a workshop proposed for designation as critical DPSs. on May 22-23,2018,at the NMFS habitat for the MX DPS of humpback In the proposed rule to revise the Alaska Fisheries Science Center(AFSC) whales contain approximately 175,812 humpback whale listing,we solicited in Seattle,Washington,that brought nmi2 of marine habitat within the North information that could inform a critical together the CHRT members as well as Pacific Ocean,specifically within habitat designation(80 FR 22304;April 11 additional researchers from either the portions of Bristol Bay,the Bering Sea, 21,2015),but we did not receive AFSC or other parts of NMFS.Several the Gulf of Alaska,and California relevant data or information regarding other individuals from external Current Ecosystem. habitats or habitat features in areas organizations(specifically,the Cascadia Based on consideration of economic within U.S.jurisdiction.In the final rule Research Collective(CRC),Moss impacts under section 4(b)(2)of the to list five DPSs of humpback whales, Landing Marine Laboratories,National ESA,we propose to exclude we concluded that critical habitat was Park Service,and Oregon State approximately 44,119 nmiz of marine not yet determinable,which had the University)participated during portions habitat from the designation for the effect of extending by one year the of the workshop either in person or by WNP DPS,approximately 12,966 nmi2 statutory deadline for designating video conference to present and discuss of marine habitat from the designation critical habitat(16 U.S.C. - their relevant research.Data considered, for the CAM DPS,and approximately 1533(b)(6)(C)(ii)). analyses conducted,and conclusions 30,527 nm12 of marine habitat from the On March 15,2018,the Center for reached by the CHRT are discussed in designation for the MX DPS.Based on Biological Diversity,Turtle Island detail in the Draft Biological Report consideration of national security Restoration Network,and the Wishtoyo (NMFS 2019a).Information from that impacts under section 4(b)(2)of the Foundation filed a complaint seeking report is summarized in the sections ESA,we also propose to exclude court-ordered deadlines for the issuance that follow. approximately 48 nmi2 of marine of proposed and final rules to designate habitat from the critical habitat critical habitat for the CAM,MX,and Species Description and Status of the designation for the MX DPS in WNP DPSs of humpback whales.See DPSs Southeast Alaska;and we propose to Center For Biological Diversity eta].v. Humpback whales(Megaptera exclude about 1,522 nmi2 of marine National Marine Fisheries Service,et al., novaeangliae(Borowski 1781)are large, habitat off the coast of Washington from No. 3:18–cv-01628–EDL(N.D.Cal.).The baleen whales(family Balaenopteridae) the designations for the CAM and MX parties entered into a settlement that are found in all oceans across the DPSs. agreement with the approval and globe.They range in color from black to Background oversight of the court,and subsequently gray with varying amounts of white on amended the dates specified in the their bellies,flukes,and fins.Some On September 8,2016,we published original order.The amended settlement patterns of color variation may occur a final rule that revised the listing of agreement stipulates that NMFS must among whales found in different humpback whales under the ESA by submit a proposed determination geographic regions,but variations also removing the original,taxonomic-level concerning the designation of critical occur among individual whales. species listing,and in its place listing habitat for these three DPSs to the Distinctive natural markings on the four DPSs as endangered and one DPS Federal Register by September 26,2019, underside of the fluke along with other as threatened(81 FR 62260).We also and(to the extent a proposed rule has identifying features such as scars have determined that nine additional DPSs been published)a final rule by been used to identify individual whales did not warrant listing.Prior to this Sepptember 28,2020. for decades by cetologists around the revision,the humpback whale had been In 2018,a critical habitat review team world.Also among their distinctive listed as an endangered species in 1970 (CHRT)was convened to assess and traits are their long flippers,which are under the precursor to the ESA(the evaluate information in support of a knobbed on the leading edge,and both Endangered Species Conservation Act of critical habitat designation for the CAM, flippers and fluke are scalloped on the 1969),and then transferred to the list of MX,and WNP DPSs of humpback trailing edge. endangered species under the ESA. whales,which occur within portions of Humpback whales can weigh over 40 Although the ESA was later amended to U.S.waters in the North Pacific Ocean. tons(Ohsumi 1966)and are,on average, require the designation of critical The CHRT consisted of eight biologists 13-15 meters in length at maturity habitat for listed species,when from NMFS and two from the National (Chittleborough 1965,Mikhalev 1997). humpback whales were originally listed, Ocean Service(NOS),all of whom have Females are longer than males by about there was no statutory requirement to expertise and experience in humpback 1 to 1.5 meters(Chittleborough 1965). designate critical habitat for this whale research or management, The oldest known humpback whale was species.Section 4(a)(3)(A)of the ESA experience in developing critical habitat estimated to be about 95 years old now requires that,to the maximum designations,and/or expertise in (Chittleborough 1965,Gabriele et al. extent prudent and determinable, geographic information systems(GIS, 2010).Average generation time has been critical habitat be designated at the time i.e.,mapping).To determine potential estimated to be 21.5 years(Taylor et al. of listing(16 U.S.C.1533(a)(3)(A)). critical habitat areas for the DPSs,the 2007),and adult survival rate is Pursuant to implementing regulations at CHRT reviewed available data on estimated to be between 0.87-1.00, 50 CFR 424.12(g),critical habitat cannot humpback whales,including the global depending on location and year(Barlow be designated within foreign countries assessment of humpback whales and the and Clapham 1997,Chaloupka et al. or in areas outside the jurisdiction of the status review that were completed in 1999,Mizroch et al.2004). United States.Thus,the listing of DPSs support of the ESA listings(Fleming Humpback whales breed and calve in of humpback whales under the ESA in and Jackson 2011,Bettridge et al.2015), tropical/subtropical waters in the winter 2016 triggered the requirement to the proposed and final listing rules for months,typically during January–May designate critical habitat,to the humpback whales(80 FR 22304,April in the Northern hemisphere.Calving maximum extent prudent and 21,2015;81 FR 62260,September 8, intervals are between 1 to 5 years but 54356 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules are more commonly between 2 to 3 (Zerbini et al.2006,Ford et al.2009, competition(with fisheries,Bettridge et years(Wiley and Clapham 1993,Steiger Bettridge et al.2015).Despite the al.2015).Humpback whale meat has and Calambokidis 2000).Annual official end of commercial whaling, been identified in Korean markets,and calving can occur but is rare(Straley some countries continue to engage in it is possible that whaling could be 1989).After an 11-12 month gestation whaling practices. posing a threat to this DPS(Brownell et period,calves are bom in the low The CAM DPS is listed as endangered al.2000,Baker et al.2006).Within U.S. latitude breeding grounds(Matthews and has been most recently estimated to waters,whales from this DPS have been 1937).Lactation occurs for close to 11 include 783 whales(CV=0.170,Wade observed in waters off Alaska,primarily months,with calves beginning to wean 2017).Entanglement in fishing gear and the eastern Aleutian Islands. at around 6 months(in June or July in vessel collisions,in particular,were All three of these listed DPSs overlap the Northern Hemisphere)and reaching identified as the most significant threats spatially to varying degrees with the full independence after about a year to this DPS in the 2016 final listing rule Hawaii DPS of humpback whales, (Chittleborough 1958,1965;Clapham (81 FR 62260,September 8,2016). which was found to not warrant listing and Mayo 1990). Within U.S.waters,whales of this DPS under the ESA in 2016(81 FR 62260, Males produce long,complex songs are observed off the coasts of September 8,2016).The Hawaii DPS during the breeding season(Payne and Washington,Oregon,and California. whales breed in waters around the Mcvay 1971),possibly to communicate The MX DPS is listed as threatened Hawaiian Islands and have been their location and readiness to mate or and has been most recently estimated to observed on most of the known feeding to establish social order among males,or have an abundance of 2,806 whales(CV grounds within the North Pacific both(Tyack 1981,Darling and Berube =0.055,Wade 2017).Entanglement in (Bettridge et al.,2015).This population 2001).Singing is typically heard on the fishing gear,especially off the coasts of has an estimated abundance of about breeding grounds but has also been Washington,Oregon,and California, 11,571 whales(Wade 2017).While these detected during migration(Norris et al. was identified as the primary threat to whales are no longer protected under 1999 Noad and Cato 2007)and on this DPS.Entanglement has been the ESA(and critical habitat is not being feeding grounds as well(Mattila et al. documented primarily in pot and trap designated for them),they continue to 1987,McSweeney et al.1989,Clark and gear but also in gillnets(Carretta et al. be managed under the MMPA. Clapham 2004,Stimpert et al.2012, 2018).Other threats include ship strikes Distribution and Habitat Use Magnusdottir et al.2014).While on and persistent organic pollutants, breeding grounds,humpback whales although,at the time of listing,these Humpback whales have strong fidelity rarely feed(Baraff et al.1991). threats were not considered to be to particular breeding regions,a general Around springtime,the whales significantly impacting the survival of pattern that contributed to how the typically migrate to temperate,higher this DPS(Fleming and Jackson 2011, various DPSs were delineated and listed latitude regions to feed and build up fat Bettridge et al.2015).More recently, under the ESA(Bettridge et al.2015).In and energy reserves for the return Rockwood et al.(2017)estimated that particular,the MX DPS includes whales migration,lactation,and breeding. the mortality due to ship strikes(22 per that breed in the area of mainland Humpback whales feed on mainly year)is greater than the estimated Mexico and the Revillagigedo Islands euphausiids(krill)and small pelagic fishery bycatch and is equal to the (Bettridge et al.2015,50 CFR 223.102). fishes(Nemoto 1957,1959;Klumov potential biological removal(PBR)level Whales from the CAM DPS breed off the 1963;Rice 1963;Krieger and Wing 1984; for the Califomia/Oregon/Washington coasts of Costa Rica,Panama, Baker 1985;Kieckhefer 1992;Clapham stock of humpback whales(Carretta et Guatemala,El Salvador,Honduras,and eta].1997). al.2018).(Humpback whales are Nicaragua(Bettridge et al.2015,50 CFR Humpback whales were commercially. separately identified and managed as 224.101).Humpback whales from the hunted for centuries throughout their "stocks"under the Marine Mammal WNP DPS breed in waters around range until the 1950s/60s.Reported Protection Act(MMPA,16 U.S.C.1361 southern Japan(e.g.,Okinawa),off the catches from the 20th century suggest et seq.),a management unit that is not Philippines in the Kuroshio Current, that humpback whales were distributed necessarily coextensive with a and in additional breeding grounds in extensively throughout the North Pacific corresponding DPS under the ESA.PBR the Western North Pacific that were (Ivashchenko et al.2015).Non- is defined under the MMPA as the "unknown"at the time of listing subsistence whaling was first prohibited maximum number of animals(not (Bettridge et al.2015,50 CFR 224.101). by the International Whaling including natural mortalities)that may As discussed in more detail later(see Commission(IWC)in 1955 in the North be removed from the stock while "Geographical Area Occupied by the Atlantic and then in the North Pacific allowing that stock to reach or maintain Species"),because none of the and Southern Hemisphere in 1965 after its optimum sustainable population.) confirmed breeding areas for these DPSs a final commercial whaling season Whales within the MX DPS have a are within waters under U.S. (NMFS 1991).The total catch of broad distribution within U.S.waters jurisdiction,we cannot propose to humpback whales exploited in the and occur along the coasts of designate them as critical habitat. North Pacific in the 20th century is Washington,Oregon,California,and Humpback whale breeding areas are estimated to be just over 29,000 whales Alaska. characterized by warm,shallow waters (Ivashchenko et al.2017).By the time The WNP DPS is listed as endangered (Clapham and Mead 1999,Ersts and modem commercial whaling was and has an estimated abundance of Rosenbaum 2003,Rasmussen et al. officially ended(though not completely 1,066 whales(CV=0.079,Wade 2017). 2007),and the whales are often found in ceased),the total abundance of There is a high degree of uncertainty association with islands,banks,or humpback whales in the North Pacific regarding the threats to this DPS; offshore reefs(Dawbin 1966,Whitehead may have been as few as roughly 1,000 however,entanglement in fishing gear and Moore 1982,Baker et al.1986). whales(Rice 1978).Since the likely represents a serious threat These warm,tropical and subtropical moratorium on commercial whaling, (Brownell et al.2000,Baker et al.2006). breeding areas have low productivity, populations have been steadily Other likely threats to this DPS include and thus limited food availability,and increasing but some have not yet offshore energy development activities, the whales do not typically feed while returned to historical abundance levels vessel collisions,pollution,and food on the breeding grounds(Rasmussen et Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54357 al.2012,Villegas-Zurita and Castillejos- whales indicated highly significant Dalla Rosa et al.2012,Thompson et al. Moguel 2013). differences in mtDNA haplotype 2012,Friday et al.2013,Chenoweth et In the North Pacific Ocean,humpback frequencies among the feeding regions al.2017,Straley et al.2018,Santora et whales feed in biologically productive overall(overall FST=0.121,(DST=0.178, al.2018).Physical oceanographic waters along the coasts of California, p<0.0001),and pairwise comparisons mechanisms influencing primary Oregon,Washington,and Alaska; were also significant(at p<0.05)for 32 productivity are subject to significant British Columbia,Canada;and in waters of 36 possible comparisons(excluding variations on seasonal,inter-annual off of Russia(e.g.,Kamchatka,_ the western Aleutians due to low (e.g.,El Nino),and decadal time-scales Commander Islands).Although these sample size,Baker et al.2013). (e.g.,Pacific Decadal Oscillation(PDO) feeding areas have an almost continuous Comparisons of bi-parentally inherited cycles;Barber and Chavez 1983, distribution around the North Pacific microsatellite DNA indicated very weak McGowan et al.1998,2003),which basin,multiple studies have indicated but significant differentiation of adds variability to humpback whale fairly high levels of fidelity of microsatellite allele frequencies among prey distributions and abundances humpback whales to particular areas feeding areas,suggesting male-biased within the feeding areas. and limited movements of whales gene flow(overall FST=0.0034,p< Satellite tagging efforts have provided among feeding areas(e.g.,Waite et al. 0.001,Baker et al. 2013).The high some insights into the fine-scale: 1999,Calambokidis et al.2001, degree of differentiation in mtDNA movements of the whales while on the Calambokidis et al.2008,Witteveen et among feeding areas reflects the foraging grounds,indicating the al.2011,Witteveen and Wynne 2016a, influence of maternal fidelity to feeding duration,area,and variability in the Gabriele et al.2017).Understanding of areas.This result is consistent with areas over which the whales feed.For how humpback whale populations are findings of previous but more spatially- instance,in the summers of 2007 to spatially structured while in these limited studies(e.g.,Baker et al.1998, 2011,Kennedy et al.(2014)deployed feeding areas has been informed by Witteveen et al.2004).This effect likely satellite tags on eight adult humpback numerous studies,and probably most stems from the close dependency of whales in Unalaska Bay,Alaska,and notably by the results of the Structure of calves on their mothers during their first tracked the whales for an average of 28 Populations,Levels of Abundance and year of life,during which they travel days(range=8–67 days).Position data Status of Humpbacks Study—referred to with their mothers and thereby inherit were then analyzed and categorized into as the SPLASH study.This study information from their mothers about one of three possible behavioral modes: involved the collection of both feeding destinations(Baker et al.1987, Transiting;area-restricted searching photographic and genetic data Pierszalowski et al.2016). (ARS),or unclassified.The slower throughout the North Pacific by several Overall,while the available photo- speeds and higher turning angles during hundred researchers working in over 10 identification data indicate varying ARS behavior are considered to be countries(Calambokidis et al.2008). degrees of mixing of populations across indicative of active foraging(Kennedy et Through the SPLASH study,photo- the feeding areas,the overall pattern of al.2014,citing Kareiva and Odell 1987, identification data were collected over structuring of populations among the Mayo and Marx 1990).Results indicated that three breeding seasons(2004,2005,and feeding areas,as well as the pattern of t over shelf whales mainly stayed 2006)and over two feeding seasons migratory connections between and slope habitat(1,000 d or shallower) (2004,2005)in known breeding and particular feeding areas and breeding feeding areas.Through this effort,a total areas,contributed to how the various while in ARS mode,and all but one of 7,971 unique whales were photo- DPSs are described in the listing rule whale remained relatively close to identified(Calambokidis et al.2008). (81 FR 62260,September 8,2016).In Unalaska Bay during the tracking For most analyses,photo-identification particular,the MX DPS is described as period.One whale,however,left data were grouped into six broad including whales that feed primarily off Unalaska Bay 3 days after being tagged, feeding regions:Kamchatka(Russia), California-Oregon,northern traveling along the Bering Sea shelf Aleutian Islands/Bering Sea,Gulf of Washington-southern British Columbia, towards Russia and covering almost Alaska,Southeast Alaska/Northern in the Gulf of Alaska and East Bering 3,000 km in 26 days,indicating that the British Columbia,Southern British Sea(50 CFR 223.102).The CAM DPS is whales may in fact travel long distances Columbia/Northern Washington,and described as including whales that feed during the feeding season(Kennedy et California/Oregon(Calambokidis et al. along the West Coast of the United al.2014).Satellite tags deployed on 2008,Barlow et al.2011,Wade et al. States and southern British Columbia whales tagged off central California in 2016).Analysis of the photo- (50 CFR 224.101).The WNP DPS is the summer/fall of 2004-2005 and in identification data revealed that both described as including whales that feed summer of 2017 and that were tracked within-season and between-season primarily in the West Bering Sea and off for a minimum of 30 days,exhibited movements of whales between these six the Russian coast and the Aleutian feeding behavior(as detected by ARS feeding areas were infrequent and any Islands(50 CFR 224.101). data)over an area that averaged 20,435.6 such exchanges were mainly to adjacent Although these feeding areas are km2(n=8,SE=7322.8)and 17,684.4 areas(Calambokidis et al.2008),which broadly distributed and range widely in km2(n=7,SE=13,927.6 km2), is consistent with previous findings terms of latitude,they are usually over respectively(Mate et al.2018).In the from earlier region-wide studies(e.g., the continental shelf or near the shelf latter case,this average area extended Calambokidis et al.1996,Calambokidis edge at shallow(-10 m)to moderate from the Channel Islands in southern et al. 2001). water depths(-50-200 m)and in cooler California to central Oregon.Similar Genetic analyses of skin samples waters(Zerbini et al.2016,Becker et al. tagging work off the Oregon coast in collected during the SPLASH study 2016 and 2017).Often,feeding areas are September/October in 2017 indicated provide additional insight into the associated with oceanographic(e.g., the whales actively fed over areas of structuring of humpback whale upwelling,fronts),bathymetric(e.g., comparable size(average area=17,215.6 populations across the feeding areas submarine canyons,banks),and/or km2;n=4;SE=8,430.6),and for the few (Baker et al.2013).Analysis of biological features(e.g.,spawning areas whales tagged,the feeding area maternally inherited mitochondrial for fish)that serve to concentrate or extended from Point Arena,central DNA(mtDNA)from 1,010 unique aggregate prey(e.g.,Tynan et al.2005, California,to the southwest corner of 54358 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules Vancouver Island,British Columbia tracked along their full migration route (Parathemisto libeelula),and shrimps (Mate et al.2018).The area over which to breeding areas,and an additional 20 (Eualus gaimardii and Pandalus whales actively feed(as indicated by whales were tracked for the early goniurus)(Tomilin 1967).There have ARS data over a minimum of 30-days) portion of their migration before . also been observations of humpback appears to be somewhat smaller in transmissions ceased.These tagging whales feeding on hatchery-released Southeast Alaska,where the average efforts indicate that up to three different juvenile salmon in Southeast Alaska ARS area for whales tagged in summer migration routes were taken by whales (Chenoweth et al.2017).A more of 1997 and in fall of 2014-2015 was departing from Southeast Alaska,with detailed discussion of the humpback 4,904.3 km2(n=3,SE=1,728.8)and most(n=20)heading towards Hawaii whale diet by feeding regions within the 2,862.7 km2(n=4,SE=1,834.2), (the breeding destination for the non- North Pacific is provided in the Draft respectively(Mate et al.2018). listed Hawaiian population of Biological Report(NMFS 2019a). Differences in the area over which the humpback whales),one that headed Humpback whales are gulp feeders, whales feed between years likely west into the Gulf of Alaska,and two gulping mouthfuls of prey and water at reflects a seasonal shift in target prey that headed south along the U.S West a time(Ingebrigtsen 1929),and use a and prey distributions(Witteveen et al. Coast.One whale that had been tagged variety of capture techniques while 2011,Straley et al.2018). in 2017 off the coast of Oregon was feeding,including lunges and bubble Migrations of whales between their tracked southward along a route that structures(bubble nets,columns, seasonal habitats have been studied eventually extended well offshore clouds,and curtains;Jurasz and Jurasz indirectly using genetic data and before heading on an eastward trajectory 1979,Hain et al.1982).In general, matching of individual photo-identified towards mainland Mexico.Another two humpback whales will lunge feed,both whales at feeding and breeding areas, whales that had been tagged off central towards the surface and at depths,while but the specific migratory routes used California in 2004/2005,took much alternating between periods of short, by the whales remains poorly more coastal routes southward to shallow dives and long,deeper dives understood,especially in the North Mexico and Guatemala. and can execute multiple lunges in one Pacific.Although data are limited, Diet and Feeding Behaviors dive(Goldbogen et al.2008).Lunge telemetry data from satellite-monitored Humpback whales are generalists, types include lateral lunge feeding, radio tags have provided additional vertical lunge feeding,and inverted taking a variety of prey while foraging lunge feeding(Jurasz and Jurasz 1979). insights into seasonal migrations. Humpback whales were initially and also switching between target prey Additionally,humpbacks have been thought to migrate along a coastal route depending on what is most abundant in observed using multiple types of bubble when travelling between their seasonal the system(Witteveen et al.2015, structure feeding techniques for g Fleming et al.2016).Within the habitats,but migration routes are now California Current marine ecosystem capturing prey,such as bubble nets, known to be varied,with some whales (CCE),the highly productive coastal columns,clouds,and curtains(Jurasz taking coastal routes and some taking system that extends from British and Jurasz 1979,Hain et al.1982)and pelagic routes(Fleming and Jackson Columbia,Canada to the southern Baja techniques that combine clouds with 2011).For instance,Lagerquist et al. California Peninsula,humpback whales surface disturbances(like lobtail (2008)tagged 11 whales off of Socorro are known to target Pacific sardine feeding,Weinrich et al.1992).Artificial Island,Mexico(within the Revillagigedo (Sardinops sagax),northern anchovy bubble structures have been shown Archipelago)in February 2003,and, (Engraulis mordax),Pacific herring experimentally to constrain the spatial after an average of 13.6 days(range= (Clupea pallashl,euphausiid`s movement of herring,particularly large 3.8-27.0 days),seven of the whales (specifically Thysanoessa,Euphausia, schools(Sharpe and Dill 1997), migrated to areas north of the breeding Nyctiphanes,and Nematoscelis),and supporting the conclusion that bubble areas in Mexico—three were adult occasionally juvenile rockfish(Sebastes; techniques are likely an effective whales without a calf and four were Rice 1963,Kieckhefer 1992,Clapham et method for herding prey.Additional adult females travelling with a calf.Two al.1997).In waters off Alaska,the feeding strategies documented include of these seven whales were tracked all humpback diet includes:Euphausiids, "blaze feeding"(flashing the white side the way to feeding grounds—one to capelin(Mallotus villosus),Pacific of pectoral flipper at prey;Tomilin 1957 British Columbia(46 d migration)and herring,Atka mackerel(Pleurogrammus cited in Brodie 1977,Sharpe 2001), one to Alaska(49 d migration).The monopterygius),juvenile walleye swimming/thrashing(roiling the surface migration routes were well offshore, pollock(hereafter"pollock,"Gadus and thrashing tail,Hain et al.1982), averaging 444 km from the coast and chalcogrammus(formerly,Theragra looping,flick feeding(lashing tail at the ranging from 115 to 935 km from the chalcogramma)),Pacific cod JGadus surface,Jurasz and Jurasz 1979),vertical coast(Lagerquist et al. 2008).One macrocephalus),saffron cod(Eleginus rise and subsidence(creates a reduced whale,which travelled the closest to gracilis),Arctic cod(Boreogadus saida), pressure zone in the water column, shore overall,came within 41 km of rockfish(Sebastes),Pacific sand lance Hays et a1.1985),"roiling"the surface Point Arena,California at the closest (Ammodytes personatus),eulachon with flippers and flukes(Hain et al. point along its migration.An offshore (Thaleichthys pacificus),surf smelt 1982),and trap-feeding(McMillan et al. northbound migratory route between the (Hypomesus pretious),Pacific sandfish 2019). Revillagigedo Archipelago and Alaska (Trichodon trichodon),and myctophids Humpback whales may also work in was also documented through visual (primarily Stenobrachius leucopsarus, groups to herd and capture prey.For and acoustic detections during a ship- Nemoto 1959,Klumov 1965,Tomilin instance,in Southeast Alaska,groups of based survey by Norris et al.(1999). 1967,Krieger and Wing 1984,Baker whales have been observed to release Southbound migration routes were 1985,Witteveen et al.2008,Neilson et bubbles simultaneously in the same recorded by researchers from Oregon al.2015).Euphausiids consumed in area,and then surface through the State University,who conducted Alaska are mainly from genus center of the bubbles together to satellite tagging efforts in multiple Euphausia and Thysanoessa(Krieger consume the herded herring Gurasz and feeding areas during 1997-2017(Mate et and Wing 1984).Additional prey noted Jurasz 1979,Baker 1985,D'Vincent et al. al. 2018).Six of 88 tagged whales were in Alaska are mysids,amphipods 1985).Vocalizations may be important Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54359 in coordinating group feeding efforts regarding the geographical area California-Oregon,northern (D'Vincent et al.1985). occupied by each of the three DPSs of Washington/southern British Columbia, Feeding techniques likely vary humpback whales,each of which is a northern and western Gulf of Alaska, depending on the target prey species "species"as defined in the ESA.See 16 and East Bering Sea(50 CFR 223.102(e)). and prey density Gurasz and Jurasz U.S.C.1532(16)(defining"species"to Of the three DPSs addressed in this 1979).Dive depth of foraging whales include any distinct population segment proposed rule,the MX DPS has the also varies depending on the target prey. of any species of vertebrate fish or broadest distribution within the U.S. In Alaska,Witteveen et al.(2015) wildlife which interbreeds when portion of their range.Through the reported that whales dove deeper to mature).Additional details on the range SPLASH study,MX DPS whales were forage on krill than on fish(average of each DPS are provided in the Draft photo-identified in all five of the major depths of 98 m versus 80 m, Biological Report(NMFS 2019a). feeding areas in,or partially in,U.S. respectively).Similarly,in areas off Central America DPS waters—i.e.,California/Oregon(n=105 California,Szesciorka(2015) whales),northern Washington/southern documented shallower feeding on the As discussed earlier,the CAM DPS is British Columbia(n=27 whales), continental shelf where fish were more described as humpback whales that southeast Alaska/northern British readily available,and deeper feeding on breed in waters off Central America in Columbia(n=35 whales),the Gulf of continental break/slope where krill were the North Pacific Ocean and feed along Alaska(n=97 whales),and the Aleutian present.For dive depths in general, the west coast of the United States and Islands/Bering Sea(n=27 whales, multiple authors have documented southern British Columbia(50 CFR Barlow et a1.2011). varying average and maximum dive 224.101(h)).The breeding range of this In terms of their distribution across depths,with mean depths ranging from DPS includes waters off the Pacific coast this range,whales using different around 66 m to 107 m and maximim of Central America,from Panama north portions of the MX DPS breeding area depths ranging from approximately 115 to Guatemala,and possibly into appear to target different feeding m to 388 m(in Alaska,California,and southern Mexico(Bettridge et al.2015, destinations.During SPLASH surveys, Antarctica;Witteveen et al.2008,Simon Calambokidis et al.2017).Whales from whales that had been photo-identified et al.2012,Tyson 2014,Szesciorka this DPS have been observed within along the Pacific coast of mainland 2015,Witteveen et al.2015). foraging grounds along the coasts of Mexico were sighted in highest numbers Because humpback whales only rarely California,Oregon,and Washington off the coast of California and Oregon feed on breeding grounds and during (Barlow et al.2011). (97 of 164 total matches),suggesting that migrations,the buildup of fat stores In terms of distribution across their this is their primary foraging destination while on the feeding grounds is critical foraging range,CAM DPS whales are (Calambokidis et al.2008,Barlow et al. to support migration and successful significantly more common in waters of 2011).Although whales sighted off breeding.Given the energetic costs southern California and occur in mainland Mexico also travel to the more associated with foraging activity itself, progressively decreasing numbers up northern latitude feeding areas,the MX especially at deeper depths(Goldbogen the coast towards Washington and DPS whales sighted around the et al. 2008),foraging is only expected to Southern British Columbia(Steiger et al. Revillagigedo Archipeligo had more be energetically profitable above some 1991;Rasmussen eta]. 2001; matches overall to Alaska feeding areas lower threshold for an energetic return. Calambokidis et al.2000,2008,2017). and had higher match rates to the Evidence suggests that humpback Of the humpback whales identified off northern Gulf of Alaska feeding area in whales will generally feed when they the coast of Central America(n=31)in particular(44 of 87 matches; encounter suitable concentrations of a photo-identification study conducted Calambokidis et al.2008). prey.Although humpback whales have between 1981 and 1992,84 percent Multiple studies have reported often been observed in association with, were re-sighted off California sightings of a small number of whales in or specifically targeting,dense (Calambokidis et al.2000).This both the Mexico and Hawaii breeding aggregations of prey within North distribution pattern was also confirmed areas(e.g.,n=1,Darling and McSweeney Pacific feeding regions(e.g.,Bryant et by the results of the SPLASH study, 1985;n=5,Calambokidis et al.2001; al.1981,Krieger and Wing 1986, which indicated that out of 29 between- n=17,Calambokidis et al.2008). Goldbogen et al.2008,Sigler et al.2012, season photo-identification matches of Detections of shared song composition Witteveen et al.2015),minimum prey whales from the Central America among whales from different breeding densities required to support feeding are breeding areas,26 occurred within the locations along with presence of whales not generally known. California/Oregon feeding region and 3 in mid-ocean tropical waters during the Geographical Area Occupied by the occurred within the northern breeding season also suggest some form Species Washington/southern British Columbia of contact between whales from region(Barlow et al.2011).Use of the different breeding populations(Darling The phrase"geographical area Salish Sea by this DPS may be et al.2019a and 2019b).Overall, occupied by the species,"which extremely limited,and has been interchange among breeding areas appears in the statutory definition of indicated by the single re-sighting appears to be rare,and remains poorly critical habitat,is defined by regulation reported in Calambokidis et al.(2017), understood in terms of its biological as an area that may generally be and no observations of these whales significance. delineated around species'occurrences, have been reported for waters off Alaska as determined by the Secretary(i.e., or in the Bering Sea. Western North Pacific DPS range)(50 CFR 424.02).Such areas may Mexico DPS Humpback whales of the WNP DPS include those areas used throughout all are listed as humpback whales that or part of the species'life cycle,even if The MX DPS of humpback whales is breed or winter in the area of Okinawa not used on a regular basis(e.g., defined as humpback whales that breed and the Philippines in the Kuroshio migratory corridors,seasonal habitats, or winter in the area of mainland Current(as well as unknown breeding and habitats used periodically,but not Mexico and the Revillagigedo Islands, grounds in the Western North Pacific solely by vagrant individuals)(Id.). transit Baja California,or feed in the Ocean),transit the Ogasawara area,or Below,we summarize information North Pacific Ocean,primarily off feed in the North Pacific Ocean, 54360 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules primarily in the West Bering Sea and off al.2011;Hill et al.2016,2017);and, biological features essential to the the Russian coast and the Aleutian although no humpback whales were conservation of the species,"but the Islands(50 CFR 224.101(h)).Whales sighted in this area between 2009-2013 ESA does not specifically define or from this DPS have been sighted in (Fulling et al.2011,Hill et al.2014, further describe these features.ESA- foraging areas off the coast of Russia, Ligon et al. 2013),mother-calf pairs implementing regulations at 50 CFR primarily Kamchatka,the Aleutian have been observed off Saipan in 2015 424.02(84 FR 45020;August 27,2019; Islands,as well as in the Bering Sea and (n=4 pairs),2016(n=4 pairs),and in effective September 26,2019),however, Gulf of Alaska,and off northern and 2017(n=2 pairs;Hill et al.2016,2017, define such features as follows: southern British Columbia(Figure 13; 2018).Individual photo-identification The features that occur in specific areas Darling et al.1996,Calambokidis et al. data for whales sampled off Saipan and that are essential to support the life- 2001,Barlow et al.2011).Whales from within the Mariana Archipelago in history needs of the species,including but this DPS are not thought to use the February—March 2015-2018,suggest not limited to,water characteristics,soil feeding areas off Washington,Oregon, that these whales belong to the WNP type,geological features,sites,prey, and California. DPS(Hill et al.in review).Specifically, vegetation,symbiotic species,or other Several studies have reported comparisons with existing WNP features.A feature may be a single habitat sightings of a small number of photo- humpback whale photo-identification characteristic,or a more complex identified whales in both the Asia(off catalogs showed that 11 of 41(27 combination of habitat characteristics. Japan or the Philippines)and Hawaii percent)whales within the Mariana Features may include habitat characteristics breeding areas(e.g.,n=1,Darling and Archipelago humpback whale catalog that support ephemeral or dynamic habitat Cerchio 1993;n=3,Salden et al.1999; were previously sighted in WNP conditions.Features may also be expressed n=4,Calambokidis et al.2001;n=2, p y g in terms relating to principles tr conservation breeding areas(Japan and Philippines) biology,such as patch size,distribution Calambokidis et al.2008);however,the and/or in a WNP feeding area off Russia distances,and connectivity. significance of these movement to either (Hill et al.in review).Mitochondrial assess habitat features that may the WNP DPS or the non-listed DNA analyses comparing 24 individual To To as"essential a the population of humpback whales that humpback whales sampled within the conservation"of humpback whales,the breed around Hawaii has not been Mariana Archipelago to ones sampled in CHRT discussed physical and biological established. known breeding areas throughout the features that are essential a d ort the In terms of their distribution across Pacific demonstrated significant pp the U.S.portion of their range,whales differentiation from the Philippines, life history needs and support the of the WNP DPS are most likely to be Okinawa,Hawaii,and Central America' conservation of humpback whales found off the Aleutian Islands and in (Hill et al.in review).No population within the areas they occupy within the Bering Sea(Wade et al.2016,Wade structure was demonstrated between the U.S.waters.The CHRT considered and 2017).Although very limited in number, Mariana Archipelago and Ogasawara or evaluated various features of humpback photo-identified whales from the Mexico breeding areas(Hill et al.in whale habitat,such as prey,migratory breeding areas of this DPS have also review).Comparisons of samples from corridors or conditions,and sound/ been sighted in the Kodiak and the Mariana Archipelago to known soundscape.Significant considerations, Shumagin Island regions of Alaska foraging areas demonstrated significant CHRT discussions,and resulting (Calambokidis et al.2001,Witteveen et differentiation from foraging areas in conclusions are summarized below as al.2004,Calambokidis et al.2008). Northern British Columbia,the Bering well as in the Draft Biological Report During the SPLASH study(2004-2006), Sea,California/Oregon,Southeast (NMFS 2019a). photo-identified individuals from this Alaska,and the Northern Gulf of Alaska; Prey as an Essential Feature DPS were matched to the Gulf of Alaska no population structure was (n=2),the Aleutian Islands/Bering Sea demonstrated between'the Mariana Although written for the taxonomic (n=9),and Kamchatka feeding regions Archipelago and foraging areas in species and thus now outdated,the (n=21,Barlow et al.2011). Russia,the Aleutian Islands,Western 1991,NMFS Recovery Plan for As indicated by the regulatory Gulf of Alaska,and Southern British humpback whales,identified four major definition of this DPS,the breeding Columbia/Washington(Hill et al.in recovery objectives,the first of which range of the WNP DPS is not fully review).While the available data was,"maintain and enhance habitats resolved.At the time of listing,the suggest that the Mariana Archipelago used by humpback whales currently or breeding range of this DPS was known may serve as humpback whale breeding historically"(NMFS 1991).As part of to include the waters off Okinawa and habitat,and that at least some of these that objective,we had identified the Philippines in the area of the whales likely belong to the endangered multiple recommended actions to Babuyan Islands(Barlow et al.2011, WNP DPS,additional data are needed to further the species'recovery,including Bettridge et al.2015,Wade et al.2016), fully resolve the extent to which WNP "providing adequate nutrition"and but additional breeding areas were DPS whales are relying on areas around "monitoring levels of prey abundance" suspected based on the very low match the Mariana Islands as a breeding/ (NMFS 1991).The Recovery Plan states rates for whales from feeding areas used calving habitat and the essential features that adequate nutrition is needed for the by this DPS(Calambokidis et al.2008). of the specific area(s)being used for recovery of the species,and emphasized Recent evidence suggests an additional breeding and calving.Thus,at this time, the need to maintain and optimize breeding area for the WNP DPS is the best available scientific information levels of,and access to,prey(NMFS located off the Mariana Islands. does not support including such areas 1991).The Recovery Plan also noted Humpback whale song has been within the proposed critical habitat that humpback whales require access to detected on passive acoustic recorders designation for the WNP DPS. prey over a sufficiently widespread within the Mariana Archipelago in feeding range to buffer them from local winter months(December—April; physical and Biological Features fluctuations in productivity or fisheries Fulling et al.2011,Oleson et al.2015). Essential to the Conservation of the removals(NUTS 1991).As we discuss Humpback whales have also been Species here,these considerations regarding infrequently sighted near the Mariana The statutory definition of occupied adequate nutrition and prey abundance Islands,mainly off of Saipan(Fulling et critical habitat refers to"physical or and availability are still relevant today Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54361 for the MX,CAM,and WNP DPSs of prey.Within their North Pacific feeding MX DPS have been documented to use humpback whales. areas,humpback whales have often very nearshore waters,offshore waters Whales from each of these three DPSs been observed in association with,or within the U.S.Exclusive Economic travel to U.S.coastal waters specifically specifically targeting,dense Zone(EEZ),as well as waters out to access energy-rich feeding areas,and aggregations of prey(e.g.,Bryant et al. beyond the U.S.EEZ when transiting the high degree of loyalty to specific 1981,Krieger and Wing 1986, between winter breeding areas and locations indicates the importance of Goldbogen et al.2008,Sigler et al.2012, summer feeding areas(Lagerquist et al. these feeding areas.Although humpback Witteveen et al.2015),but the precise 2008,Mate et al.2018).For MX DPS whales are generalist predators and prey range of prey densities required to whales,when complete migratory routes availability can very seasonally and support feeding are not generally known have been captured,the telemetry data spatially,substantial data indicate that and therefore cannot be described also indicate that the whales do not the humpback whales'diet is quantitatively on the basis of the best necessarily maintain a constant distance consistently dominated by euphausiid scientific data available.Thus,it is from shore,and at different points along species(of genus Euphausia, essential that the whales not only have their migration may be closer or farther Thysanoessa,Nyctiphanes,and reliable access to prey within their from shore(D.Palacios,OSU,pers. Nematoscelis)and small pelagic fishes, feeding areas,but that prey are of a comm.,June 6,2018,Mate et al.2018). such as northern anchovy(Engraulis sufficient density to support feeding and The depth or a depth range that the mordax),Pacific herring(Clupea the build-up of energy reserves. whales typically occupy while pallasii),Pacific sardine(Sardinops Given that each of three humpback undergoing their seasonal migrations is sagax),and capelin(Mallotus villosus; whale DPSs very clearly rely on the also not yet resolved. Nemoto 1957,Nemoto 1959,Klumov feeding areas while within U.S.waters, Satellite tagging of whales within the 1963,Rice Krieger and Wing 1984, the CHRT identified a prey biological feeding range of all three DPSs has Baker 1985,Kieckhefer 1992,Clapham feature that is essential to the occurred,and while DPSs of origin was et al.1997,Neilson et al.2015;See conservation of the whales.The prey not necessarily confirmed in all studies, "Diet and Feeding Behavior"and essential feature was specifically results consistently show considerable Appendix A in NMFS 2019a). defined as follows: variation in the fine-scale movement Because humpback whales only rarely patterns of the individual whales both feed on breeding grounds and during Prey species,primarily euphausiids and within and across years,suggesting that migrations,humpback whales must small pelagic schooling fishes of sufficient the whales are each making have access to adequate prey resources quality,abundance,and accessibility within ar dent decisions en inde regarding their humpback whale feeding areas to support P g g within their feeding areas to build up feeding and population growth. movements(Kennedy et al.2014,Mate their fat stores and meet the nutritional et al.2018).Thus,the CHRT concluded and energy demands associated with Migratory Corridors and Passage it is not currently.possible,on the basis individual survival,growth, Features of the best scientific data available,to reproduction,lactation,seasonal spatially identify any consistently used migrations,and other normal life Given the known migratory behaviors migratory corridors or define any functions.Essentially,while on feeding of humpback whales and the very physical,essential migratory or passage grounds,the whales must finance the significant concerns regarding conditions for whales transiting energetic costs associated with entanglement and ship strikes of between or within habitats of the three migration to breeding areas, humpback whales,especially along the DPSs. reproductive activities,as well as the U.S.West Coast,the CHRT explored the The conclusion by the CHRT energetic costs associated with their possibility of defining a migratory regarding a potential migratory corridor return migration to high-latitude feeding corridor or a passage-related essential is consistent with previous critical areas.Fat storage has been linked to. feature.The CHRT considered the best habitat designations for large,migratory reproductive efficiency in other species available data and also consulted with species such as Pacific leatherback sea of large,migratory,baleen whales biologists with expertise in satellite turtles(77 FR 4170,January 26,2012) (Lockyer 2007),and some evidence telemetry and entanglement of and North Atlantic right whales(81 FR suggests that variation in prey humpback whales.Ultimately,and for 4837,January 27,2016).In these cases, availability during summer is directly reasons summarized below,the CHRT NMFS concluded that while supporting connected to variation in annual concluded that a migratory corridor or and protecting the ability of these reproductive rates for humpback whales passage feature could not be identified, species to migrate between important in the following year(Clapham 1993). either between or within the seasonal habitats and areas was important to the Calf condition has also been habitats occupied by humpback whales conservation of the species,there was significantly correlated with female within U.S.waters. no clear migratory route or passage body condition(low calf body condition In terms of a migratory"corridor,"the feature that could be defined.We also with lower female condition)for available satellite tagging data do not note that,as part of a multi-agency humpback whales in Australia indicate a specific or consistently used mapping effort(CetSound,https.11 (Christiansen et al.2016),and,of all life route or routes for humpback whales cetsound.noaa.gov/cetsound), stages,lactating females have the traveling between their seasonal Biologically Important Areas(BIAs) highest energy demands(McMillan breeding and feeding areas in the North were identified in 2015 for cetacean 2014). Pacific(Mate et al. 2007,Lagerquist et species or populations within the U.S. Given the energetic demands of al.2008,Mate et al.2018).However, EEZ.BIAS are non-regulatory lunging and other prey capture data to resolve a specific migratory delineations that are intended to inform techniques,foraging is only expected to routes are very limited,and,in regulatory and management decisions; be profitable above some lower particular,we are unaware of any they are also not intended to be static threshold for an energetic return,and telemetry data demonstrating the delineations but can be updated as new evidence suggests that humpback seasonal migration routes or corridors data become available.While the effort whales will only feed when they for whales of the WNP DPS or the CAM to develop BIAS was not seeking to encounter suitable concentrations of DPS.Satellite tagged whales from the identify critical habitat and therefore 54362 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules does not conclusively establish which majority of the CHRT(with 2 members allow the whales to reduce acoustic areas should be considered to meet the unsure and 1 dissent)concluded that interference with natural auditory signal statutory definition of"critical habitat," the best available data currently do not processing(i.e.,acoustic masking). the CHRT considered(and we agree)the enable us to identify particular sound Adding to this overall complexity in BIA information to be very informative levels or to describe a certain understanding how noise impacts and important part of the best available soundscape feature that is essential to humpback whales is the fact that scientific information.Of the four the conservation of humpback whales. scientific understanding of humpback categories of BIAs—i.e.,reproductive Reasons for this conclusion are whale hearing remains quite limited areas,feeding areas,migratory corridors, summarized here and discussed in more (Houser et al.2001,NMFS 2018). and small and resident populations—no detail in NMFS(2019a). Given the highly diverse and spatially migratory corridor BIAS have been Humpback whales occur within a broad areas occupied by humpback identified to date for any population of wide range of soundscapes,and whales,as well as the mixed responses humpback whales in any ocean conclusions regarding particular sound- of humpback whales to noise,the CHRT (Ferguson et al.2015b,see"Specific related habitat requirements for could not define a sound-related feature Areas,"below).Although we concur humpback whales are difficult to draw. that is essential to the conservation of with the CHRT that the best scientific Anthropogenic sounds are present in all humpback whales nor identify specific data available at this time does not parts of humpback whale habitat; areas where such a feature could be support identification of a migratory however,some areas have more sources found within the occupied ranges of the feature,we acknowledge the ongoing and higher levels of anthropogenic DPSs.Ambient sound or the management concerns of ship strikes sound than others.Sightings data "soundscape"is relevant to the whales' and entanglements in fishing gear. clearly demonstrate that humpback ability to communicate and receive Humpback whales are observed whales in the North Pacific routinely sounds within the marine environment regularly in and around fishing gear and use and occupy relatively quieter areas no matter where the whales occur,and in areas of high vessel traffic,and as well as some of the noisiest areas sound or a soundscape per se does not entanglement and ship strikes continue along the U.S.West Coast(e.g.,southern appear to be associated with habitat use to pose threats to all three of these DPSs. California,Redfern et al.2017).Based or occupancy.Instead,humpback We find that these threats are of a type on the best data available,the threat of whales appear to be highly flexible in more appropriately and more directly anthropogenic noise received a"low" their ability to use and occupy habitats taken into account in the context of rating for all DPSs of humpback whales with varying soundscapes.This management of activities that pose a risk in the 2015 NMFS Status Review(out of flexibility may be in contrast to other of harm to individual animals(i.e., possible ratings of"unknown,""low," cetaceans that have very limited or "take")such as in interagency "medium,""high,"and'very high;" restricted distributions and for which consultations under section 7 of the Bettridge et al.2015).Several studies noise impacts,such as habitat ESA,rather than as threats to the have indicated that humpback whales, displacement,are likely to have underlying habitat.While ship strikes which are predicted to have a low- measureable effects on stress,foraging and entanglements will continue to be frequency hearing range of roughly 7 Hz success,survival,reproduction,etc. treated as"take"issues and managed as to 35 kHz(NMFS 2018),may even (Forney et al.2017).We note,however, threats to the animals to the extent habituate to certain low-frequency that substantial data gaps and various possible under the ESA and MMPA, noises(Sivle et al.2016,Di Clemente et shortcomings for much of the existing, should these threats or other activities al.2018,Teerlink et al.2018)—one of relevant literature(such as limited (e.g.,large-scale aquaculture),either the most ubiquitous sources of which is duration of assessments,limited independently or in combination, commercial vessels(Hildebrand 2009). geographic scale of observations, prevent or impede the whales'ability to Behavioral responses of humpback uncertainty regarding actual mechanism access prey,we would consider that as whales to noise are highly variable for observed responses,uncertainty in constituting a negative impact on the across habitats and even among the received levels of noise,and other defined prey feature,which inherently individual whales,and many factors can confounding factors associated with the includes consideration of influence whether and how noise will particular study locations)prevent a "accessibility."In other words,the affect a whale,including past exposure clear understanding of the acoustic whale's ability to move freely to access to a noise,individual noise tolerance, ecology of humpback whales. their prey while on the feeding grounds age,breeding status(with or without Furthermore,broader and longer-term is inherent in the prey essential feature calf),and current behavioral state of the consequences of noise on the fitness and as proposed. whale(e.g.,resting versus migrating; viability of humpback whales are not Sound or a Soundscape Feature Malme et al.1985,Krieger and Wing yet known(NRC 2003,Wartzok et al. 1986,Richardson et al.1995, 2003,NRC 2005,Bettridge et al.2015, The CHRT considered at length the Richardson and Wdrsig 1997,NRC Gomez et al.2016).Thus,although the importance of sound to humpback 2003,Sivle et al.2016,Wensveen et al. CHRT ultimately concluded that the whales and whether the best scientific 2017).Responses to noise are also best scientific data available do not data available supported the dependent on characteristics of the support identifying or describing a identification of a sound-related noise–e.g.,pulse or non-pulse,moving sound-related essential habitat feature at essential feature of the whales'occupied or stationary noise,novel or common, this time,improved understanding of habitats.As discussed in detail in the etc.(Richardson et al. 1997,Southall et the acoustic ecology of humpback Draft Biological Report,humpback al. 2007,Ellison et al.2012).Results of whales in the future may eventually whales generate a variety of sounds and several studies demonstrate that lead to a different conclusion. use sound for communicating and for humpback whales exhibit behavioral We agree with the CHRT's assessment sensing their environment.Ultimately, plasticity in their communication and and note that some effects of noise on although the CHRT members fully signaling strategies in response to whales are direct effects on the animals, acknowledged that the whales'sensory increases in ambient noise(e.g.,Dunlop and that NMFS already analyzes such ability to perceive and process sounds is et al.2010,Dunlop et al.2014,Fournet effects in connection with evaluation of an important aspect of their biology,the et al.2018),which in some cases may the activities that generate noise under Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54363 the MMPA and section 7 of the ESA.We consultations on particular proposed Zador and Yasumiishi 2017 and 2018, also note that if data indicate that Federal actions,we can point,for Bordeur et al. 2018,Jones et al.2018). anthropogenic noise from a particular example,to our authorities to manage Observations of whales with poor body Federal action is impacting the prey Federal fisheries under the Magnuson- condition,called"skinny whales"due such that the whales cannot capture or Stevens Fishery Conservation and to their emaciated appearance,have access prey within their feeding areas Management Act(16 U.S.C.1801,et been reported in recent years in Prince (e.g.,prey densities are decreased such seq.)to demonstrate that management of William Sound and Glacier Bay,Alaska that whales cannot feed),such an effect the prey feature is not only possible but (Straley et al. 2018;and see https.11 would constitute an impact on the is ongoing.We therefore conclude that irma.nps.gov/DataStore/DownloadFile/ proposed prey essential feature. the prey feature may require special 620535).The lowest calving rates on Special Management Considerations or management considerations or record(since 1985)have also been Protection protection.These threat categories are observed in recent years(2016-2018, summarized here and discussed in more . https.Ilinna.nps.govIDataStorel A specific area within the geographic detail in the Draft Biological Report DownloadFile/620535)in Southeast area occupied by a species may only be (NMFS 2019a). Alaska,and juvenile return rates to the designated as critical habitat if the areas area are also low(Gabriele and Neilson Climate contains one or more essential physical Change 2018).It is not yet clear whether or biological feature that"may require Multiple studies have detected nutritional stress or some other factor special management considerations or changes in the abundance,quality,and (e.g.,parasites,disease)is the cause of protection"(16 U.S.C.1532(5)(A)(ii);50 distribution of species that serve as prey the poor body condition and observed CFR 424.12(b)(iv))."Special for humpback whales in association low calving rates of these whales,but management considerations or with climate shifts,particularly with some researchers hypothesize that protection"is defined as methods or ocean warming.The nature and extent reduced prey availability and/or quality procedures useful in protecting the of impacts have varied across study driven by the marine heat wave of physical or biological features essential areas and species;however,in many 2013-2016 and other climate factors is to the conservation of listed species(50 cases,ocean warming has led to the likely cause(Gabriele and Neilson CFR 424.02).Courts have made clear negative impacts on humpback whale 2018). that the"may require"standard requires prey species.For instance,in the that NMFS determine that special California Current Ecosystem(CCE), Direct Harvest management considerations or during the anomalous warming of the Within the areas under consideration protection of the features might be upper ocean and weak upwelling from for designation,a few fisheries directly required either now or in the future,but 2013-2016,often referred to as the target prey species that form a major such considerations or protection need "blob"or the"warm blob,"sharp part of the humpback whale diet(e.g., not be immediately required. See Cape decreases in euphausiid biomass were Pacific herring,Pacific sardine,northern Hatteras Access Pres.Alliance v. U.S. observed,as evidenced by declines in anchovy),and other fisheries can Dept.of Interior,344 F.Supp.2d 108, both abundance and body length incidentally capture important prey 123-24(D.D.C. 2004);Home Builders (Harvey et al.2017,Peterson et al. species.This creates the potential for Assn of N.California v. U.S.Fish and 2017).Comparisons of samples direct competition between humpback Wildlife Serv.,268 F.Supp.2d 1197, collected in the Northern California whales and certain fisheries(Trites et al. 1218(E.D.Cal.2003).The relevant Current region during years of cool 1997).In fact,current management of management need may be"in the future (2011,2012),warm(2000,2002),and key forage species like Pacific sardine based on possibility."See Bear Valley intermediate(2015,2016)conditions, and northern anchovy under their Mut. Water Co.v.Salazar,No.SACV also indicated that body condition of associated Federal fishery management 11-01263 JVS,2012 WL 5353353,at northern anchovy,Pacific herring,and plan includes a specific objective of *25(C.D.Cal.Oct.17,2012.See also Pacific sardine were better in cool years providing adequate forage for dependent Center for Biological Diversity v.Norton, compared to warm years,and species,like whales and other higher 240 F.Supp.2d 1090,1098-99(D.Ariz. significantly so for anchovy and herring trophic level species(PFMC 2019). 2003)(noting that the"may require" (Brodeur et al.2018).During the Humpback whales target large,dense phrase can be rephrased and understood anomalous warm blob event,sardine schools of prey,and the best available as"can require"or"possibly requires"). spawned earlier and appeared farther data support the conclusion that,though Four broad categories of actions,or north within the Northern California not yet quantifiable,there is a density threats,were identified by the CHRT as Current than in previous years(Ruth et threshold below which humpback having the potential to negatively al.2018).Shifts in prey abundance and whales will not feed or cannot feed impact the essential prey feature and the distributions may lead to corresponding effectively due to trade-offs with the ability of feeding areas to support the shifts in marine mammal distributions energetic demands of feeding. conservation of listed humpback whales (King et al.2011).In Monterey Bay, Consequences of prey depletion as a in the North Pacific:Climate change, California,such a response was reported result of fishing activities are also likely direct harvest of the prey by fisheries, for blue,fin,and humpback whales,the to be exacerbated in years when marine pollution,and underwater noise. densities of which all declined with El alternative humpback whale prey Each of these threats could Nino-associated declines in species are naturally low in abundance independently or in combination result euphausiids(Benson et al.2002). due to climate or environmental factors. in the need for special management or Consequences of climate-driven and Sufficient depletion of prey on the protections of the essential prey feature. climate-related reductions in the quality feeding grounds can lead to nutritional The"may require"standard is met or and abundance of prey species can stress,which in turn can lead to exceeded with respect to management of cascade upwardly through ecosystems decreases in body condition,size, the essential prey feature.Although we by decreasing energy transfers to higher reproductive output,and survival(as in do not speculate as to what specific trophic levels and potentially even Steller sea lions,Trites and Donnelly conservation measures might be causing reproductive failures and die- 2003;gray whales,Bradford et al.2012; required in the future through section 7 offs of some predators(Coyle et al.2011, right whales,Seyboth et al.2016).For 54364 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules humpback whales in the Atlantic from health and fitness consequences to Hobron and Akutan,Alaska,where they Ocean,there is some evidence that mortality and reductions in abundance were once heavily exploited(Zerbini et variation in prey availability during the (Popper and Hastings 2009,Kight and al.2006).The NMFS 2017 Marine summer may be connected to variation Swaddle 2011,Radford et a1.2014).For Mammal Stock Assessments for the in annual reproductive rates in the instance,there is evidence that marine Western and Central North Pacific following year(Clapham 1993). seismic surveys can result in behavioral regions conclude that humpback whales Marine Pollution effects as well as significant injury and are currently found throughout their mortality of fishes and zooplankton historical feeding range(Muto et al. Although pollution was not identified (McCauley et al.2017,Carroll et al. 2018).Because ESA-listed humpback as a significant threat to any of the 2017);however,such impacts may be whales are considered to occupy their North Pacific DPSs of humpback whales relatively short in duration and spatially entire historical range that falls within in the recent status review(Bettridge et limited(to within the survey footprint U.S.jurisdiction,we find that there are al. 2015),consumption of contaminated and extending out—15 km)and may be no unoccupied areas that are essential to or low quality prey may negatively minimized by ocean circulation their recovery and further conclude that affect the health,population growth, (Richardson et al.2017).Available a designation limited to geographical and ultimately the recovery of listed research also suggests that other noises areas occupied by humpback whales humpback whales.Humpback whales in the marine environment from sources would be adequate to conserve the three are susceptible to bioaccumulation of such as impact pile driving and listed DPSs. lipophilic contaminants because they underwater explosives may have have long lifespans and large fat negative consequences on certain Specific Areas Containing the Essential deposits in their tissues.Some species of fish and invertebrates such as Feature contaminants may also be passed to trauma or tissue damage,mortality(of To determine what areas qualify as young whales during gestation and various life stages),stress,disruptions of critical habitat within the geographical lactation(as in fin whales,Aguilar and schooling,or reduced foraging success area occupied by the species,we are Borrell 1994).In comparisons of (Popper and Hastings 2009,Weilgart required to identify"specific areas"that samples collected from Northern 2017).Whether and how specific contain the physical or biological Hemisphere feeding grounds,Elfes et al. humpback whale prey are currently features essential to the conservation of (2010)reported that concentrations of being impacted by various noise sources the species(50 CFR 424.12(b)(1)(iii)). contaminants within humpback whale and levels is not yet clear,but the Delineation of the specific areas is done blubber were high in southern available information is sufficient to "at a scale determined by the Secretary California and in the Northern Gulf of indicate that ocean noise poses a [of Commerce]to be appropriate"(50 Maine.Marine pollution in the form of management concern for many fish and CFR 424.12(b)(1)).Regulations at 50 plastics is also a concern for marine invertebrate species such that they may CFR 424.12(c)also require that each systems worldwide,and microplastics require management considerations or critical habitat area be shown on a map. in particular have entered into marine protection(Hawkins and Popper 2017). In determining the scale and systems and food webs.Microplastics boundaries for the specific areas,the could be consumed via contaminated Unoccupied Areas CHRT considered,among other things, prey or ingested directly by whales Section 3(5)(A)(ii)of the ESA the scales at which biological data are when microplastics co-occur in the authorizes the designation of specific available and the availability of water column with target prey. areas outside the geographical area standardized geographical data Marine pollution may also lead to occupied by the species if those areas necessary to map boundaries.Because secondary impacts on the whales' are determined to be essential for the the ESA implementing regulations allow habitat.For instance,pollution from conservation of the species.Recently for discretion in determining the untreated industrial and domestic revised regulations at 50 CFR appropriate scale at which specific areas wastewater may be contributing to the 424.12(b)(2),similar to the regulations are drawn(50 CFR 424.12(b)(1)),we are occurrences of algal blooms.During that were in effect prior to 2016,require not required to,nor was it possible to, some algal blooms,toxins(e.g., that we first evaluate areas occupied by determine that each square inch,acre,or saxitoxin,domoic acid)can become the species and only consider even square mile independently meets increasingly concentrated as they move unoccupied areas to be essential where the definition of"critical habitat."A up the food chain.Although much of a critical habitat designation limited to main goal in determining and mapping' the humpback whales'prey are lower geographical areas occupied would be the boundaries of the specific areas is to trophic-level species,several unusual inadequate to ensure the conservation of provide a clear description and" mortality events have been documented the species(84 FR 45020;August 27, documentation of the areas containing in the Atlantic Ocean,indicating that 2019;effective September 26,2019). the identified essential feature.This is such toxins can pose a concern for Within the North Pacific Ocean, ultimately crucial to ensuring that humpback whales.During one event in humpback whales historically ranged Federal action agencies are able to which 16 humpback whale carcasses throughout all coastal areas of Asia and determine whether their particular were found,some of the humpback North America.Although humpback actions may affect the critical habitat. whales had saxitoxin poisoning and/or whale abundances were greatly reduced Another goal of this effort was to contained domoic acid(Gulland 2006). throughout their range by commercial delineate specific areas in a manner that In another event,14 humpback whales whaling(Rice 1978,Rice and Wolman would facilitate subsequent analyses for were determined to have died as a result 1982,Johnson and Wolman 1984),they each humpback whale DPS under of consuming Atlantic mackerel still occur in areas where they were section 4(b)(2)of the ESA(e.g., containing saxitoxin(Geraci et al.1989). once targeted by commercial whaling consideration of economic impacts). See Ocean Noise operations,or to some degree have 16 U.S.C.1533(b)(2). returned to areas where they had not Ultimately,based on a review of the Lastly,effects of noise on fish and been observed for many years.For best available data,the CHRT delineated zooplankton species,which is a topic of instance,humpback whales are common 19 specific areas along the coasts of increasing research attention,may range in the former whaling grounds off Port Alaska,Washington,Oregon,and Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54365 California that meet the definition of "critical habitat"because the best whales in these areas,humpback whale critical habitat for one or more of the available scientific data indicate that the sightings data,and/or presence of three DPSs of whales(Figure 1).Each of essential feature is present,as evidenced humpback whale prey. these areas meets the definition of by documented feeding behavior of the BILLING CODE 3510-22-P 1700W 50°W 150`W 14M 13 T W i�7T z _ 0 Z 1 -: Z RR.W.Economic Zones(EEZs) , N Nautical Miles t (t 160 320 64.0 14W 150°W 14U°W 14W 12c`vd Figure 1.Specific areas(Units 1-19)occupied by one or more of the listed humpback whales DPSs.Units 1-9 are occupied by the WNP DPS;Units 1-19 are occupied by the MX DPSs;and Units 11-19 are occupied by the CAM DPS.. 54366 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules BILLING CODE 3510-22-C models were made for the entire U.S. Washington,Oregon,and California to In delineating the specific areas,the West Coast from the coast to 300 nmi delineate the shoreward boundary for CHRT applied identified datasets in a offshore(the study area was critical habitat units in each of those systematic way across each region and approximately 1,141,800 km2). respective regions.Based on the depth- DPS to ensure consistency in how Predictions from the winter/spring frequency histograms for Alaska,the 1- boundaries were determined.The models were made in a subset of this m depth contour(relative to mean lower approach and data used by the CHRT region:south of 381 N and east of 1250 low water(MLLW))or a BIA boundary, are summarized here;further detail is W(the study areas was approximately whichever was closer to shore,was provided in the Draft Biological Report 385,460 km2.)The Becker et al.2016 selected as the nearshore boundary for (NMFS 2019a).First,the CHRT and 2017 models summarize expected the habitat units in Alaska.Humpback considered the humpback whale BIAS humpback whale distributions in the whales in Alaska have frequently been and decided that the BIAs would remain CCE over a long time-period and observed feeding extremely close to intact within a given specific area incorporate oceanographic variability shore during high tide(J.Moran,AFSC, unless there was a compelling reason to observed during the surveys. pers.comm.,May 23,2018),which change or divide it.As noted earlier,the The Becker et al.(2016 and 2017) comports with the CHRT's selection of humpback whale BIAS have all been models predicted humpback whale the 1-m depth contour(or isobath). identified as"feeding"BIAS,which are abundance in approximately 10 by 10 Based on the depth frequency defined as follows: km grid cells.Cells containing the histograms for the U.S.West Coast,the Areas and times within which aggregations highest 90 percent of the predicted CHRT selected the 50-m isobaths as the of a particular species preferentially feed. study area abundance were used to help shoreward boundary for each specific These either may be persistent in space and delineate the offshore extent of the area unless it clipped out a portion of time or associated with ephemeral features specific areas.(All or 100 percent of the a BIA.Cases where this occurred(i.e., that are less predictable but are located predicted abundance had a distribution Units 16 and 17)and how it was within a larger area that can be delineated (Ferguson at al.2015b). that extended out to aneven beyond addressed are discussed in more detail the U.S.EEZ.)The Becker at al.(2016 in the descriptions of each specific area. As discussed in Van Parijs(2015)and and 2017)predictions also contributed In the following sections,we provide Ferguson et al.(2015b),BIAS were to delineating the north/south additional details regarding the developed for cetacean species within boundaries between the specific areas. boundaries of each of the 19 specific all regions of the United States through As no such coast-wide habitat model is areas and briefly describe humpback- rigorous reviews of survey data and available for Alaska,the CHRT relied on whales'use of the specific area.We note habitat models by multiple teams of published surveys and available that these delineations of specific units scientists.BIAS were identified to sightings data.Where available, of habitat do not necessarily represent inform regulatory,management,and humpback whale sightings data were discrete feeding aggregations or conservation decision-making by mapped and overlaid with the BIAS to populations of humpback whales— NOAA,other Federal agencies,and the inform selection of boundaries between individual whales generally move public.Although the BIAs are non- specific areas. across many of these boundaries.More regulatory,non-binding,and were not For applicable habitat units,the detailed information regarding whale intended to be synonymous with critical CHRT also considered the polygons and prey distributions is provided in the habitat under the ESA,they were derived from ARS data from satellite- Draft Biological Report(NMFS 2019a). regarded by the CHRT as an important tagged whales(Mate et al.2018).These source of the best available data and polygons provided the CHRT'with Unit 1 Bristol Bay very informative to their review of areas additional information and support This unit is bounded along the that meet the definition of critical regarding where humpback whales feed northern edge by a line extending due habitat for humpback whales.The and over what size area they may feed. west from Egegik(at 58014'N,157028' CHRT was also aware that humpback When considering these data,the CHRT W)to encompass the humpback whale whale BIAS for Alaska and for the U.S. only used polygons representing the BIA within Bristol Bay.The boundary West Coast were developed by different overlay of two or more individual then extends southwest and then teams and were supported by very whales(i.e.,data representing southward tangentially along the BIA to different types and levels of data,and movements of just a single whale were the coastline at Moffet Point(55°27'N, that,therefore,the BIAS for these two not determinative of specific area 162035'W).The nearshore boundary of major regions were not entirely boundaries). this unit follows the 1-m isobath consistent in terms of how they were To determine where to draw (relative to MLLW).This unit covers ultimately drawn. nearshore boundaries for the specific 19,279 nmi2 and includes waters off For U.S.West Coast areas areas,the CHRT created depth- Bristol Bay and Lake and Peninsula (Washington,Oregon,and California), frequency histograms using sightings Boroughs,and a small portion of the CHRT applied the results of a data from multiple studies(e.g., Aleutians East Borough.. habitat model for the CCE that Calambokidis at al.2008,Zerbini et al. Unit 1 boundaries were drawn based incorporated 275 humpback whale 2006,Baker at al. 2016).Collectively, largely on the location of a humpback sightings from seven systematic line- the sightings datasets represent results whale feeding BIA,which was in turn transect cetacean surveys conducted in of different types of sampling efforts identified largely based on results of summer and fall(July–December) (e.g.,targeted small boat surveys, systematic surveys reported in Clapham between 1991-2009(Becker et al. 2016) systematic line-transect surveys), at al.2012,Friday et al.2012,and and a habitat model for southern different time-periods(2001-20031 Friday et al.2013,indicating high California(i.e.,Units 16-19)that 2004,2005),and different study densities of humpback whales in this incorporated 53 humpback whale locations.Rather than select any one area(see Ferguson et al.2015c). sighting from 20 surveys conducted particular data set or study over another, However,Unit 1 extends farther into between 2005 and 2015 during winter the CHRT generated depth frequency Bristol Bay relative to the BIA to reflect and spring(January-April,Becker at al. histograms from all these sightings in sightings from 1999 aerial surveys of 2017).Predictions from the summer/fall Alaska and for all sightings off of Bristol Bay(Friday et al.2012)and Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54367 sightings from the 2017 IWC Pacific the BIA and extends eastward to 164°25' follows the 1-m isobath(rblative to Ocean Whale and Ecosystem Research W.The nearshore boundary of this unit MLLW).This unit is mainly within the Program(POWER)survey(Matsuoka et is the 1-m isobath(relative to MLLW). Aleutians East Borough but includes a al.2018)indicating that humpback This unit includes waters off the small portion of the Lake and Peninsula whales may also be common in these Aleutian East and Aleutian West Borough.Unit 3 covers 13,162 nmi2 of waters.The southern,nearshore Boroughs.Unit 2 covers 28,829 nmi2 of marine habitat. boundary was drawn to accommodate marine habitat. This area was drawn from the the nearshore areas(around the 50 m This area encompasses a humpback boundary of Unit 2 eastward to isobath)indicated by sightings reported whale feeding BIA,which was drawn to encompass an identified BIA(Ferguson in Friday et al.(2013).Unit 1 does not include high density sightings of et al.2015a).This BIA is within the extend into the intertidal portions of humpback whales as reported in Zerbini 1,000-m isobath,which was selected as northern Bristol Bay based on the lack et al.2006,Clapham et al.2012,Friday the offshore boundary for this unit. of detections of humpbacks in the small et al.2012,and Friday et al.2013(See Surveys conducted within this area bays along the coast of northern Bristol Ferguson et al.2015c).Telemetry and indicate that feeding aggregations of Bay(Friday et al.2012,Matsuoka et al. sightings data indicate that humpback humpback whales consistently occur in 2018,and J.Moran,AFSC,pers.comm. whales use the coastal waters to the coastal areas south of these islands and May 23,2018).Humpback whale north and south of the islands as well around the Shumagin Islands(Waite et sightings collected within North Pacific as within the passes(Zerbini et al.2006, al.1999,Witteveen et al.2004,Zerbini right whale critical habitat during Sigler et al.2012,Kennedy et al.2014). et al.2006,Wynne and Witteveen 2013), systematic vessel and aerial surveys The western edge of the Unit 2, where the whales have been observed conducted by the National Marine however,does not include the small targeting dense schools of krill(Wynne Mammal Laboratory(NMML)were portion of the BIA that extends west of and Witteveen 2013).During the considered but were not determinative Samalga Pass.The reason why the University of Alaska's Gulf Apex of the area's boundaries given the high boundary was selected for the critical Predator-Prey(GAP)Study surveys intensity of effort represented by those habitat unit is that this pass coincides within this area,conducted across 14 surveys and the resulting significant with an abrupt oceanographic break, feeding seasons,654 individual upwards bias in the humpback whale and the frequency of humpback whale humpback whales were identified out of sightings documented in this area. sightings have been very low or absent 1,437 total sightings.Analyses of these Surveys conducted during 2004 and west of Samalga Pass(Zerbini et al, sightings indicate a fairly high degree of 2006-2010 within the eastern Bering 2006;P.Wade,pers.comm.,May 23, site fidelity to this area,with an average Sea and that overlapped with a portion 2018).The northwestern edge of the annual rate of return of 37 percent(SD of Unit 1,indicated widespread and Unit 2 also extends slightly north of the =11.8%;Witteveen and Wynne 2016a). persistent concentrations of euphausiids BIA,because available sightings data Surveys conducted in 1985 indicated in the survey area(Sigler et al.2012). indicate humpback whales use waters that humpback whales were widely Stomach content analyses and north of Unimak Pass and along the distributed throughout this area but corresponding fish distributions middle and outer Bering Sea shelf and were typically observed near island indicate humpback whales may also slope(Calambokidis et al.2008,Friday complexes,the shelf break,and banks, feed on various species of schooling et al.2012,Friday et al.2013,Matsuoka such as Sanak Bank,Shumagin Bank, fish,such as capelin and sand lance,in et al.2018).Surveys conducted during and an additional unnamed bank,with this region(Nemoto 1959,Ormseth 2004 and2006-2010 within the eastern repeated observations of whales at both 2015,Andrews et W.2016). Bering Sea indicated widespread and Shumagin Bank and the unnamed bank Photo-identification data are not persistent concentrations of euphausiids (Brueggeman et al.1987). available to validate occurrences of in this area(Sigler et al.2012),and Photo-identification data indicate this particular DPSs within this unit; general additive models using area is a destination for whales from the however,the available data suggest this environmental datasets from summers HI,MX,and WNP DPSs(Witteveen et area is a destination for whales from the 2008-2010 for the Eastern Bering Sea al.2004,Calambokidis et al.2008). Hawaii(HI,which are not listed),WNP, also predict relatively high levels of Unit 4—Central Peninsula Area and MX DPSs(Baker et al.2013).Five euphausiid biomass occurring within marked whales are also documented to this area(Zerbini et al.2016).In The western edge of this area extends have moved between this general region addition to targeting euphausiids, along 158°39'out to a line and the WNP breeding grounds(Omura humpback whales also consume corresponding to the 1,000-m isobath, and Ohsumi 1964). multiple fish species occurring in this which marks the offshore boundary.The Unit 2-Aleutian Island Area region such as capelin,sand lance,Atka eastern boundary is at 154054'W,just mackerel,and walleye pollock(Nemoto east of the Shumagin Islands.The This unit includes waters along the 1959,Ormseth 2015,2017). nearshore boundary of this unit follows northern side of Unimak Island,waters Photo-identification data indicate this the 1-m isobath(relative to MLLW). around Umnak and Unalaska Islands, area is a destination for whales from the This unit is within the Lake and and waters within Umnak and Unimak HI,WNP,and MX DPSs(Calambokidis Peninsula Borough.Unit 4 covers Pass.At its eastern edge,the northern eta].2008). 15,026 nmi2 of marine habitat. boundary of this area extends from This area captures the waters between 55°41N/162°41'W,tangentially along Unit 3—Shumagin Islands Area two identified feeding BIAS.Survey data the northern edge of a humpback whale This area extends from 164025'W indicate that humpback whales are BIA west out to 169°30'W.The western eastward to 158039'W and encompasses consistently found in these waters boundary extends southward through the feeding BIA around the Shumagin (Brueggeman et al.1989,Zerbini et al. Samalga Pass to the BIA boundary on Islands.The area is bounded on its 2006)and at least occasionally transit the south side of the islands,which southern(offshore)edge by a line drawn between the Shumagin Island area and corresponds closely to a line drawn along the 1,000-m isobath,which also Kodiak Island(5 of 171 whales; along the 2,000-m isobath.This runs along the southern edge of the BIA. Witteveen et al.2004).Results of southern boundary follows the edge of The nearshore boundary of this unit systematic surveys conducted in the 54368 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules summers of 2001,2002,and 2003, Cook Inlet and Prince William Sound the Kodiak Island area(Unit 5)have indicate that fin whales occurred in (Waite et a1.1999,Witteveen et al. been observed(Witteveen et al.2011), high densities in Unit 4,and in 2011).Waite et al.(1999)estimated that indicating that the whales feeding in particular around the Semidi Islands, only 3 to 6 percent of the Kodiak whales this area do not comprise a completely relative to the adjacent areas(Units 3 also visit Prince William Sound,and the distinct feeding aggregation.Based on and 5);while humpback whales had the two areas are viewed as supporting stable isotope analyses of pooled skin opposite distribution pattern(Zerbini et largely separate feeding groups(Waite et samples collected from whales found al.2006).Brueggeman et al.(1989) al.1999,Witteveen eta].2011). during the feeding season(May— report a fairly similar pattern based on Humpback whales were also historically December)in lower Cook Inlet,Kenai their aerial and-shipboard surveys common in this area and were taken in Fjords,and Prince William Sound conducted in 1985 and 1987, a commercial whale fishery that region,h4mpback whales in this area respectively.Although these two whale operated out of Port Hobron,off the appear to primarily consume fish species are often sympatric and have southeastern coast of Kodiak Island species(Witteveen et al.2011). overlapping diets,previous surveys and (Witteveen et al.2007).While the Photo-identification data demonstrate isotope analyses have provided whales occur throughout this area,they that HI and MX DPS whales occur in evidence of trophic niche partitioning appear to be most abundant off the this area(Calambokidis et al.2008). between fin and humpback whales,with northeastern and southern coastlines, WNP DPS whales have not been photo- the latter being more piscivorous and are less frequently observed within identified in this specific area;however, (Wynne and Witteveen 2013, Shelikof Strait(Zerbini et al.2006). their presence in this area has been Gavrilchuk et al.2014,Witteveen et al. Relative proportions of prey items inferred based on available data 2015,Witteveen et al.2016). within the humpback diet have been indicating that humpback whales from Photo-identification data demonstrate shown to vary between years,but key WNP wintering areas occur in this that this area is a destination for whales prey targeted by the whales within this general region of Alaska(NMFS 2019a, from the HI and MX DPSs unit include krill,capelin,juvenile Table C8). (Calambokidis et al.2008).WNP DPSs pollock,sand lance(Witteveen et al. Unit 7—Kenai Peninsula Area whales have not been photo-identified 2012,Wright et al.2016). in this area but their presence has been Photo-identification data demonstrate This area extends eastward from inferred based on documented this area is a destination for whales from 150°40'W at the boundary with Unit 5 occurrences in the adjacent units(i.e., the HI,MX,and WNP DPSs (Kodiak Island Area)to 148031'W,and Units 3 and 5). (Calambokidis et al.2008). extends offshore to a boundary marked by the 1,000-m isobath.The nearshore Unit 5-Kodiak Island Area Unit 6—Gook Inlet boundary of this unit is the 1-m isobath This area includes the waters around This area extends from the mouth of (relative to MLLW).This unit measures Kodiak Island and the Barren Islands. Cook Inlet where it is bounded by a line 8,496 nmi2 and is within the Kenai The western boundary runs southward that extends from Cape Douglas across Peninsula Borough. along 154054'W to a line that follows the inlet to Cape Adam.The northern This area captures the region the 1,000-m isobath,and then extends boundary is the 60°20'N latitude line, separating the Kodiak Island and Prince eastward to a boundary at 150040'W. just south of Kalgin Island.The William Sound BIAS and includes The area also extends northward to the nearshore boundary of this unit is the feeding areas around the Kenai Fjords. mouth of Cook Inlet where it is bounded 1-m isobath(relative to MLLW).This Estimated densities of humpback by a line that extends from Cape area borders the Kenai Peninsula whales within the shelf portion of the Douglas across the inlet to Cape Adam. Borough.This unit covers 3,366 nmi2 of Navy Temporary Maritime Activities The nearshore boundary of this unit marine habitat. Area,which overlaps with a portion of follows the 1-m isobath(relative to The southern boundary of this area Unit 7,has ranged from 0.0930 in 2013 MLLW).This unit is within the Kodiak approximates the ecological shift (CV=0.74)to 0.0050 in 2015(CV= Island Borough but includes a small between the Kodiak Island Area(Unit 5) 0.32,Rone et al.2017).Based on results portion of the Kenai Peninsula Borough. and Cook Inlet.Unit 6 does not include reported in Witteveen et al. 2011,site Unit 5 covers 17,420 nm12 of marine the upper portions of Cook Inlet, fidelity of humpback whales to this area habitat. because humpback sightings are rare can be inferred to be fairly high.Inter- This area was drawn to capture the north of Kalgin Island despite extensive, annual movement of whales has also Kodiak Island BIA,as well as routine aerial surveys of this area for been observed between this area and the documented aggregations of humpback Cook Inlet beluga whales(K.Sheldon, coastal waters around Kodiak Island whales around the Barren Islands and in NMML,pers.comm.,August 2,2018). (Witteveen et al.2011).As noted waters to the east of Kodiak(Rice and North of the Forelands,the inlet previously for Unit 6,stable isotope Wolman 1982,Zerbini et al.2006, becomes shallow and highly turbid due analyses of pooled skin samples Ferguson et al.2015a,Rone et al.2017). to deposition of glacial silt.With its collected from whales found during the Waters around Kodiak Islands have extreme tidal range,mudflats,and low feeding season(May—December)in been surveyed extensively since 1999 as visibility,the upper inlet does not Kenai Fjords,lower Cook Inlet,and part of the GAP study.Over 17 years of provide suitable feeding habitat for Prince William Sound region,suggest GAP surveys in this area,1,187 unique humpback whales despite the presence that humpback whales in this area humpback whales were identified in the of prey species(e.g.,eulachon). primarily consume fish species Kodiak region(out of 2,173 total Humpback whales are routinely sighted (Witteveen et al.2011). sightings),with an average annual rate in the lower portions of the inlet Photo-identification data demonstrate of return of 35 percent(SD=15.2 (NMML,unpubl.data,1994-2018),but this area is a destination for whales from percent,Witteveen and Wynn 2016), the density of whales and level of site the HI and MX DPSs(Calambokidis et indicating a high degree of site fidelity fidelity of humpback whales to this al.2008).Satellite telemetry data also to this area.Some inter-annual feeding area has not been established. indicate this is a destination for MX movement of whales has also been Inter-annual movements of humpback DPS whales.A calf tagged off the observed between this area and lower whales between lower Cook Inlet and Revillagigedo Islands in 2003,travelled Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54369 to the Gulf of Alaska with its mother percent of the Kodiak whales also visit DPS in this specific area;however, and spent 30 days feeding on Portlock Prince William Sound,and the two presence of these whales has been Bank(located largely within Unit 7) areas are thought to support largely assumed based on available data until tracking ceased(Lagerquist et al. separate feeding groups(Waite et al. suggesting that humpback whales from 2008).WNP DPS whales have not been 1999,Witteveen et al.2011). WNP wintering areas could occur in this photo-identified in this specific area, Photo-identification data confirm this general region(NMFS 2019a,Table C8). but presence of WNP DPS whales has area is a destination for whales from the Given the increased distance of this unit been assumed based on available data HI and MX DPSs(Baker et al.1986, from other confirmed sighting of whales indicating that humpback whales from Calambokidis et al.2008).WNP DPS from the WNP DPS,there is greater WNP wintering areas occur within the whales have not been photo-identified uncertainty regarding whether WNP Gulf of Alaska(NMFS 2019a,Table C8). in this specific area;however,presence DPS whales occur in this unit. Unit 8—Prince William Sound Area has been assumed based on available Unit 10—Southeastern Alaska data indicating that humpback whales This area extends from 148031'W from WNP wintering areas occur in the This area extends from 139024'W, eastward to 145'27'W,and extends Gulf of Alaska(NMFS 2019a,Table C8). southeastward to the U.S.border with offshore to a boundary drawn along the Unit 9—Northeastern Gulf of Alaska Canada and encompasses a humpback 1;000-m isobath.The nearshore whale BIA.The area also extends boundary of this unit is the 1-m isobath This area extends from 145027'W to offshore to a boundary drawn along the (relative to MLLW).This unit is within 139'24'W and to an offshore drawn 2,000-m isobath,which corresponds to the Valdez-Cordova Borough and covers along the 1,000-m isobath.The the offshore extent of the BIA.The 8,166 nmi2 of marine habitat. nearshore boundary of this unit is the 1- nearshore boundary of this unit also This area was drawn to encompass m isobath(relative to MLLW).This unit corresponds to the BIA boundary.This the Prince William Sound feeding BIA mainly borders Yakutat Borough,but unit borders unorganized boroughs,but (Ferguson et al. 2015a),which was also borders a small portion of Valdez- includes water off of Skagway-Hoonah- identified based on studies conducted Cordova.Unit 9 covers 9,065 nmi2 of Angoon,Haines,Juneau,Sitka, mainly in the western and southern marine habitat. Petersburg,Wrangell,and Ketchikan portions of the sound(e.g.,von Ziegesar This area was drawn to capture a Gateway.Unit 10 covers 22,152 nmi2 of et al.2001,Rice et al.2011).The BIA section of the Gulf of Alaska between marine habitat. encompasses the portion of this unit two feeding BIAS(in Units 8 and 10). This area was drawn to encompass where humpback whale densities have Surveys within this unit have been well established feeding grounds in been documented to be high and where relatively limited.Surveys conducted in southeast Alaska and an identified feeding aggregations have been June–August of 1980 by Rice and feeding BIA(Andrews 1909,Baker et al. consistently observed.Survey effort has Wolman(1982)indicated that 1985,Straley 1990,Dahlheim et al. been very limited in the areas outside of humpback whales were sparsely 2009,Ferguson et al.2015a).Humpback the BIA,especially the shelf waters. distributed in the Gulf of Alaska whales occur year-round in this unit, This unit was drawn to include waters (populations were still depleted),but with highest densities occurring in beyond the boundaries of the BIA based they noted minor aggregations of summer and fall(Baker et al.1985, on the additional sightings reported in humpback whales in Yakutat Bay(13 1986).Periods of occupancy of over 100 Witteveen eta].(2011,and as detected whales).More recently,21 groups(33 days have been reported for a significant during SPLASH surveys)and individuals)of humpbacks were sighted portion of the whales using this area observations reported by von Ziegesar in this area during an IWC-POWER (Baker et al.1985).Based on sighting (2013)indicating that humpback whales survey in July/August of 2012 data for summer months during 1985– move between the sound and the fiords (Matsuoka et al.2013).Sightings of 2014 in Glacier Bay and Icy Strait,over along the coast.Minor aggregations of humpback whales were also recorded in 60 percent of the adult whales remained humpback whales(8-13 whales)were this area by the NMFS Southwest in this area to feed for more than 20 also observed near Middleton Island Fisheries Science Center(SWFSC)as days,and average residency time for during systematic surveys conducted in part of the SPLASH surveys in 2004 and whales seen on more than 1 day within summer 1980 in the Gulf of Alaska(Rice 2005(Calambokidis et al.2008;see also a season was 67 days(SD=38.3; and Wolman 1982).Humpback whales Witteveen et al.2011).Based on limited Gabriele et al.2017).Photo- occur year-round in Prince William sampling;results of stable isotope identification data collected in Sound,but densities are greatest during analyses suggest that whales in this area Southeast Alaska from 1979 to 1983 summer and fall,and decline in late have a mixed diet of fish and indicate a high degree of site fidelity to December to early January(Straley et al. zooplankton(Witteveen et al.2011). this area,with 47.2 percent of whales 2018).Presence of humpback whales in Photo-identification data confirm this being sighted in more than one year the sound is strongly associated with area is a destination for whales from the (154 whales out of 326 unique the seasonal formation of Pacific herring non-listed HI DPS(Baker et al.1986, individuals;Baker et al.1986).Sightings aggregations(Rice et al.2011,Straley et Calambokidis et al.2008;and SPLASH histories for three female humpback al.2018,Morag and Straley 2018). data courtesy of C.Gabriele,NPS). whales in particular indicate these Results of surveys conducted during Satellite telemetry data indicate this whales returned in each of 12 or 13 fall/winter of 2007-2009 indicated that area is also a destination for MX DPS years during 1977-1992(Straley et al. a small percentage of photo-identified whales.A calf tagged off Socorro Island 1994).Evaluation of sighting histories in whales(under 2 percent,n=4) (in Revillagigedo Archipelago)in 2003 Glacier Bay and portions of Icy Strait overwintered in the sound(Rice et al. travelled with its mother to this area from 1985 to 2013 also indicate a high 2011).Inter-annual movements of (Lagerquist et al.2008).(The mother/ degree of site fidelity with 63 percent whales have been observed between the calf pair remained in this area for only (244 of 386 total whales identified)of sound and the coastal waters around about 4 days before travelling to other non-calves returning to the survey area Kodiak Island(Waite et al.1999, areas of Alaska(Lagerquist et al.2008).) in more than 1-year,17 percent(n=66) Witteveen et al.2011).However,Waite There are no reported sightings of returning every year,and an additional et al.(1999)estimated that only 3 to 6 photo-identified whales of the WNP 10 percent(n=39)returning in all but 54370 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 1 year(Gabriele et al.2017).Humpback reporting rates from areas within the model predictions begin to shift farther whales are known to feed on krill, Salish Sea have likely resulted in a offshore. herring,capelin,sand lance, biased understanding of humpback Photo-identification data are not myctophids,and juvenile pollock whale abundance in these waters; available to validate occurrences of within Southeast Alaska,but dominant however,hundreds of whales appear to particular DPSs within this unit; prey within the diet vary among the be using the strait U.Calambokidis, however,the best available data support specific locations and seasons(Bryant et CRC,pers.comm.,May 23,2018).The a conclusion that this area is a a1.1981,Straley et al.2018). offshore boundary for Unit 11 was destination for whales from the MX and Photo-identification data confirm this selected to follow the contour of cells CAM DPSs(Calambokidis et al.2000). area is a destination for whales from the containing the highest 90 percent of the Some available data also suggest that HI HI and MX DPSs(Baker et al.1985, study area abundance predicted by the DPS whales may occur in this unit 1986;Calambokidis et al.2008). Becker et al.(2016)habitat model, (Mate et al.2018). Although sightings of WNP DPS whales which generally coincided with the Unit 13—Coastal Oregon are reported for general areas to either 1,200-m isobath.Multiple,persistent, side of this unit(Kodiak,Alaska and dense aggregations(hotspots)of krill This area extends southward from Vancouver Island,British Columbia, (humpback prey)occur near the Juan de 45°10'latitude to 42°10',and extends e.g.,Calambokidis et al.2001),portions Fuca canyon in this area,likely due to offshore to a boundary at the 1,200-m of Unit 10 have been surveyed the canyon feature(Santora et al.2018). isobath.The 50-m isobath forms the extensively,and those survey data do Humpback whales have also been shoreward boundary.This area includes not indicate that the WNP DPS occurs shown to associate with the shelf edge, the BIA at Stonewall and Heceta Bay, in Unit 10. particularly near submarine canyons off and includes waters off of Tillamook, Green et al.1992). Lincoln,Lane,Douglas,Coos,and Curry Unit 11—Coastal Washington Washington( )' Counties.Unit 13 covers 5,750 nmiz of This area extends southward from the Humpback whales also target various marine habitat. U.S.EEZ to 46°50'N,just north of forage-fish species within this unit,with This unit includes the Stonewall and Willapa Bay,WA.The unit extends Pacific herring being one Washingtonsh off the most Heceta Bank BIA,which supports offshore to a boundary corresponding to Northern Oregoevalent foragen Brodeur et 005 nd humpback whale feeding aggregations the 1,200-m isobath,which also aligns Northern et alZwoli .2012). from May to November(Calambokidis et with the seaward extent of a BIA.The al.2015).The northern and offshore unit includes waters within the U.S. Photo-identification data confirm this boundaries of this unit correspond to portion of the Strait of Juan de Fuca to area is a destination for whales from the cells containing the highest 90 percent an eastern boundary line at Angeles HI,MX,and Central America(CAM) of the study area abundance predicted Point(123'33'W).The 50-m isobath DPSs(Calambokidis et al.2008). by the Becker et al.(2016)habitat forms the shoreward boundary.The unit Unit 12—Columbia River Area model.The southern boundary of this includes waters off Clallam and unit was drawn just north of another Jefferson Counties,and a portion of This area extends southward from BIA.Based on surveys conducted in Grays Harbor County.Unit 11 covers 46050'N to 45010'N and extends out to spring and summer of 2000 as part of 3,441 nmi2 of marine habitat. a seaward boundary corresponding to the US Global Ocean Ecosystem This area was drawn to encompass the 1,200-m isobath.The 50-m isobath Dynamics(GLOBEC)Northeast Pacific the Northern Washington BIA forms the shoreward boundary.This program,concentrations of humpback (Calambokidis et al.2015),located at the area includes waters off of Pacific whales on Heceta Bank were shown to northern edge of this unit,and cells County,WA and Clatsop County,OR. correspond to high densities of fish containing the highest 90 percent of the This unit covers 3,636 nmi2 of marine (Pacific sardine and juvenile salmon) study area abundance predicted by the habitat. and large,high density patches of krill Becker et al.(2016)habitat model.The This unit was drawn to capture the (Tynan et al.2005,Ressler et al.2005). BIA typically supports humpback whale Columbia River plume system,which Within this unit,large,persistent feeding aggregations from May to supports foraging by many predators, aggregations of krill have been observed November.In addition to the habitat including concentrations of humpback inshore of Heceta Bank,off Cape Blanco, model results,clusters of humpback whales.The unit extends both north and in association with submarine canyons whale sightings just off Grays Harbor south of the mouth of the Columbia (Ressler et al.2005,Santora et al.2018). area(see Calambokidis et al.2015)and River to capture the spatial variation of Photo-identification data confirm this movement data collected from five the plume system.Within this unit,as area is a destination for whales from the humpback whales with LIMPET satellite well as others along the West Coast, MX DPS(Calambokidis et al.2008). tags(Schorr et al.2013)support hotspots with persistent,heightened Presence of CAM DPS whales in this inclusion of waters beyond the BIA in abundance of krill also occur in area is indicated by genetic data as well this unit.The unit also includes waters association with submarine canyons as modelling of sightings data(Wade within the Strait of Juan de Fuca where (Santora et al.2018).The area extends 2017,Mate et al.2018). whales have been observed foraging in out to the 1,200-m isobath to capture the recent years(and which falls outside of outer edge of cells containing the Unit 14—Southern Oregon/Northern the area covered by surveys used to highest 90 percent of the study area California generate the habitat model predictions). abundance predicted by the Becker et This area is bounded in the north at Although humpback whales have been al.(2016)habitat model.The area also 42°10'and extends south to the increasingly observed within the Salish encompasses areas over which Mendocino escarpment at 40020'.The Sea(i.e.,the waters of the Strait of humpback whales have been observed area extends offshore to a boundary Georgia,the Strait of Juan de Fuca, to feed based on ARS data from satellite drawn along the 2,000-m isobath.The Puget Sound,and around the San Juan tagged whales(Mate et al.2018).The 50-m isobath forms the shoreward Islands,Calambokidis et al.2017),Unit southern boundary at 45'10'N was boundary.The area includes the marine 11 does not extend beyond the strait drawn to encompass the available ARS waters off Del Norte County,CA,and farther into the Salish Sea.High areas and to reflect where the habitat most of Humboldt County,CA,and Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54371 borders a small portion of Curry County, and extends southward to 38'40'N, by the Becker et al.(2016)habitat OR.Unit 14 covers 3,412 nmi2 of marine which corresponds to the approximate model.In this unit,the habitat model habitat. southern boundary of an identified BIA. predictions extend farther offshore This unit includes the Point St. The area extends offshore to a boundary relative to the more northern West Coast George BIA,which typically supports drawn at the 3,000-m isobath.The 50- units,and extend even farther offshore whale feeding aggregations during July– m isobath forms the shoreward based on modeled whale distributions November(Calambokidis et al.2015). boundary.This area includes marine in colder months(January–April,see The northern boundary of this unit waters off the coasts of Humboldt and Becker et al.2017).Therefore,the corresponds to the boundary of this BIA. Mendocino counties,CA,and covers offshore boundary was placed at the The southern boundary corresponds 4,898 nmi2 of marine habitat. 3,700-m isobath to capture areas of with the Cape Mendocino/the The northern boundary of this unit higher predicted abundances in both Mendocino escarpment,where the corresponds to the Mendocino summer and winter.(The area covered predicted abundance from the habitat escarpment and a shift farther offshore by the Becker et al.(2017)winter model model shows a somewhat abrupt shift in the habitat model predictions(Becker starts at 38000',and we are not aware of offshore(Becker et al.2016).The et al.2016).The offshore boundary of any other models based on winter seaward boundary for this unit extends this unit extends out to the 3,000-m distributions for areas north of this out to the 2,000-m isobath to capture the isobath to more closely correspond to unit.)This area also extends into the habitat model predictions.ARS areas cells containing the highest 90 percent mouth of the San Francisco Bay to derived from satellite tracking data(n= of the study area abundance predicted capture a recently recognized important 26 whales,Mate et al.2018)indicate by the Becker et al.(2016)habitat foraging area for humpback whales that feeding behavior occurs throughout model.This boundary is also supported (Calambokidis et al.2017)as well as this unit,and although some ARS data by ARS data indicating that whales are ARS data indicating that whales are indicate whales feed seaward of the feeding farther from shore(Mate et al. feeding in and around the mouth of the 2,000-m isobath,the majority of the ARS 2018).Encompassed within this unit is bay(Mate et al.2018).The highest behavior is captured within the a BIA that extends from Fort Bragg to densities of whales are seen at the boundaries of this unit.Multiple, Point Arena and that typically supports entrance to San Francisco Bay,with a recurring,high density aggregations feeding aggregations of humpback few extending into the Bay U. (hotspots)of krill occur off of Cape whales from July to November Calambokidis pers.comm.,May 23, Mendocino and elsewhere in this unit, (Calambokidis et al.2015).The southern 2018).Based on data from in association with submarine canyons boundary of the unit corresponds to the hydroacoustic surveys spanning (Santora et al.2018).Within this unit northern boundary of another BIA. multiple years between 2000-2009, and southward along the coast to High-density,persistent aggregations of persistent and recurring,high-density Southern California(i.e.,Unit 19), krill occur off Cape Mendocino and in aggregations of krill ranging in size from Fleming et al.(2016)collected 259 skin association with canyon features within about 578 km2 to 950 km2 have been samples from humpback whales during this unit(Santora et al.2018).Krill shown to occur in multiple areas within 1993-2012 and used stable carbon and hotspots,measuring about 216-320 km2, this unit,including Bodega Head, nitrogen isotope analyses to evaluate the have also been documented offshore of Cordell Bank,Gulf of the Farallones, relative contribution of euphausiids Point Arena near the 2,000-m isobath Pescadora,and Monterey Bay(Santora versus fish to the diet.Shifts over the (Santora et al.2011,Dorman et al. et al.2011,Dorman et al.2015,Santora 20-year study period in isotope 2015). eta].2018). signatures in whale skin samples Photo-identification data are not Photo-identification data confirm this observed by Fleming et al.(2016) available to validate occurrences of area is a destination for whales from the indicate trophic-level shifts in the particular DPSs within this unit; MX and CAM DPSs(Baker et al. 1986, humpback whale diet,and these shifts however,the available data strongly Calambokidis et al.2008). corresponded to shifts in relative prey support the conclusion that this area is Unit 17—Central California Coast Area abundance(krill versus anchovy and a destination for whales from the MX sardine)and changing oceanographic and CAM DPSs(Calambokidis et al. This area extends from 36'00'N to a conditions within the CCE.These 2000). southern boundary at 34030'N,just results suggest that the dominant prey south of an identified BIA.The in humpback whale diet switched from Unit 16—San Francisco and Monterey nearshore boundary is defined by the krill to fish,and back to krill during the Bay Area 30-m isobath,and the seaward boundary 20-year period,depending on the This area extends from 38'40'N is drawn along the 3,700-m isobath. relative abundance of each prey. southward to 36000'N to encompass a This unit includes waters off of Temporal shifts in diet composition BIA.The seaward boundary is drawn southern Monterey county,and San (e.g.,from euphausiids and sardine in along the 3,700-m isobath.The inshore Luis Obispo and Santa Barbara counties. the 1920s to mainly anchovy in the boundary is mainly defined by the 15- Unit 17 covers 6,697 nmi2 of marine 1950s and 1960s)are also reflected in m isobath,but also extends up to the habitat. historical whaling data and stomach Golden Gate Bridge within San This unit encompasses a BIA that content data from harvested whales Francisco Bay.This area includes extends from Morro Bay to Point Sal (Rice 1963,Clapham et al.1997). waters off of the southern edge of and typically supports high density Photo-identification data confirm this Mendocino County,and Sonoma, feeding aggregations of humpback area is a destination for whales from the Marin,San Francisco,San Mateo,Santa whales from April to November MX and CAM DPSs(Calambokidis et al. Cruz,and Monterey counties.Unit 16 (Calambokidis et al.2015).In this area, 2008). covers 12,349 nmi2 of marine habitat. as with Unit 16,the predicted This unit encompasses the Gulf of the abundance extends farther offshore in Unit 15—California North Coast Area Farallones-Monterey Bay BIA the warmer months(July–December) This unit is bounded along its (Calambokidis et al.2015)as well as and even more so in cooler months northern edge by the Mendocino cells containing the highest 90 percent (January–April)relative to the northern escarpment at approximately 40020'N of the study area abundance predicted units(Becker et al.2016 and 2017). 54372 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules Therefore,the offshore boundary was south by the U.S.EEZ.The 50-m isobath of exclusion outweigh the benefits of placed at the 3,700-m isobath to capture forms the shoreward boundary.This inclusion of such areas. See 16 U.S.C. areas of higher predicted abundance in unit includes waters off of Los Angeles, 1533(b)(2). both summer and winter.The southern Orange,and San Diego counties,and After identifying specific areas that boundary for this area was drawn just covers 12,966 nmiz of marine habitat. we concluded would potentially meet south of the BIA.Based on acoustic This area does not contain a BIA but the definition of critical habitat for survey data collected during 2004-2009, was drawn to capture cells containing humpback whales,we contacted DOD large krill hotspots,ranging from 700 the highest 90 percent of the study area representatives and requested km2 to 2,100 km2,occur off Big Sur,San abundance predicted by the Becker et information regarding relevant INRMPs. Luis Obispo,and Point Sal(Santora et al.(2017)habitat model.This area falls In response,the U.S.Navy(Navy) al.2011).Hotspots with persistent, outside of the predicted high use area in provided descriptions and locations of heightened abundance of krill were also the summer/fall months but is predicted four areas adjacent to the humpback reported in this unit in association with to support high densities of whales in whale specific areas and that are bathymetric submarine canyons the winter/spring months(Becker et al. managed under Sikes Act-compliant (Santora et al.2018). 2017).The higher densities of INRMPs:(1)Pacific Beach Annex,WA; Photo-identification data confirm this humpback whales in winter may stem (2)Naval Base Ventura County,Point area is a destination for whales from the from the fact that some of the whales Mugu,CA;(3)Naval Outlying Field,San MX and CAM DPSs(Calambokidis et al. sighted in this area are likely transiting Nicolas Island,CA;and(4)Naval 2008). through the area,rather than occupying Auxiliary Landing Field,San Clemente Unit 18—Channel Islands Area the area as a feeding destination.Within Island,CA.The Navy also provided this unit,krill hotspots ranging in size information regarding how in their This area extends from a northern from about 210 km2-430 km2 have been view,each of their approved INRMPs boundary at 34030'N to a boundary line observed off San Nicolas and Santa provides a conservation benefit to that extends from Oxnard,CA seaward Barbara Islands(Santora et al.2011), humpback whales and their habitat.An to the 3,700-m isobath,along which the and additional hotspots have been additional fifth INRMP;associated with offshore boundary is drawn.The 50-m observed in association with submarine the Navy's Southeast Alaska Acoustic isobath forms the shoreward boundary. canyons(Santora et al.2018). Measurement Facility,AK(SEAFAC) This unit includes waters off of Santa Photo-identification data are not was mentioned as being under Barbara and Ventura counties.This unit available to validate occurrences of development.The SEAFAC INRMP is covers 9,799 nmi2 of marine habitat. particular DPSs within this unit; not yet available for review;however,a This unit encompasses the Santa however,the available data support the draft is expected to be completed in Barbara Channel-San Miguel BIA,which conclusion that this area is a destination December 2019.After reviewing the supports high density feeding for whales from the MX and CAM DPSs information and maps provided,we aggregations of humpback whales (Calambokidis et al.2000,Rasmussen et found that the Pacific Beach Annex during March through September al.2012). INRMP addresses an entirely upland (Calambokidis et al. 2015).The seaward Application of ESA Section 4(a)(3)(13)(i) property and does not overlap with the boundary at the 3,700-m isobath (Military Lands) areas under consideration for encompasses cells containing the designation as critical habitat. highest 90 percent of the study area Section 4(a)(3)(B)(i)of the ESA Therefore,this INR1vIP was not abundance predicted by both the precludes designating as critical habitat considered further. summer and winter habitat models any lands or other geographical areas Based on our initial review of the (Becker et al.2016 and 2017).The owned or controlled by the Department remaining three,approved,Navy southern boundary of this unit was of Defense(DOD)or designated for its INRMPs pursuant to the considerations selected to correspond to where the use,that are subject to an Integrated indicated in 50 CFR 424.12(h);the plans habitat model predictions for both Natural Resources Management Plan appeared to provide a measure of models show a clear decline in (lNRMP)prepared under section 101 of conservation benefit to humpback predicted densities.The area to the the Sikes Act(16 U.S.C.670a),if the whales.However,because each of the south(i.e.,Unit 19)is predicted to have Secretary determines in writing that areas addressed by the INRMPs were much lower summer densities of such plan provides a benefit to the very small relative the potential critical whales.Based on acoustic survey data species for which critical habitat is habitat units in which they are located collected during 2004-2009,a krill proposed for designation.See 16 U.S.C. (Units 18 and 19),and because a few hotspot of about 780 km2 has been 1533(a)(3)(B)(i);50 CFR 424.12(h). additional components of the approved documented off Point Conception Where these standards are met,the 1NRMPs were required from the Navy to (Santora eta].2011).Some additional relevant area is ineligible for complete our review(e.g.,maps, krill hotspots have also been observed consideration as potential critical appendices to an INRMP listing specific in this unit in association with habitat.The regulations implementing management activities),we deferred bathymetric submarine canyons the ESA set forth a number of factors to further review of these INRMPs pending (Santora et al.2018). guide consideration of whether this conclusion of our analyses under Photo-identification data confirm this standard is met,including the degree to section 4(b)(2),because that analysis area is a destination for whales from the which the plan will protect the habitat could lead to proposed exclusion of the MX and CAM DPSs(Calambokidis et al. of the species(50 CFR 424.12(h)(4)). larger specific area or areas.Once we 2008). This process is separate and distinct concluded our analysis under section Unit 19—California South Coast Area from othe analysis governed by section 4(b)(2)and had developed our list of (b)(2)of the ESA,which directs us to potential exclusions,we ultimately The northern boundary for this unit consider the economic impact,the found it necessary to complete a final extends southwest from Oxnard,CA impact on national security,and any review of only two INR1vTs—the Naval through the Santa Cruz Basin and out to other relevant impact of designation and Outlying Field San Nicolas Island(SNI) a seaward boundary along the 3,700-m affords the Secretary discretion to and Naval Base Ventura County(NBVC), isobath.The unit is also bounded in the exclude particular areas if the benefits Point Mugu.These are not fully Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54373 encompassed by areas that we are impacts attributable to the critical of particular areas that corresponded to proposing to exclude under 4(b)(2). habitat designation relative to a baseline tribal lands,associated treaty rights, The relevant areas addressed under that reflects existing regulatory impacts and/or relevant resources. the NBVC Point Mugu 1NRMP are in the absence of the critical habitat. Below,we summarize the economic, submerged lands and resources 3 nmi The second sentence of section 4(b)(2) national security,and other relevant out from Point Mugu(relative to MLLW) describes an optional process by which, impacts of designating the areas and a zone that extends 0.25 nmi the Secretary may go beyond the identified as meeting the definition of offshore around San Miguel and Prince mandatory consideration of impacts and critical habitat for the three DPSs of Islands.This INRMP thus includes areas weigh the benefits of excluding any humpback whales.Additional detail is that overlap with Units 18(i.e.,the area particular area(that is,avoiding the provided in the Draft Economic around San Miguel and Prince Islands) economic,national security,or other Analysis(IEc 2019a)and the Draft and 19(i.e.,the area off Point Mugu). relevant impacts)against the benefits of Section 4(b)(2)Report(NMFS 2019b). Relevant areas within the footprint of designating it(primarily,the National Security Impacts the SNI INRMP are the waters conservation value of the area).If the surrounding SNI and Begg Rock within Secretary concludes that the benefits of To gather information on potential the 300-foot(91-m)isobath or 1 nmi excluding particular areas outweigh the national security impacts of our from shore,whichever is greater.This benefits of designation,he may exclude proposed designation,we contacted INRMP covers an area that lies mainly the particular area(s),so long as he representatives from DOD and the within Unit 19,but the area around concludes on the basis of the best Department of Homeland Security Begg Rock extends into Unit 18. available scientific and commercial (DHS)by letter dated October 9,2018. Management efforts described within information that the exclusion will not We asked for information regarding both of these INRMPs,which are result in extinction of the species(16 impacts of a potential critical habitat discussed in detail in the Draft Section U.S.C.1533(b)(2)).NMFS and the U.S. designation for humpback whales on 4(b)(2)Report(NMFS 2019b),include Fish and Wildlife Service have adopted military operations and national actions such as water quality monitoring a joint policy setting out non-binding security.Under the 4(b)(2)Policy,a within nearshore waters and storm- guidance explaining generally how we requesting agency must provide a water management;surveys of exercise our discretion under 4(b)(2). reasonably specific justification for the intertidal,subtidal,and deep water See Policy Regarding Implementation of assertion that there is an incremental habitats;and area closures to minimise Section 4(b)(2)of the Endangered impact on national security that would impacts of noise or other disturbances Species Act("4(b)(2)Policy,"81 FR result from the designation of that on marine mammals.Based on our 7226,February 11,2016). specific area as critical habitat(81 FR consideration of the activities listed in While section 3(5)of the ESA defines 7226,7231,February 11,2016). the INRMPs and their relevance to critical habitat as"specific areas," Requests for exclusion due to national humpback whales and their habitat,the section 4(b)(2)requires the agency to security impacts were initially received certainty that the relevant management consider the impacts of designating any from the both the Navy and the U.S.Air actions would be implemented,the "particular area."Depending on the force(USAF);however,following frequency of use of the areas by biology of the species,the subsequent discussions with USAF humpback whales,and the extent of characteristics of its habitat,and the representatives,the USAF withdrew humpback prey occurrences within the nature of the impacts of designation, their requests for exclusions. areas,we ultimately concluded that the "particular"areas may be—but need not On December 5,2018,the Navy areas covered by the applicable INRMPs necessarily be—delineated so that they provided a written assessment of provide a conservation benefit to are the same as the already identified potential national security impacts and humpback whales.Thus,we determined "specific'areas of potential critical detailed descriptions of training and that these areas are not eligible for habitat.For this designation,we testing operations occurring in the designation as critical habitat and analyzed two types of particular areas. following ranges: removed them from Units 18 and 19. When we considered economic impacts, (1)Gulf of Alaska Temporary Analysis of Impacts Under Section we used the same biologically-based Maritime Activities Area(GOA TMAA), 4(b)(2)of the ESA "specific areas"we had identified under which overlaps with portions of critical section 3(5)(A)(i.e.,Units 1-19,Figure habitat Units 5,7,and 8; The first sentence of section 4(b)(2)of 1).This delineation allowed us to most (2)Southeast Alaska Acoustic the ESA requires the Secretary to effectively compare the biologically- Measurement Facility(SEAFAC),which designate critical habitat for threatened based conservation benefits of lies within critical habitat Unit 10; and endangered species on the basis of designation against economic benefits of (3)Quinault Range Site(QRS;a the best scientific data available after exclusion,which we elected to do,and component of the Naval Undersea taking into consideration the economic led us to propose excluding some units. Warfare Center Division Keyport Range impact,the impact on national security, For our consideration of impacts on Complex),which overlaps with a and any other relevant impact,of national security,however,we instead portion of Unit 11; specifying any particular area as critical used a delineation of particular areas (4)Pacific Northwest Ocean Surface/ habitat.Regulations at 50 CFR 424.19(b) based on DOD ownership or control of Subsurface Operating Area(OPAREA,a also specify that the Secretary will the area.As discussed below,this component of the Northwest Training consider the probable impacts of the consideration of national security Range Complex and within the designation at a scale that the Secretary impacts led in some cases to propose Northwest Training and Testing Study determines to be appropriate,and that excluding smaller areas from within the Area),which overlaps with portions of such impacts may be qualitatively or specific areas(units)we described,i.e., Units 11-15; quantitatively described.The Secretary redrawing the boundaries of those units. (5)Southern California Range is also required to compare impacts Similarly,for our consideration of other Complex(SOCAL)portion of the with and without the designation(50 relevant impacts,such as the impacts Hawaii-Southern California Training CFR 424.19(b)).In other words,we are designation of a particular area would and Testing Study Area,which overlaps required to assess the incremental have on Tribes,we used a delineation with Unit 19;and, 54374 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules (6)Point Mugu Sea Range(PMSR), test and evaluation activities,thereby largest explosives that could be used on which overlaps with portions of Unit impacting military readiness and the range could extend beyond the QRS 17,18,and 19. national securityboundaries,and that excluding a buffer Based on their consideration of The QRS is a defined space off the of 10-km around QRS from the critical ongoing and planned Naval operations, coast of Washington that encompasses habitat designation would avoid the location of the potential critical air,surface(-5,228 nmi2(6,924 km2)) additional mitigation requirements.The habitat areas,and the essential prey and subsurface space(with variable Navy indicated that they determined feature,the Navy concluded that,at this depths up to 1.8 km),as well as a surf this specific buffer distance after taking time,they did not anticipate national zone area off the coast of Pacific Beach, into account the site specific security impacts resulting from a critical Washington.The Navy does not own or oceanographic conditions and the best habitat destination that overlapped with outright control the sea space of QRS, available science establishing fish injury the GOA TMAA,OPAREA,and PMSR. which is largely defined by the thresholds(which Navy cited as Popper The Navy indicated that there were, boundaries of the special use airspace, et al.,2014). however,anticipated national security known as W-237A,above it.The Navy The SOCAL range complex is located impacts for operations at SEAFAC,QRS, has internal control of subareas for between Dana Point and San Diego,CA and SOCAL,and requested that these scheduling purposes only.The Navy and extends more than 1,111 km range areas be excluded from any issues notices to mariners(NOTMARs) southwest into the Pacific Ocean.Most proposed humpback whale critical when the Navy engages in activities that activities occur within the eastern habitat designation. may be hazardous to vessels engaged in portion of the SOCAL range complex, SEAFAC is small area,covering 48 innocent passage,and/or recreational closer to shore and to the Navy's largest nmi2(164 kmz)in the Western Behm and commercial activities.Compliance homeport location in the Pacific.The Canal near the city of Ketchikan,Alaska, with NOTMARS are voluntary,but help spatial extent of overlap between the and serves as the Navy's primary to protect public safety and prevent SOCAL range and Unit 19 is 10,731.5 acoustic engineering measurement damage to test equipment.The QRS nmiz(36,808 km2),which is facility in the Pacific.This facility overlaps with approximately 44 percent approximately 54 percent of the Navy's comprises an instrumented site that has of Unit 11,which covers an area of core training area within SOCAL and in-water assets(such as piers, 3,441 nmi2 of marine habitat.Access to approximately 83 percent of Unit 19, hydrophones,sensors,and in-water areas within the QRS is controlled which measures 12,966 nmi2(44,472.1 communication systems)that may be during testing events for public safety km2).A wide variety of training and deployed on permanent or long-term and to prevent damage to test testing activities occur within the bases,and an adjacent land-based equipment.Activities planned in the SOCAL range complex on a routine and support site located within 15 acres QRS to the year 2020 and beyond sometimes fairly high frequency basis.A (0.06 km2)on Back Island.This area is include activities such as at-sea sonar few types of Navy testing activities in under Navy controlled restricted use, testing,anti-submarine warfare testing, this area are those related to anti- and no other Federal activities are acoustic and oceanographic research, submarine warfare,torpedo,mine expected to occur in this area.Public countermeasure testing,torpedo testing, countermeasure,gun,missile and access to SEAFAC areas can be undersea warfare testing,etc.The Navy rocket,and propulsion testing.The restricted by the Navy with notification stated that use of explosives within the activities that occur in the SOCAL range in accordance with 33 CFR 334.1275. QRS is likely to have adverse effects on complex have the potential to impact Testing activities planned for the humpback prey species,although in the water surface or water column,with foreseeable future include,but are not their view these would not have effects the degree of impact depending on the limited to,submarine sonar testing/ at the population level.The Navy nature of the particular activity.The maintenance,acoustic component concluded that humpback whale critical Navy referred to the detailed testing,countermeasure testing,and habitat would impact the ability of the discussions on particular impacts hydrodynamic and submarine Navy to test and field new systems and provided in the Navy's 2018 Final maneuverability testing.Although the platforms and thus impact national Environmental Impact Statement for Navy indicated they did not anticipate security if ESA section 7 consultations Hawaii-Southern California Training impacts to humpback whale critical resulted in additional mitigation and Testing.Ultimately,the Navy habitat or humpback whale prey as a requirements or restrictions on testing concluded that designation of Unit 19 as result of the majority of current testing activities in the QRS. critical habitat could lead to activities,they expressed concern Subsequent to their initial request for requirements for additional mitigations regarding future testing activities.They exclusion of QRS,the Navy conducted (avoidance,limitations,etc.)that could specifically noted that this area is used further analysis and,in September 2019, hinder Navy testing and training to evaluate cutting edge systems and submitted additional information activities,and thereby impact military platforms,which could affect future relative to this particular national readiness and national security. determinations regarding impacts on the security exclusion.Specifically,the Therefore,Navy requested that we habitat.The Navy discussed that the Navy requested that an additional 5.4- exclude Unit 19 from any critical habitat nature of the testing that is undertaken nmi(10-km)buffer around QRS be designation. at this site requires prescriptive excluded to avoid impacts to ongoing procedures and use of specific areas and and future testing activities that would Economic Impacts that any additional mitigation resulting result should Naval Sea Systems The primary impact of a critical from a critical habitat designation has Command have to halt,reduce in scope, habitat designation stems from the ESA the potential-to impact militaryor geographically/seasonally constrain section 7(a)(2)requirement that Federal readiness by impeding the testing of testing activities to prevent adverse agencies ensure their actions are not new systems,platforms,and effects or adverse modification of likely to result in the destruction or capabilities.The Navy stated that any critical habitat.The Navy determined adverse modification of critical habitat: impact on the full utilization of that sound and energy levels that may Determining the extent of this impact in SEAFAC would impact their ability to cause injuries to humpback whale prey practical terms is complicated by the perform critical research,development, species within critical habitat from the fact that section 7(a)(2)contains the Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54375 associated but distinct requirement that The first step in the economic 7 consultations(IEc 2019a).No Federal agencies must also ensure their analysis involved identifying the additional conservation measures were actions are not likely to jeopardize the baseline level of protection already identified as likely to result from the species'continued existence.The afforded the humpback whales in the projected consultations,largely due to incremental economic impacts of a areas being considered for designation the baseline protections in place. critical habitat designation stem from as critical habitat.The baseline for this Depending on the specific area at issue the additional effort to engage in analysis is the existing state of and the Federal action,relevant baseline consultation regarding potential adverse regulation prior to the designation of protections include,for example, effects to the critical habitat as part of critical habitat,including protections protections for co-occurring listed section 7 consultations(often referred to afforded due to the listing of the species species such as North Pacific right as administrative costs),and any under the ESA,and other Federal,state whales,Southern Resident killer conservation measures that may be and local laws and guidelines,such as whales,salmon,Southern DPS of Pacific necessary to avoid adverse modification the MMPA,Clean Water Act,and state eulachon,and the Southern DFS of and that would not otherwise be environmental quality laws.Next,in green sturgeon;designated critical implemented(often referred to as order to complete steps 2-4,we habitat for listed species;as well as project modification costs).Thus,the searched the NMFS consultation protections for humpback whales under incremental impacts attributable to database(for 2.007-2018)to compile a both the ESA and the MMPA.The critical habitat stem from conservation list of Federal actions and the projected number,location,and/or effects on prey efforts that would not already be number of those actions occurring in of some other activities,particularly required due to the need to avoid each of the 19 areas under consideration seismic surveys and alternative energy jeopardy to humpback whales or due to as critical habitat.Outreach to some activities,are speculative at this time. other existing protections(e.g.,for other Federal agencies was also conducted by Therefore,we did not identify any listed species,other Federal,state,or lEc to obtain additional information probable conservation recommendations local regulations).Additional economic about planned activities.As applicable that would likely be made specifically impacts of designation would include and appropriate,NMFS biologists were to avoid adverse modification of the any state and local protections that are also consulted to verify the nature and humpback whale critical habitat as a likely to be triggered as a result of number of consultations expected to result of these activities,nor was it designation.However,as discussed in occur over the next 10 years. possible to estimate the cost of any chapter 3 of the Draft Economic The following categories of activities probable project modifications. Analysis(DEA),we did not identify with a Federal nexus were identified as However,we solicit public comments state or local protections that may be having the potential to affect the and relevant data that would further triggered by a proposed humpback essential prey feature and as being inform this analysis. whale critical habitat designation(IEc expected to occur within the specific The DEA indicates that,if designated, 2019a). critical habitat areas under the 19 units of critical habitat may The analysis methods and the consideration:(1)Commercial fishing, increase administrative costs of estimated,incremental,economic (2)oil and gas activities(including consultations involving humpback impacts stemming from designation of seismic surveys),(3)alternative energy whales by an estimated$630,000 to the identified specific critical habitat development,(4)in-water construction $720,000 over the next ten years, areas for the WNP,MX,and CAM DPSs (including dredging and offshore assuming a seven percent discount rate of humpback whales are described in mining),(5)vessel traffic(specifically, (IEc 2019a).This equates to an detail in the DEA prepared by Industrial activities related to establishment of the annualized cost of$72,000 to$82,000 Economics(IEc 2019a).To quantify the shipping lanes established by the U.S. over the next ten years(IEc 201a9).The economic impacts associated with Coast Guard(USCG)(6)aquaculture,(7) largest portion of administrative costs litary activities,(8)liquefied natural are anticipated in Unit 10(17 to 22 designating the 19 units of habitat under mi consideration,lEc followed the gas(LNG)terminal activities,(9)space percent of total costs),followed by Unit following general steps: vehicle and missile launches,(10)water 13(11 to 12 percent)and Unit 17(9 to (1)Identify the baseline of economic quality management(including 10 percent).In-water construction activity and the statutes and regulations Pesticide registration,establishment of activities represent the largest share of that constrain that statutes m the water quality standards,and Clean estimated costs(34 to 42 percent),while activity Water Act general permits),(11)U.S. 18 to 21 percent of costs are associated absence of the critical habitat Forest Service activities(related to with commercial fishing,and 9 to 10 designation; timber and forest management),and(12) percent is associated with consultations (2)Identify the types of activities that inland activities(including power plant regarding military activities(IEc 2019a). are likely to be affected by critical operations,land management pesticide/ (See the DEA for the specific estimated habitat designation; herbicide application,and National impacts for each of the 19 habitat units (3)Estimate the costs of Pollutant Discharge Elimination System and for each of the 12 categories of administrative effort and,where (NPDES)permitting).These activities Federal activities.) applicable,conservation efforts have the potential to affect the essential These economic impacts are largely recommended for the activity to comply feature by altering or reducing the associated with the administrative costs with the ESA's critical habitat quantity,quality,or the availability of borne by NMFS and other Federal provisions; the prey feature essential to the agencies and not by private entities or (4)Project over space and time the conservation of one or more of the listed small governmental jurisdictions. occurrence of the activities and the DPSs of humpback whales. However,some consultations may likelihood they will in fact need to be As discussed in chapter 2 of the DEA, include third parties(e.g.,project modified;and the costs quantified in the economic proponents or landowners)that may be (5)Aggregate the costs up to the analysis include only the additional small entities.These third parties may particular area level and provide administrative effort associated with bear some portion of the administrative economic impacts as present value consideration of potential impacts to consultation costs.Ultimately,the impacts and annualized impacts. critical habitat as part of future section analysis found that consultations on in- 54376 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules water and coastal construction activities are in close proximity to areas under with potentially affected tribes and may generate costs borne by small consideration for designation as critical Native corporations as we move forward entities.All other activities are either habitat for humpback whales,have with the rulemaking process. not expected to involve small entities or usual and accustomed areas that overlap Analysis of the Benefits of Designation are associated with no more than two with critical habitat areas,or may consultations per year spread across the otherwise be affected in coastal Alaska, The primary benefit of critical habitat entire critical habitat.As described in Washington,Oregon,and California. designation—and the only regulatory chapter 5 of the DEA,the analysis Thus,at an early stage in the course of consequence—stems from the ESA anticipates approximately eight developing a proposed critical_habitat section 7(a)(2)requirement that all consultations on in-water and coastal rule,we contacted all potentially Federal agencies ensure that their construction activities per year,six of affected tribes.Specifically,in actions are not likely to destroy or which are concentrated in proposed November 2018,and in coordination adversely modify the designated habitat. critical habitat Unit 10 in Alaska.This with the NMFS regional tribal liaison; This benefit is in addition to the section analysis estimates that the small entities we reached out t4 27 tribes located in 7(a)(2)requirement that all Federal involved in these consultations will Washington,Oregon,and California, agencies ensure their actions are not incur$4,900 in annualized and 149 tribes and tribal organizations likely to jeopardize the species' administrative costs(IEc 2019a).(See located within Alaska to offer the continued existence.Another benefit of "Initial Regulatory Flexibility Act" opportunity to consult on critical designation is that it provides notice of section of this document for information habitat for humpback whales and areas and features important to species regarding impacts on small entities.) discuss any concerns they may have. conservation,and information about the Tribal Impacts We provided maps and descriptions of types of activities that may reduce the all areas under consideration as conservation value of the habitat. Section 4(b)(2)of the ESA also allows potential critical habitat,and we(1) Critical habitat designation may also, for the consideration of other relevant invited input regarding tribal resources trigger additional protections under impacts associated with the designation state or local regulations. of critical habitat.We identified and issues,usual and accustomed areas, In addition t tithe benefits of critical potential impacts on Federally or the exercise of tribal rights that may habitat designation to the whales,there recognized tribes as aossible source of be affected by a coastal critical habitat p designation for humpback whales;(2) whale critical habitat demay be ancillary benefits.These other other impacts relevant a the humpback o requested any information to assist us in benefits may be economic in nature,or designation. determining the conservation value of they may result in improvement of the broad array of activities that occur on nearshore areas of Indian lands as well ecological functioning of the designated Indian lands may trigger ESA section 7 as other possible areas of interest to the areas.Chapter 4 of the DEA(IEc 2019a) consultations.Indian lands are those tribes,such as deep-water habitats discusses other forms of benefits that defined in Secretarial Order 3206, outside the nearshore areas;and(3) may be attributed to the conservation "American Indian Tribal Rights, invited discussion on the tribal and recovery of humpback whales Federal-Tribal Trust Responsibilities, (although not specifically attributed to and the Endangered Species Act"(June government's position regarding the the designation a criticacalabitat), l h 5,1997),and include:(1)Lands held in designation of those areas as critical including use benefits h for wildlife trust by the United States for the benefit habitat. viewing),non-use benefits(e.g., of any Indian tribe;(2)land held in trust We received no requests for existence values),and ancillary by the United States for any Indian tribe consultation in response to our outreach ecosystem service benefits(e.g.,water or individual subject to restrictions by efforts.We did,however,receive quality improvements and enhanced the United States against alienation;(3) responses from two tribes in habitat conditions for other marine and fee lands,either within or outside the Washington,the Quinault Indian Nation coastal species).Humpback whales are reservation boundaries,owned by the and the Quileute Tribe.Both tribes also valued in terms of the utility gained tribal government;and(4)fee lands expressed concern regarding the from whale watching experiences.In within the reservation boundaries potential impact of the critical habitat Washington,Oregon,California,and owned by individual Indians. designation on tribal fisheries, Alaska,humpback whales are a target In developing this proposed rule,we particularly within usual and species for whale watchers(IEc 2019a). reviewed maps and did not find overlap accustomed fishing areas located in Whale watch participants in these states between the areas under consideration coastal marine waters.We had multiple generate tens of millions of dollars in as critical habitat and Indian lands. follow-up communications with these economic activity annually(Pendelton Based on this,we preliminarily found tribes;however,neither tribe elected to 2006).Although humpback whales have that there were no Indian lands subject submit formal comment or information value to people nationally and serve as to consideration for possible exclusion. regarding impacts on tribal resources or an economic engine regionally,we are However,it is not clear whether there treaty rights,nor did they request unable to apply the available literature may be some nearshore areas that could additional meetings or consultation.As to quantify or monetize associated use be considered for possible exclusion.In described in the Draft Economic and non-use economic benefits that particular,we lack information Analysis(IEc 2019a),while it is possible would be attributable to a critical regarding where boundaries of tribal- that the critical habitat designation habitat designation.More information owned lands lie in relation to shoreward could result in recommendations for about these types of benefits and values boundary of the specific critical habitat changes in fishery management,we may be found in chapter 4 of the DEA areas in Alaska,which are generally consider that unlikely at this time,given (IEc 2019a). bounded by the 1-m isobath(relative to the existing requirement to consider the It would be ideal if the best available MLLW). effect of harvesting prey on the listed information allowed the benefits of As discussed further under the humpback whales and given existing designation to be monetized so they Classification section of this preamble, Federal fisheries management measures could be directly compared to the there are Indian tribes and Alaska (e.g.,prohibition on krill fishing).We economic benefits of excluding a Native corporations that have lands that will continue to coordinate and consult particular area.However,sufficient and Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54377 relevant data are not available to occurrence within each critical habitat independently rated the habitat unit for monetize the benefits of designation unit(regardless of which DPS the each relevant DPS through a structured (e.g.,estimates of the monetary value of whales belong to).For habitat units decision-making process.To do this, the protecting the feature within areas along the West Coast,density of whales each team member distributed four designated as critical habitat,or the was determined using the habitat model "points"across the following four monetary value of education and results of Becker et al.(2016),which conservation value categories for each of outreach benefits).For this reason,the allowed for calculations of predicted the critical habitat units: ESA regulations recognize that benefits density within each specific critical (1)Very high—meaning areas where may be quantitatively or qualitatively habitat unit(i.e.,predicted abundance the available data indicate the area is described(50 CFR 424.19(b)).Further, per area of the critical habitat unit).As very important to the conservation of we cannot isolate and quantify the effect no comparable modelling data exist for the DPS; that a critical habitat designation would the habitat units within Alaska(i.e., (2)high—meaning areas where the have on recovery of humpback whales Units 1-10),whale density information available data indicate the area is separate from other ongoing or planned was instead compiled from the most important to the conservation of the conservation actions.In addition,it is recent,available literature,which DPS; difficult to accurately predict the future covered various years and time periods, (3)medium—meaning the available harm to the habitat that would and addressed study areas that did not data indicate the area is moderately otherwise have been realized in the necessarily align with the critical important to the conservation of the absence of a critical habitat designation. habitat unit boundaries(see Tables C5 DPS;and, Ultimately,given these challenges and and C6 for details).These non-uniform (4)low conservation value—meaning lack of sufficient information,the data prevented the CHRT from making the available data suggest the DPS does associated incremental use and non-use any strong inferences about humpback not rely on this area for feeding. economic benefits of designating whale densities within Units 1-10 and CHRT members could place all four particular areas of the potential complicated their ability to compare points for a given habitat unit and DPS designation cannot be quantified.As an densities across units.The density data in one of these qualitative categories or alternative approach,we assessed the pulled from the literature were therefore spread those four points across any or benefits of designation using a considered in a very qualitative way and all of the four categories.The degree to biologically-based analysis of the did not directly determine any votes or which votes were spread across the specific areas.In this particular case,the conclusions. conservation value categories thus CHRT considered relevant humpback A third dataset addressed the served as a measure of uncertainty in whale datasets to qualitatively rate the presence of whales from each particular the conservation value of a particular conservation impact or value for the DPS within each critical habitat unit. unit.Because the CHRT consists of 10 DPSs if a particular area is designated as Three different pieces of information team members,each unit of critical critical habitat.These qualitative were presented in this dataset.First, habitat received a total of 40 points. conservation value ratings were then using results of the SPLASH study,the However,CHRT members were used to represent the benefits of CHRT calculated the percentage of permitted to forego assigning their four designation.The Draft Biological Report whales identified to a particular DPS points for a specific critical habitat unit (NMFS 2019a)provides a detailed out of all the matched sightings within if they concluded the available data discussion of the methods and datasets a specific unit.(Matched sightings are were either too limited to support used by the CHRT to systematically the total number of whales photo- drawing a particular conclusion or there assign a qualitative conservation value identified in both the relevant breeding was too much uncertainty associated rating to each of the habitat units areas for the DPS and the critical habitat with the available data.In-these (specific areas)under consideration. unit.Note that most whales sighted in instances,CHRT members could instead In general,the multiple datasets feeding areas have not been identified as categorize the unit as"data deficient." considered by the CHRT provided belonging to a particular DPS.)(See Units receiving"data deficient"votes information about the importance of a Table C7 in NMFS(2019a)for total from one or more CHRT member meant given area for humpback whale feeding, matches and calculations.)Secondly, those particular units received less than the level of use of the critical habitat the CHRT considered the probabilities 40 points. units by all humpback whales,and the of whales from a particular DPS moving Following an initial round of scoring, level of use of the units by whales of from their winter,breeding area to a the CHRT met to discuss their each particular DPS(see Appendix C, feeding area(critical habitat unit)as assessments of the data and results. NMFS 2019a).The first dataset calculated by Wade(2017).These Following that team discussion,CHRT contained information about the feeding movement probabilities were also members were given the opportunity to BIAs that have been identified for derived from SPLASH data.The feeding independently re-evaluate their own humpback whales(see Ferguson et al. areas from the SPLASH study and from point distributions and make any 2015a,c and Calambokidis et al.2015). Wade(2017)represent larger geographic changes(if they elected to do so).The Rather than simply considering areas than the critical habitat units,so CHRT's conservation ratings for each of presence/absence of a BIA and to make in many cases the same movement the habitat units are provided in Tables this information comparable across probability applied to multiple,adjacent 1-3;complete results are presented and units,the CHRT considered the size of critical habitat units.Lastly,the CHRT discussed within the Draft Biological the BIAS relative to the size of the compiled available documentation of Report(NMFS 2019a). particular critical habitat unit. whales from a specific DPS occurring in proposed Exclusions Based on Specifically,the CHRT calculated the each unit(i.e.,confirmed presence). Economic Im acts percent of total area(km2)of a unit that These data came from both the SPLASH p was covered by the BIA within that unit study as well as other references,a As is clear from the preceding (see Table C4 in NMFS(2019a)for complete list of which is provided in discussion,the conservation benefits to calculations). Table C8 of NMFS(2019a). the humpback whale DPSs that would The second dataset included data on After reviewing the datasets as a result from the designation of any the density of humpback whales' group,each member of the CHRT particular critical habitat unit, 54378 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules expressed as a qualitative rating,are not several,large,marine critical habitats rated as having a"low"conservation directly comparable to the economic that have been previously designated in value.By definition,these low value benefits that would result from the Pacific(e.g.,leatherback sea turtle, habitat units are those specific areas, exclusion of the particular unit from 77 FR 4169,January 26,2012;black based on the CHRT's assessment of the designation,which is expressed as a abalone,76 FR 66806,October 27, best available data,upon which quantified cost.However,to weigh the 2011).Relative to these other humpback whales of the particular DPS benefits of designation against the designations,the probable economic do not appear to rely on as extensively economic benefits of exclusion,we have impacts projected for the humpback for feeding,given the lower density or to compare these two types of whale critical habitat are comparatively level of occurrence of whales relative to information.As noted previously,the very low. other units with higher conservation Secretary has discretion to determine Results of the biological and value.Therefore,even though the the weight to assign to the relevant economic analyses(see Tables 1-3) estimated annualized impacts only factors and may exclude any particular indicate that habitat units rated as ranged from$680-$5,200 across all of area from the critical habitat designation having"very high"or"high" the low conservation value areas for all upon a determination that the benefits conservation value are associated with DPSs,the CHRT concluded that these of such exclusion outweigh the benefits annualized impacts ranging from$430 of specifying the particular area as part (Unit 1,WNP and MX DPSs)to$7,500 costs outweighed the minimal of the critical habitat(50 CFR 424.19(c)). (Unit 11,CAM and Na DPS).Habitat conservation benefits to the whales of The Secretary,however,cannot exclude units rated as having"medium" designating these areas.We concurred any particular area if,based on the best conservation value are associated with with the CHRT's assessment and note scientific and commercial data annualized impacts ranging from$680 that even with the potential exclusions, available,the Secretary determines that (Unit 4,NIX DPS)to$18,000(Unit 10, the resulting designation includes the failure to designate that area as MX DPS).Lastly,specific areas rated as extensive areas of medium,high,and critical habitat will result in the having"low"conservation value were very high conservation value;and extinction of the species concerned(50 associated with annualized impacts therefore,we propose to exclude all low CFR 424.19(c)).For this analysis,we ranging from$680(Unit 4,WNP DPS) conservation value areas from the note that each of the units identified for to$5,200(Unit 19,CAM and NIX DPSs). critical habitat designations. potential designation meet the After reviewing the costs and Specifically,we proposed to exclude the definition of critical habitat because conservation values for each specific following five units from the critical they are in the occupied range of the area and for each DPS,the CHRT habitat designation for the WNP DPS: species and contain the identified concluded that the economic impacts Unit 4--Central Peninsula Area,Unit physical or biological feature;however, for units with very high,high,and 6—Cook Inlet,Unit 7—Kenai Peninsula the areas vary as to the level of medium conservation ratings were not Area,Unit 8—Prince William Sound conservation value anticipated to result outweighed by the relatively low costs Area,and Unit 9—Northeastern Gulf of from the designation.We(exercising the attributed to any of those units.Given Alaska.Based on the application of this delegated authority of the Secretary) the data-driven process by which the same decision rule,we also propose to determined that the conservation CHRT carefully evaluated the relative exclude one specific area,Unit 19— benefits of including areas with conservation value of each critical California South Coast,from critical medium,high,or very high habitat unit,the CHRT was confident habitat for the CAM DPS.Lastly,we conservation ratings should have that areas receiving these rating propose to exclude the three low- significant weight in this analysis. classifications are all important to the propose to exclude habitat units from Overall,the projected economic conservation of their respective DPSs.In impacts to Federal agencies and non- other words,these higher value feeding the critical habitat designation for the Federal entities of designating each of areas are viewed as being critical in MX DPS:Unit 7—Kenai Peninsula Area, the 19 habitat units are low,with supporting the overall life history of the Unit 9—Northeastern Gulf of Alaska, annualized impacts ranging from$430- whales,and their conservation value is and Unit 19--California South Coast.As $18,000 per habitat unit(lEc 2019a).If not outweighed by the relatively low discussed in the Draft Section 4(b)(2) all 19 units were designated,the total economic impacts projected to occur as Report(NMFS 2019b),we conclude that annualized impact is estimated to range a result of their designation as critical exclusion of these low conservation- from$72,000 to$82,000 over the next habitat.The CHRT,however,concluded value areas from the critical habitat 10 years(IEc 2019a).This estimated that the economic impacts,though designations will not result in economic impact is well below the objectively low,do outweigh the extinction of any of the three humpback annualized costs associated with benefits of designating specific areas whale DPSs. TABLE 1—CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF POTENTIAL CRITICAL HABITAT FOR THE WESTERN NORTH PACIFIC DPS OF HUMPBACK WHALES Unit No. Area Conservation rating Annualized impacts 1 .............................. Bristol Bay ................................................................ high .......................................................................... $430 2.............................. Aleutian Islands Area ............................................... very high .................................................................. 690-2,400 3.............................. Shumagin Islands Area............................................ very high .................................................................. 430-810 4.............................. Central Peninsula Area ............................................ low............................................................................ 680-860 5.............................. Kodiak Island Area................................................... high .......................................................................... 2,800-3,600 6.............................. Cook Inlet ................................................................. low............................................................................ 3,400-3,700 7.............................. Kenai Peninsula Area .............................................. low............................................................................ 1,000 8.............................. Prince William Sound Area ...................................... low............................................................................ 1,800 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54379 TABLE 1-CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF POTENTIAL CRITICAL HABITAT FOR THE WESTERN NORTH PACIFIC DPS OF HUMPBACK WHALES-Continued Unit No. Area Conservation rating Annualized impacts 9 .............................. Northeastern Gulf of Alaska .................................... low ............................................................................ 1,000 TABLE 2-CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF POTENTIAL CRITICAL HABITAT FOR THE CENTRAL AMERICA DPS OF HUMPBACK WHALES Unit No. Area Conservation rating Annualized impacts 11 ............................ Coastal Washington ................................................. high .......................................................................... $6,800-$7,500 12............................ Columbia River Area ................................................ medium/low .............................................................. 6,300 13............................ Coastal Oregon ........................................................ medium .................................................................... 8,600-9,400 14............................ Southern Oregon/Northern California ...................... high .......................................................................... 2,300 15............................ Califomia North Coast ............................................. medium .................................................................... 1,600 16............................ San Francisco/Monterey Bay................................... very high .................................................................. 2,700 17............................ California Central Coast........................................... very high .................................................................. 7,200 18............................ Channel Islands ....................................................... high .......................................................................... 3,500 19............................ California South Coast ............................................. low ............................................................................ 5,000-5,200 TABLE 3-CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF POTENTIAL CRITICAL HABITAT FOR THE MEXICO DPS OF HUMPBACK WHALES Unit No. Area Conservation rating Annualized impacts 1 .............................. Bristol Bay ................................................................ high .......................................................................... $430 2.............................. Aleutian Island Area................................................. very high .................................................................. 690-2,400 3.............................. Shumagin Islands Area............................................ very high .................................................................. 430-810 4.............................. Central Peninsula Area ............................................ medium .................................................................... 680-860 5.............................. Kodiak Island Area................................................... high .......................................................................... 2,800-3,600 6.............................. Cook Inlet ................................................................. medium .................................................................... 3,400-3,700 7.............................. Kenai Peninsula Area .............................................. low ............................................................................ 1,000 8 .............................. Prince William Sound Area ...................................... high .......................................................................... 1,800 9 .............................. Northeastern Gulf of Alaska .................................... low ............................................................................ 1,000 10............................ Southeastern Alaska ................................................ medium .................................................................... 12,000-18,000 11 ............................ Coastal Washington ................................................. very high .................................................................. 6,800-7,500 12............:............... Columbia River Area................................................ medium .................................................................... 6,300 13............................ Coastal Oregon ........................................................ medium .................................................................... 8,600-9,400 14............................ Southern Oregon/Northern California ...................... high .......................................................................... 2,300 15............................ California North Coast ............................................. medium .................................................................... 1,600 16............................ San Francisco/Monterey Bay Area .......................... very high .................................................................. 2,700 17............................ California Central Coast ........................................... very high .................................................................. 7,200 18............................ Channel Islands Area .............................................. high .......................................................................... 3,500 19............................ California South Coast Area .................................... low ............................................................................ 5,000-5,200 Proposed Exclusions Based on National judgement as to:(1)Whether activities The size of the requested exclusion and Security Impacts on its lands or waters,or its activities on the percentage of the specific critical Based on the written information other lands or waters,have national habitat area(s)that overlaps with the provided by the Navy in December 2018 security or homeland-security Navy area;(2)the relative conservation and information provided through implications;(2)the importance of those value of the specific area for each subsequent discussions with Navy implications;and(3)the degree to particular humpback whale DPS;(3)the representatives,we evaluated whether which the cited implications would be likelihood that the Navy's activities there was a reasonably specific adversely affected by the critical habitat would destroy or adversely modify justification indicating that designating designation.In conducting a review of critical habitat,and the likelihood that certain areas as critical habitat would these exclusion requests under section NMFS would require project have a probable incremental impact on 4(b)(2)of the ESA,we also gave great modifications to reduce or avoid these national security.In accordance with weight to the Navy's national-security impacts;and, (4)the likelihood that our 4(b)(2)Policy(81 FR 7226,February concerns.To weigh the national security other Federal actions may occur in the 11, 2016),in instances where the Navy impacts against conservation benefits of site that would no longer be subject to provided a reasonably specific a potential critical habitat designation, the critical habitat provision if the justification,we deferred to their expert we also considered the following: (1) 54380 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules particular area were excluded from the and specific concerns regarding the to exclude this area as a result of designation. potential impact of a critical habitat national security impacts.This As noted above,SEAFAC is a small designation on their unique testing and conclusion further supports the installation(48 nmiz),comprising only training activities that occur within the proposed exclusion of Unit 19 under 0.22 percent of Unit 10,which covers QRS and the potential delay in critical section 4(b)(2)of the ESA. 22,152 nmi2 of marine habitat within missions in order to complete adverse Proposed Critical Habitat Designations Southeast Alaska,and lies entirely modification analyses,we determined p g outside of the recognized feeding BIA in that the benefits of excluding the QRS For the endangered WNP DPS of this region(Ferguson et al.2015).Unit and buffer due to national security humpback whales,we propose to 10 was found to have a medium impacts outweighs the benefits of designate 78,690 nmi2 of marine habitat conservation value for the MX DPS of designating this portion of Unit 11 as off the coast of Alaska as occupied humpback whales.Given the Navy's critical habitat for the MX and CAM critical habitat.(The proposed substantial and specific concerns DPSs.Thus,we propose to exclude this designation encompasses Units 1,2,3, regarding the potential impact of a DOD area from the critical habitat and 5 as shown in Figure 1.)The designation on their activities within designations for both the MX and CAM specific areas included in the proposed SEAFAC,the extremely small relative DPSs,and the boundaries of Unit 11 designation are seasonal feeding areas size of the requested exclusion,the have been adjusted accordingly. for humpback whales and contain the medium conservation rating of the We considered the information essential prey feature.A total area of habitat,and fact that other Federal 44,119 nmi2 is proposed for exclusion, activities are unlikely to occur in this provided by the Navy concerning because the benefits of exclusion were area,we determined that benefits of potential impacts on national security found to outweigh the benefits of stemming from the designation of Unit excluding this area due to national inclusion of these areas.Specifically, security impacts outweigh the benefits 19 as critical habitat,and found that the the limited conservation benefits of of designating this area as critical Navy had provided a reasonably specific designating the relevant specific areas habitat for the MX DPS.Therefore,we justification for their requested (i.e.,Units 4,6,7,8,and 9)were found are proposing to exclude the SEAFAC exclusion.We considered the to be outweighed by the economic area from the designation of critical information provided by the Nary impact of designating these areas.Each habitat for the MX DPS of humpback regarding the nature and types of of the areas recommended for inclusion whales,and the boundaries of Unit 10 training and testing activities that occur in the designation for the WNP DPS(i.e., have been adjusted accordingly. within the SOCAL range complex(e.g., Units 1,2,3,and 5)contains a After considering the information anti-submarine warfare,torpedo,mine humpback whale feeding BIA and was provided by the Navy regarding countermeasure,gun,missile and rated as having high or very high potential impacts on national security rocket,and propulsion testing)to conservation value for the WNP DPS. stemming from the designation of a evaluate their potential to affect Although one of the areas proposed for portion of Unit 11 as critical habitat,we humpback whale critical habitat.We exclusion(i.e.,Unit 8)also contains a found that the Navy had provided a also reviewed the discussions about humpback whale feeding BIA,whales reasonably specific justification for their Particular impacts provided in the from the WNP DPS have not been requested exclusion of the area Navy's 2018 Final Environmental directly observed within this unit and overlapping with the QRS as well the Impact Statement for Hawaii-Southern presence has only been inferred based 10-km buffer surrounding the QRS.The California Training and Testing(e.g., on the available data.We also find that requested exclusion comprises about 44 impacts to fish and invertebrates).We the exclusion of Units 4,6,7,8,and 9 percent of the area of Unit 11,which agree with the Navy's assessment that from a designation of critical habitat for was rated as having a high conservation the activities that occur in the SOCAL the WNP DPS of humpback whales value for the CAM DPS and a very high range complex,many of which occur would not result in extinction of this conservation value for the MX DPS.To with high frequency,have the potential DPS,because these whales are not get a more precise sense of the value of to impact humpback whale prey expected to rely on these areas for the specific QRS area(including the species,with the degree of impact feeding(NMFS 2019a).No other buffer)to the whales,we reviewed the depending on the nature of the exclusions are proposed for this DPS. overlap of the QRS with the location of particular activity.We also considered We have not identified any unoccupied the BIA and the predicted whale that Unit 19 had been assessed as areas that are essential to the densities from Becker et al.(2016), having low conservation value to both conservation of this DPS,thus we are which modeled predicted densities in the MX and CAM DPSs of humpback no$proposing to designate any approximately 10 km by 10 km grid whales.Although this exclusion request unoccupied areas. cells.Those comparisons indicated that extended over the entirety of Unit 19, For the endangered CAM DPS of the QRS is entirely outside of,and south given the low conservation value rating humpback whales,we propose to of,the BIA,and overlaps partially with this area received for each DPS,we designate 48,459 nmi2 of marine habitat the area where the highest densities of concluded that the benefit of exclusion off the coasts of Washington,Oregon, humpback whales are predicted to occur of this particular area outweighs the and California as occupied critical within Unit 11.In other words,an benefit of including it in either habitat.(The proposed designation exclusion of the QRS and buffer area designation.Overall,we concurred with encompasses part of Unit 11 and Units would not remove from the designation the Navy that designation of Unit 19 12-18 as shown in Figure 1.)The areas much of the comparatively high value would likely have national security being proposed for designation contain locations within Unit 11.The Navy also impacts that outweigh the benefits of the essential prey feature and serve as indicated that while access to this area designating this low conservation value the only major feeding areas for the is not as tightly controlled as with area.Thus,even though we had CAM DPS;thus,these areas are critical SEAFAC,they do exert significant previously determined that Unit 19 to supporting population growth and influence in terms of limiting other should be proposed for exclusion based recovery of this endangered DPS.A total Federal activities within this the QRS. on economic impacts,we made an of 14,489 nmi2 of marine habitat is Overall,given the Navy's substantial independent determination to propose proposed for exclusion,because the Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54381 benefits of exclusion were found to these areas.Given the limited evaluating the potential impacts of a outweigh the benefits of inclusion of conservation benefits of designating proposed action during consultation.If this area.Specifically,the limited these areas,exclusion of these areas will we conclude in the biological opinion conservation benefits of designating the not result in extinction of this DPS. that the agency action would likely relevant specific area(i.e.,Unit 19— About 1,570 nmiz of marine habitat result in the destruction or adverse California south Coast Area)were found corresponding to two Navy areas,one in modification of critical habitat,we to be outweighed by the economic Southeast Alaska(SEAFAC)and one off would also recommend any reasonable impact of designating this area. the coast of Washington(QRS)are being and prudent alternatives to the action. Exclusion of this area,which is not proposed for exclusion as a result of Reasonable and prudent alternatives predicted to be a high use area in the national security impacts.Although are defined in 50 CFR 402.02 as summer/fall,will not result in the these proposed exclusions are within alternative actions identified during extinction of this DPS.An area of about feeding habitat of medium and high formal consultation that can be 1,522 nmiz corresponding to a Navy conservation value for this DPS,they are implemented in a manner consistent testing and training area off the coast of both outside of recognized BIAS,and with the intended purpose of the action, Washington(QRS and buffer)is being they comprise a small area relative to that are consistent with the scope of the proposed for exclusion as a result of the total size of the proposed Federal agency's legal authority and national security impacts.While this designation,which includes coastal jurisdiction,that are economically and exclusion does fall within high to very marine waters off Alaska,Washington, technologically feasible,and that would high conservation-value feeding habitat Oregon,and California.Therefore,we avoid the destruction or adverse for this DPS,it does fall outside of the conclude that these proposed exclusions modification of critical habitat.The recognized feeding BIA and is small will not result in the extinction of the Service may also provide with the relative to the total size of the proposed MX DPS. biological opinion a statement designation,which extends over 48,459 As described above for the CAM DPS, containing discretionary conservation nmiz of marine waters off of the boundary for Unit 18(Channel recommendations.Conservation Washington,Oregon,and California. Island Area)was also adjusted so that recommendations are advisory and are Therefore,we conclude that this the footprint of the SNI INRMP(around not intended to carry any binding legal proposed exclusions will not result in Begg Rock)and of the NBVC Point force. the extinction of this DPS. Mugu INRMP(i.e.,waters around San Regulations at 50 CFR 402.16 require The boundary for Unit 18(Channel Miguel and Prince Islands)are not Federal agencies that have retained Island Area)was also adjusted so that included in the proposed designation, discretionary involvement or control the footprint of the SNI INRMP(around as these areas were determined to be over an action,or where such Begg Rock)and of the NBVC Point ineligible for designation as critical discretionary involvement or control is Mugu INRMP(i.e.,waters around San habitat under section 4(a)(3)(B)(i)of the authorized by law,to reinitiate Miguel and Prince Islands)are not ESA.We have not identified any consultation on previously reviewed included in the proposed designation, unoccupied areas that are essential to actions in instances where:(1)Critical as these areas were determined to be the conservation of the MX DPS,thus habitat is subsequently designated;or ineligible for designation as critical we are not proposing to designate any (2)new information or changes to the habitat under section 4(a)(3)(B)(i)of the unoccupied areas. action may result in effects to critical ESA.We have not identified any Effects of Critical Habitat Designations habitat not previously considered in the unoccupied areas that are essential to biological opinion.Consequently,some the conservation of the CAM DPS,thus Section 7(a)(2)of the ESA requires Federal agencies may request we are not proposing to designate any Federal agencies,including NMFS,to reinitiation of consultation or unoccupied areas. ensure that any action authorized, conference with NMFS on actions for For the threated MX DPS of funded or carried out by the agency which formal consultation has been humpback whales,we propose to (agency action)is not likely to completed,if those actions may affect designate 175,812 nmi2 of marine jeopardize the continued existence of designated critical habitat for the WNP, habitat off the coasts of Alaska, any threatened or endangered species or CAM,or MX DPSs of humpback whales. Washington,Oregon,and California as destroy or adversely modify designated Activities subject to the ESA section occupied critical habitat.(The proposed critical habitat.Federal agencies must 7 consultation process include activities designation encompasses Units 1-6,8, consult with us on any proposed agency on Federal lands,as well as activities most of Unit 10,part of Unit 11,and action that may affect the listed species requiring a permit or other authorization Units 12-18;Figure 1.)The areas being or its critical habitat.During interagency from a Federal agency(e.g.,a section proposed for designation are seasonal consultation,we evaluate the agency 10(a)(1)(B)permit from NMFS),or some feeding areas that contain the essential action to determine whether the action other Federal action,including funding prey feature,and are critical in may adversely affect listed species or (e.g.,Federal Emergency Management supporting population growth and critical habitat and issue our finding in Agency funding).ESA section 7 recovery of this wide-ranging threatened a biological opinion.The potential consultation would not be required for DPS.A total of 32,097 nmiz of marine effects of a proposed action may depend Federal actions that do not affect listed habitat is proposed for exclusion, on,among other factors,the specific species or critical habitat,and would because the benefits of exclusion were timing and location of the action not be required for actions on non- found to outweigh the benefits of relative to seasonal presence of essential Federal and private lands that are not inclusion of these areas.Specifically, features or seasonal use of critical carried out,funded,or authorized by a the limited conservation benefits of habitat by the listed species for essential Federal agency. designating the relevant specific areas life history functions.While the (i.e.,Unit 7—Kenai Peninsula Area, requirement to consult on an action that Activities That May Be Affected Unit 9—Northeastern Gulf of Alaska, may affect critical habitat applies ESA section 4(b)(8)requires,to the and Unit 19—California south Coast regardless of the season,NMFS maximum extent practicable,in any Area)were found to be outweighed by addresses the varying spatial and proposed regulation to designate critical the economic impact of designating temporal considerations when habitat,an evaluation and brief 54382 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules description of those activities(whether occur in each area;(3)how medium proposed designations received during public or private)that may adversely conservation value areas were assessed the comment period.Accordingly,the modify such habitat or that may be and weighed relative to the impacts final decision may differ from this affected by such designation.A wide associated with designating these proposed rule. variety of activities may affect the particular areas(i.e.,should the Public Hearings proposed critical habitat and may be designation include particular medium subject to the ESA section 7 conservation-value areas or exclude Agency regulations at 50 CFR consultation processes when carried them?);(4)the boundaries of the 424.16(c)(3)require the Secretary to out,funded,or authorized by a Federal specific areas and of the proposed promptly hold at least one public agency.These include:(1)Federal critical habitats;(5)the nearshore hearing if any person requests one fisheries,(2)oil and gas activities distribution of humpback whales in within 45 days of publication of a (including seismic surveys),(3) waters off Alaska,and whether the proposed rule to designate critical alternative energy development,(4)in- benefits of excluding areas closest to habitat.Public hearings provide the water construction(including dredging shore outweigh the benefits associated opportunity for interested individuals and offshore mining),(5)vessel traffic with designating these areas;and,if and parties to give comments,exchange (specifically,activities related to nearshore areas are excluded,what information and opinions,and engage in establishment of the shipping lanes would be an appropriate distance;(6) a constructive dialogue concerning this established by the USCG),(6) information regarding potential benefits proposed rule.We encourage the aquaculture,(7)military activities,(8) of designating any particular area as public's involvement in such ESA LNG terminal activities,(9)space critical habitat;(7)information matters.Public hearings and the dates vehicle and missile launches,(10)water regarding the types of Federal actions and specific locations for these hearings quality management(including that may trigger an ESA section 7 will be announced in a separate Federal pesticide registration,establishment of consultation and the possible Register notice.Requests for additional water quality standards,and Clean modifications that may be required of public hearings must be made in writing Water Act general permits),(11)U.S. those activities;(8)information (see ADDRESSES)by November 25,2019. Forest Service activities(related to regarding current or planned activities timber and forest management),and(12) in the areas proposed as critical habitat, References Cited inland activities(including power plant including both Federal and non-Federal A complete list of all references cited operations,land management pesticide/ activities,that may be impacted by the in this proposed rule can be found on herbicide application,and NPDES proposed critical habitat designation;(9) the Federal e-Rulemaking Portal at permitting). any foreseeable economic,national www.regulations.gov/ Private or non-Federal entities may security,Tribal,or other relevant impact #!docketDetail;D=NOAA-NMFS-2019- also be affected by the proposed critical resulting from the proposed 0066,and is available upon request from habitat designation if there is a Federal designations,including costs arising the NMFS Office of Protected Resources nexus in that a Federal permit is from project delays due to section 7 (see ADDRESSES). required,Federal funding is received,or consultations;(10)whether any data the entity is involved in or receives used in the economic analysis needs to Classifications benefits from a Federal project.These be updated;(11)additional costs arising National Environmental Policy Act activities would need to be evaluated specifically from humpback whale with respect to their potential to destroy p y v We have determined that an or adversely modify humpback whale critical habitat that have not been environmental analysis as provided for critical habitat.As noted in the solicited identified in the Draft Economic under the National Environmental comments section below,NMFS also Analysis or improved costs estimates for policy Act of 1969 for critical habitat requests information on the types of activities that are included in the Draft designations made pursuant to the ESA non-Federal activities that may be Economic Analysis;(12)additional is not required.See Douglas County v. affected by this rulemaking. information regarding impacts on small Babbitt,48 F.3d 1495(9th Cir. 1995), businesses and Federally recognized cert.denied,116 S.Ct.698(1996). Public Comments Solicited tribes that were not identified in the To ensure the final action resulting Draft Economic Analysis or the initial Regulatory Flexibility Act from this proposed rule will be as regulatory flexibility analysis;and,(13) Under the Regulatory Flexibility Act accurate and effective as possible,we any information relevant to potential (RFA)(5 U.S.C.601 et seq.),as amended solicit comments and information from exclusions of particular areas that are by the Small Business Regulatory the public,other concerned government smaller than those considered(e.g.,a Enforcement Fairness Act(SBREFA)of agencies,Federally recognized tribes particular area encompassing the San 1996,whenever an agency publishes a and organizations,the scientific Francisco Traffic Separation Scheme). notice of rulemaking for any proposed community,industry,non-governmental To the extent possible,we request that or final rule,it must prepare and make organizations,and any other interested the data or information provided be available for public comment a party concerning the proposed clearly specific to one or more of the regulatory flexibility analysis that designations of critical habitat for the DPS addressed in this proposed rule. describes the effects of the rule on small WNP,CAM,and MX DPSs of humpback You may submit your comments and entities(i.e.,small businesses,small whales.In particular,we are interested materials concerning this proposal by organizations,and small government in data and information regarding the any one of several methods(see jurisdictions).We have prepared an following:(1)The.distribution and_ ADDRESSES).The proposed rule and initial regulatory flexibility analysis habitat use of whales of the WNP,CAM, supporting documentation can be found (IRFA),which is provided in chapter 5 or MX DPS in coastal waters within the on the Federal e-Rulemaking Portal at of the Draft Economic Analysis(IEc North Pacific;(2)the relative www.regulations.gov/ 2019a).The IRFA describes the conservation value of the 19 specific #!docketDetail;D=NOAA-NMFS-2019- economic impact this proposed rule,if units of critical habitat to the specific, 0066.In preparing the final rule,we will adopted,would have on small entities. relevant DPSs of humpback whales that consider all comments pertaining to the The IRFA is summarized below. Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54383 As discussed previously in this activity to ensure that impacts to the part of future ESA section 7 preamble and in our IRFA(see chapter habitat and features have been consultations.Primarily,consultations 5 of IEc 2019a),the designation of minimized. are between NMFS and Federal action critical habitat is required under the The proposed rule will not duplicate agencies to evaluate the potential for ESA,and in this particular case,is also or conflict with any other laws or projects and activities to result in required pursuant to a court-approved regulations.However,the protection of adverse modification of critical habitat. settlement agreement.Section 4 of the listed species and habitat under critical Therefore,most incremental impacts are ESA,requires us to designate,to the habitat may overlap other sections of the borne by NMFS and other Federal maximum extent prudent and ESA.The protections afforded to agencies and not by private entities or determinable,the specific areas that threatened and endangered species and small governmental jurisdictions. contain the physical or biological their habitat are described in section 7, However,some consultations may features essential to the conservation of 9,and 10 of the ESA.A final include third parties(e.g.,project the species and that may require special determination to designate critical proponents or landowners)that may be management considerations or habitat requires Federal agencies to small entities. protections.This proposed critical consult,pursuant to section 7 of the The best available information was habitat rule does not directly apply to ESA,with NMFS on any activities the used to identify the potential impacts of any particular entity,small or large.The Federal agency funds,authorizes,or critical habitat on small entities. rule would operate in conjunction with carries out,including permitting, However,there are uncertainties that ESA section 7(a)(2),which requires that approving,or funding non-Federal complicate quantification of these Federal agencies ensure,in consultation activities(e.g.,a Clean Water Act, impacts,particularly with respect to the with NMFS,that any action they Section 404 dredge or fill permit from extent to which the quantified impacts authorize,fund,or carry out is not likely USACE).The requirement to consult is may be borne by small entities.As a to jeopardize the continued existence of to ensure that any Federal action result,the IRFA employed a listed species or destroy or adversely authorized,funded,or carried out will conservative approach(i.e.,more likely modify critical habitat.Consultations not likely jeopardize the'continued to overestimate than underestimate may result in economic impacts to existence of any endangered or impacts to small entities)in assuming Federal agencies and proponents of threatened species or result in the that the quantified costs that are not proposed actions(e.g.,permittees, destruction or adverse modification of borne by the Federal government are applicants,grantees).Those economic critical habitat.The incremental impacts borne by small entities.Because the impacts may be in the form of contemplated in this IRFA are expected critical habitat under consideration administrative costs of participating in a to result from the critical habitat occurs in marine waters,the analysis section 7 consultation and,if the designation and not from other Federal also focused on small entities located in consultation results in required regulations. counties along the Pacific Coast of measures to protect critical habitat, While we do not here prejudge the California,Oregon,and Washington, project modification costs. outcome of any interagency and in coastal counties in Alaska. consultation,the best available For all activities categories relevant to This proposed rule will not impose information supports the conclusion this analysis except in-water and coastal any recordkeeping or reporting that for most,if not all,of the Federal construction(i.e.,commercial fishing, requirements on small entities.The activities predicted to occur over the oil and gas,alternative energy, critical habitat designations would time horizon of the analysis(i.e.,in the aquaculture,I.NG facilities,water require that Federal agencies initiate a next 10 years),if the effects to critical quality management,and inland section 7 consultation to ensure their habitat will be adverse and require activities),the expected costs borne by actions do not destroy or adversely formal consultation,those effects are third parties in related industries is modify critical habitat.During formal also expected to constitute adverse expected to be negligible.For each of consultation under the ESA,there may effects to listed humpback whales or these activities,two or fewer be communication among NMFS,the other listed species or designated consultations are anticipated per year action agency,and a third party critical habitat,either-directly or spread across the area that was under participant applying for Federal funding indirectly.Thus,as discussed consideration for humpback whale or permitting in an effort to minimize previously,projects that might critical habitat.As a result,the potential adverse impacts to the habitat adversely affect the proposed essential annualized incremental costs that may or essential feature.Communication feature and proposed humpback whale be borne by small entities in related may include written letters,phone calls, critical habitat are not expected to result industries is estimated to be less than and/or meetings.Project variables such in incremental project modification $2,200.The analysis,therefore,focused as the type of consultation,the location costs.Therefore,the only costs of this on the costs of consultations on in-water of the activity,impacted essential class of actions that are attributable to and coastal construction activities, features,and activity of concern,may in this rule are the administrative costs of which occur more frequently within the turn dictate the complexity of these adding critical habitat analyses to a critical habitat area.As described in interactions.Third party costs may consultation that would otherwise occur chapter 5 of the DEA(lEc 2019a), include administrative work,such as anyway. approximately eight consultations per cost of time and materials to prepare for The designation of critical habitat year focus on in-water and coastal letters,calls,or meetings.The cost of humpback whales is expected to have a construction activities.The majority of analyses related to the activity and limited economic impact,on the order these(six per year)are concentrated associated reports may be included in of$6,90049,700 annualized over ten within critical habitat Unit 10 in Alaska. these administrative costs.In addition, years(at a 7 percent discount rate)for As such,the analysis focused on the following the section 7 consultation the WNP DPS,$42,000—$43,000 for the small businesses and government process,as a requirement of the funding CAM DPS,and$64,000—$75,000 for the jurisdictions in the region surrounding or permit received from the Federal MX DPS.The nature of these costs are critical habitat Unit 10. action agency,entities may be required administrative efforts to consider Relevant businesses in North to monitor progress during the said potential for adverse modification as American Industry Classification 54384 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules System(NAICS)included the following the ESA section 3 definition of critical to the responsible agencies in the industry sectors:Sand,Gravel,Clay and habitat.However,following our aforementioned states for review. Ceramic Mining and Quarrying;Water consideration of probable national By operation of Alaska State law,the and Sewer Line and Related Structures security,economic,and other relevant Federally approved Alaska Coastal Construction;Oil and Gas Pipeline and impacts of designating all the specific Management Program expired on July 1, Related Structures Construction;Power areas,we rejected this alternative.In 2011,resulting in a withdrawal from and Communication Line and Related particular,and as described in our Draft participation in the CZMA's National Structures Construction;Highway, Section 4(b)(2)Report,we determined Coastal Management Program(76 FR Street,and Bridge Construction;Other that the benefits of excluding some 39857,July 7,2011).The CZMA Federal Heavy and Civil Engineering specific areas outweighed the consistency provision,section 307,no Construction;Dredging and Surface conservation benefits of designating longer applies in Alaska. Cleanup Activities.Along with private those specific areas,and thus,pursuant paperwork Reduction Act businesses,there also may be to section 4(b)(2)of the ESA,we are consultations for which small exercising our discretion to propose to The purpose of the Paperwork governmental jurisdictions(i.e., exclude some of the specific areas for Reduction Act is to minimize the jurisdictions with populations of less each of the three DPSs(see NMFS paperwork burden for individuals,small than 50,000 people)are the third parties 2019b).A third alternative of businesses,educational and nonprofit participating in the consultations rather designating a subset of the specific areas institutions,and other persons resulting than businesses.The IRFA identified 21 meeting statutory definition of critical from the collection of information by or small government jurisdictions adjacent habitat was consideredand is the for the Federal government.This to critical habitat units that may be preferred alternative.As stated proposed rule does not contain any new involved in future consultations.Seven previously,under section 4(b)(2)of the or revised collection of information. of these areas Juneau Borough,Sitka ESA,we have the discretion to exclude This rule,if adopted,would not impose Borough,Haines Borough,Ketchikan a particular area from designation asrecordkeeping or reporting requirements Gateway Borough,Prince of Wales- critical habitat even though it meets the on State or local governments, Outer Ketchikan Census Area,Skagway- definition of"critical habitat"if the individuals,businesses,or Hoonah-Angoon Census Area,and benefits of exclusion(i.e.,the impacts organizations. Wrangell-Petersburg Census Area—are that would be avoided if an area was Unfunded Mandates Reform Act(2 adjacent to critical habitat Unit 10. excluded from the designation) U.S.C. 1501 et seq.) Ultimately,based on the IRFA,up.to outweigh the benefits of designation The designation of critical habitat eight small entities per year may bear (i.e.,the conservation benefits to the does not impose an"enforceable du costs associated with participation in humpback whale if an area was on state,locl,tribal governments,or critical kaon r The ngtalhumpback annualized ale designated),so long as exclusion of the the private sector antherefore does not area will not result in extinction of the qualify as a Federal mandate.In general, administrative costs that may be borne species.Exclusion under section 4 )(2) q by these small entities(businesses or p ro a Federal mandate is a provision in governments)engaged in(businesses water and of the ESA of one or more of the areas legislation,statute,or regulation that considered for designation would would impose "enforceable duty" coastal construction activities is$4,900 Pose an Y' (discounted at seven percent).Across all reduce the total impacts of designation. upon non-Federal governments,or the This alternative—which is the approach private sector and includes both in-water and coastal construction taken in the proposed rule—would NAICS codes,the average annual p p Federal intergovernmental mandates" revenues are$1.3 million for the small result in a critical habitat designation and"Federal private sector mandates." businesses identified.As a result,the that provides for the conservation of the This proposed rule will not produce total estimated annualized species while potentially reducing the a Federal mandate.The designation of administrative costs of$4,900 represent economic,national security and other critical habitat does not impose an less than 0.4 percent of average annual relevant impacts on entities. enforceable or legally-binding duty on revenues at these businesses. Coastal Zone Management Act non-Federal government entities or The RFA,as amended by SBREFA, private parties.The only regulatory requires us to consider alternatives to Under section 307(c)(1)(A)of the effect is that Federal agencies must the proposed regulation that will reduce Coastal Zone Management Act(CZMA) ensure that their actions do not destroy the impacts to small entities.We (16 U.S.C. 1456(c)(1)(A))and its or adversely modify critical habitat considered three alternatives.First,we implementing regulations,each Federal under section 7 of the ESA.Non-Federal considered the alternative of not activity within or outside the coastal entities that receive Federal funding, designating critical habitat for any of the zone that has reasonably foreseeable assistance,permits or otherwise require three humpback whale DPSs.This effects on any land or water use or approval or authorization from a Federal alternative would impose no additional natural resource of the coastal zone agency for an action,may be indirectly economic,national security or other shall be carried out in a manner which impacted by the designation of critical relevant impacts.However,after is consistent to the maximum extent habitat,but the Federal agency has the compiling and reviewing the biological practicable with the enforceable policies legally binding duty to avoid information for these DPSs,we rejected of approved State coastal management destruction or adverse modification of this alternative because it would violate programs.We have determined that the critical habitat.We do not find that this section 4 of the ESA,which specifically proposed designation of critical habitat proposed rule would significantly or requires that we designate critical designation for the CAM and MX DPSs uniquely affect small governments habitat to the maximum extent prudent of humpback whales is consistent to the because it is not likely to produce a and determinable based on maximum extent practicable with the Federal mandate of$100 million or consideration of the best available enforceable policies of the approved greater in any year;that is,it is not a scientific information.A second Coastal Zone Management Programs of "significant regulatory action"under alternative we considered was to Washington,Oregon,and California. the Unfunded Mandates Reform Act.In propose to designate all areas meeting This determination has been submitted addition,the designation of critical Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54385 habitat imposes no obligations on local, However,in November 2018,we discretion in determining the state or tribal governments.Therefore,a received requests for technical-to- appropriate process and level of peer Small Government Agency Plan is not technical meetings from the Quileute review.Stricter standards were required. Tribe and the Quinault Indian Nation. established for the peer review of Executive Order 13175,Consultation A technical meeting with "highly influential scientific and Coordination With Indian Tribal representatives from the Quinault assessments,"defined as information Governments Indian Nation was held on December whose"dissemination could have a 14,2018,to share information and potential impact of more than$500 The longstanding and distinctive discuss concerns regarding a million in any one year on either the relationship between the Federal and designation of critical habitat for public or private sector or that the tribal governments is defined by humpback whales.Immediately dissemination is novel,controversial,or treaties,statutes,executive orders, following that meeting,we provided precedent-setting,or has significant judicial decisions,and co-management additional materials and maps to the interagency interest." agreements,which differentiate tribal Quinault representatives.We did not The information in the Draft governments from the other entities that receive any further correspondence from Biological Report(NMFS 2019a)and the deal with,or are affected by,the Federal the Quinault Indian Nation.We made DEA(IEc 2019a)supporting this Government.This relationship has several attempts to schedule the proposed critical habitat rule are given rise to a special Federal trust requested meeting with the Quileute considered influential scientific responsibility involving the legal Tribe;however,we did not receive information and subject to peer review. responsibilities and obligations of the further correspondence in response to To satisfy our requirements under the United States toward Indian tribes and our last effort to schedule a meeting.If OMB Bulletin,we obtained independent the application of fiduciary standards of we receive any additional requests in peer review of the information used to due care with respect to Indian lands, response to this proposed rule,we will draft both of these reports,and tribal trust resources,and the exercise of individually respond to each request incorporated the peer reviewer tribal rights.Executive Order 13175 on prior to issuing a final rule.However,at comments as applicable into the draft Consultation and Coordination with this time and on the basis of the reports prior to dissemination of this Indian Tribal Governments outlines the foregoing communications,it does not proposed rulemaking.Comments responsibilities of the Federal appear that this designation will have received from peer reviewers of the DEA Government in matters affecting tribal "tribal implications"(defined as having and the Draft Biological Report are interests.Section 161 of Public Law a substantial direct effect on one or available online at https.11 108-199(188 Stat.452),as amended by more Indian tribes,on the relationship www.cio.noaa.gov/services-programs/ section 518 of Public Law 108-447(118 between the Federal Government and prplans/ID404.htm1 and https:// Stat.3267),directs all Federal agencies Indian tribes,or on the distribution of www.cio.noaa.gov/services-programs/ to consult with Alaska Native power and responsibilities between the prplans11D400.html,respectively. corporations on the same basis as Indian Federal Government and Indian tribes) Executive Order 12630, Takings tribes under E.O.13175. such as would trigger a requirement to As all of the specific areas under conduct Government to Government Under E.O. 12630,Federal agencies consideration as potential critical consultations. must consider the effects of their actions habitat area were located seaward of the li on constitutionally protected private coast line,we preliminarily found that formation Quality Act and Peer property rights and avoid unnecessary there were no Indian lands subject to Review takings of property.A taking of property consideration for possible exclusion. The data and analyses supporting this includes actions that result in physical However,the areas we were considering proposed action have undergone a pre- invasion or occupancy of private as potential critical habitat overlap with dissemination review and have been property that substantially affect its areas used by Indian tribes and Alaska determined to be in compliance with value or use.In accordance with E.O. Natives for subsistence,cultural,usual applicable information quality 12630,the proposed rule does not have and accustomed fishing,or other guidelines implementing the significant takings implications.The purposes.Thus,consistent with the Information Quality Act(Section 515 of designation of critical habitat affects Secretarial Order(#3206),American Pub.L.106-554). only Federal agency actions.Further,no Indian Tribal Rights,Federal-Tribal On December 16,2004,the Office of areas of private property exist within Trust Responsibilities,and the Management and Budget(OMB)issued the proposed critical habitat and Endangered Species Act,and Executive its Final Information Quality Bulletin therefore none would be affected by this Order 13175,Consultation and for Peer Review(Bulletin).The Bulletin action.Therefore,a takings implication Coordination with Indian Tribal was published in the Federal Register assessment is not required. Governments(2000),we notified Native on January 14,2005(70 FR 2664).The corporations and tribal governments primary purpose of the Bulletin is to Executive Order 12866,Regulatory early on in the process to develop this improve the quality and credibility of Planning and Review,and Executive proposed rule to provide time for scientific information disseminated by Order 13771,Reducing Regulation and meaningful consultation and/or the Federal government by requiring Controlling Regulatory Costs collaboration with appropriate staffs to peer review of"influential scientific OMB has determined that this inform any proposed critical habitat information"and"highly influential proposed rule is significant for purposes designation.Specifically,we contacted scientific information"prior to public of E.O. 12866 review.A Draft Economic potentially affected tribes and Native dissemination."Influential scientific Report(IEc 2019a)and Draft ESA groups by mail and offered them the information"is defined as"information Section 4(b)(2)Report(NMFS 2019b) opportunity to consult on and discuss the agency reasonably can determine have been prepared to support the any concerns regarding the designation will have or does have a clear and exclusion process under section 4(b)(2) of critical habitat for humpback whales. substantial impact on important public of the ESA and our consideration of We received no requests for policies or private sector decisions." alternatives to this rulemaking as consultation in response to this mailing. The Bulletin provides agencies broad required under E.O.12866.To review 54386 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules these documents,see the ADDRESSES Overall,economic impacts are expected Executive Order 13211,Energy Supply, section above. to be small and largely associated with Distribution,and Use Based on the Draft Economic Report the administrative costs borne by E.O.13211 requires agencies to (IEc 2019a),the total estimated present Federal agencies.These impacts are also prepare a Statement of Energy Effects value of the quantified incremental not additive with those associated with when undertaking a significant energy impacts of the proposed critical habitat the WNP and CAM DPSs,as the areas action.Under E.O.13211,a significant designation for the WNP DPS are proposed for the NIX DPS are almost energy action means any action by an approximately$61,000—$85,000 over entirely overlapping with areas being agency that is expected to lead to the the next 10 years.Assuming a 7 percent proposed for another DPS.Because the promulgation of a final rule or discount rate on an annualized basis, proposed designation for the this DPS regulation that is a significant regulatory the impacts are estimated to be$6,900— extends over all other areas proposed as action under E.O.12866 and is likely to $9,700 per year.These total impacts critical habitat for the other two DPSs, have a significant adverse effect on the include the additional administrative the estimated economic impacts supply,distribution,or use of energy. efforts necessary to consider critical associated with the proposed We have considered the potential habitat in section 7 consultations.These designation for the MX DPS actually impacts of this proposed action on the impacts are also not additive with those represent the total estimated impacts supply,distribution,or use of energy associated with the MX DPS,as the across all DPSs.As with the other DPSs, and find that the designation of critical areas proposed for the WNP DPS are there are expected beneficial economic habitat would not have impacts that entirely overlapping with areas being impacts of designating critical habitat exceed the thresholds identified in proposed for the NIX DPS.Overall, for the MX DPS;however,insufficient OMB's memorandum M-01-27, economic small and largely acts ssociated expected with the data are available to monetize those Guidance for Implementing E.O. 13211. administrative costs borne by Federal impacts(see Benefits of Designation Thus,this proposed designation,if agencies.While there are expected finalized,would not have a significant beneficial economic impacts of This proposed rulemaking is expected adverse effect within the meaning of the designating critical habitat for the WNP to be considered"regulatory"under executive order.The energy impacts DPS,insufficient data are available to E.O.13771. analysis is presented in chapter 5 of the monetize those impacts(see Benefits of Executive Order 13132,Federalism Draft Economic Analysis(IEc 2019a). Designation section). List of Subjects Based on the Draft Economic Report Executive Order 13132 requires (IEc 2019a),the total estimated present agencies to take into account any 50 CFR Part 223 value of the quantified incremental federalism impacts of regulations under Endangered and threatened species, impacts of the proposed critical habitat development.It includes specific Exports,Imports,Transportation. designation for the CAM-DPS are consultation directives for situations in approximately$370,000—$380,000 over Which a regulation may preempt state 50 CFR Part 224 the next 10 years.Assuming a 7 percent law or impose substantial direct Endangered and threatened species, discount rate on an annualized basis, compliance costs on state and local Exports,Imports,Transportation. the impacts are estimated to be$42,000— governments(unless required by $43,00statute).Pursuant to E.O.13132,we 50 CFR Part 226 include per year.These total impacts determined that this proposed rule does Endangered and threatened species. include the additional administrative P PP efforts necessary to consider critical not have significant federalism effects Dated:September 25,2019. habitat in section 7 consultations.These and that a federalism assessment is not Samuel D.Rauch III, impacts are also not additive with those required.The designation of critical Deputy Assistant Administratorfor associated with the MX DPS,as the habitat directly affects only the Regulatory Programs,National Marine areas proposed for the CAM DPS are responsibilities of Federal agencies.As Fisheries Service. entirely overlapping with areas being a result,the proposed rule does not have For the reasons set out in the proposed for the MX DPS.Overall, substantial direct effects on the States, preamble,50 CFR parts 223,224,and economic impacts are expected to be on the relationship between the national 226 are proposed to be amended as small and largely associated with the government and the States,or on the follows: administrative costs borne by Federal distribution of power and agencies.While there are expected responsibilities among the various PART 223—THREATENED MARINE beneficial economic impacts of levels of government,as specified in the AND ANADROMOUS SPECIES designating critical habitat for the CAM Order. State or local governments may DPS,insufficient data are available to be indirectly affected by the proposed ■ 1.The authority citation for part 223 monetize those impacts(see Benefits of designation if they require Federal continues to read as follows: Designation section). funds or formal approval or Authority:16 U.S.C.1531-1543;subpart B, Based on the Draft Economic Report authorization from a Federal agency as §223.201-202 also issued under 16 U.S.C. (IEc 2019a),the total estimated present a prerequisite to conducting an action. 1361 et seq.;16 U.S.C.5503(d)for value of the quantified incremental In these cases,the State or local §223.206(d)(9). impacts of the proposed critical habitat government agency may participate in E 2,In§223.102,in paragraph(e),add designation for the NIX DPS are the section 7 consultation as a third a new citation,in alphabetical order, approximately$570,000—$660,000 over party.However,in keeping with under the critical habitat column for the the next 10 years.Assuming a 7 percent Department of Commerce policies and "whale,humpback(Mexico DPS)" discount rate on an annualized basis, consistent with ESA regulations at 50 under Marine Mammals to read as the impacts are estimated to be$64,000— CFR 424.16(c)(1)(ii),we will request follows: $75,000 per year.These total impacts information for this proposed rule from include the additional administrative the appropriate state resources agencies §223.102 Enumeration of threatened efforts necessary to consider critical in Alaska,Washington,Oregon,and marine and anadromous species. habitat in section 7 consultations. California. Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54387 (e) SpeciesCitation(s)for listing Common name Scientific name Description of listed entity determination(s) Critical habitat ESA rules Marine Mammals Whale,humpback Megaptera Humpback whales that breed or winter in the 81 FR 62260,Sept.8, [Insert 226.227]........... 223.213 (Mexico DPS). novaeangliae. area of mainland Mexico and the 2016. Revillagigedo Islands,transit Baja California, or feed in the North Pacific Ocean,primarily off Califomia-Oregon, northern Washington- southern British Columbia, northern and western Gulf of Alaska and East Bering Sea. 'Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722; February 7, 1996), and evolutionarily significant units(ESUs)(for a policy statement,see 56 FR 58612;November 20,1991). PART 224—ENDANGERED MARINE ■4.In§224.101,in the table in under the Marine Mammals heading to AND ANADROMOUS SPECIES paragraph(h),add a new citation,in read as follows: ■ 3.The authority citation for part 224 alphabetical order,under the critical §224.101column for"Whale,humpback §224.101 Enumeration of endangered continues to read as follows: p marine and anadromous species. (Central America DPS)"and"Whale, Authority:16 U.S.C.1531-1543 and 16 humpback(Western North Pacific DPS) U.S.C.1361 et seq. (h) * " Species' Citation(s)for listing Common name Scientific name Description of listed entity determinations) Critical habitat ESA rules Marine Mammals Whale,humpback(cen- Megaptera Humpback whales that breed in waters off 81 FR 62260,Sept.8, (Insert 226.2271. tral America DPS). novaeangliae. Central America in the North Pacific Ocean 2016. and feed along the west coast of the United States and southern British Columbia. Whale,humpback Megaptera Humpback whales that breed or winter in the 81 FR 62260,Sept.8, (Insert 226.2271. (Western North Pa- novaeangliae. area of Okinawa and the Philippines in the 2016. cific DPS). Kuroshio Current (as well as unknown breeding grounds in the Western North Pa- cific Ocean),transit the Ogasawara area, or feed in the North Pacific Ocean,primarily in the West Bering Sea and off the Russian coast and the Aleutian Islands. 'Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units(ESUs)(for a policy statement,see 56 FR 58612,November 20,1991). 2Jurisdiction for sea turtles by the Department of Commerce,National Oceanic and Atmospheric Administration,National Marine Fisheries Service,is limited to tur- tles while in the water. PART 226—DESIGNATED CRITICAL §226.227 Critical habitat for the Central clarified by the textual descriptions in HABITAT America,Mexico,and Western North Pacific this section,are the definitive source for distinct population segments(DPSs)of determining the critical habitat ■5.The authority citation of part 226 humpback whales(Megaptera boundaries. continues to read as follows: novaeangliae). (a)List of States and Counties.Critical Authority:16 U.S.C.1533. Critical habitat is designated for the habitat is designated in waters off the Central America,Mexico,and Western coast of the following states and ■6.Add§226.227,to read as follows: North Pacific humpback whale DPSs as counties for the listed humpback whale described in this section.The maps, DPSs: DPS State-counties (1)Central America ................. (i)WA—Clallam,Jefferson,Grays Harbor, Pacific. (ii)OR—Clatsop,Tillamook, Lincoln, Lane, Douglas, Coos,and Curry. (iii) CA—Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Francisco, San Mateo, Santa Cruz, Monterey, San Luis Obispo,Santa Barbara, Ventura. (2)Mexico ................................ (i) AK—Bristol Bay, Lake and Peninsula, Aleutians East, Aleutian West, Kodiak Island, Kenai Peninsula, Valdez-Cordova, unorganized boroughs, Skagway-Hoonah-Angoon, Haines, Juneau, Sitka, Petersburg, Wrangell, Ketchikan Gateway. (ii)WA—Clallam,Jefferson,Grays Harbor, Pacific. 54388 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules DPS State-counties (iii)OR—Clatsop,Tillamook,Lincoln,Lane,Douglas,Coos,and Curry. (iv)CA—Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Francisco, San Mateo,Santa Cruz, Monterey, San Luis Obispo,Santa Barbara,Ventura. (3)Western North Pacific ........ AK—Bristol Bay,Lake and Peninsula,Aleutians East,Aleutian West,Kodiak Island,Kenai Peninsula. (b) Critical habitat boundaries for the southward through Samalga Pass to a side of the Aleutian Islands,the seaward Central America DPS.Critical habitat boundary drawn along the 2,000-m boundary of the critical habitat is for the Central America DPS includes all isobath on the south side of the islands. defined by a line extending due west marine waters within the designated This isobath forms the southern from Egegik(at 58°14'N,157028'W)out areas as shown by the maps,including boundary of the critical habitat, to 58'14'N,162'0'W,then southwest to those prepared and made available by eastward to 164°25'W.The 1,000-m 57°25'N,163029',then southward to NMFS pursuant to 50 CFR 424.18. isobath forms the offshore boundary for 55041 N,162'41'W;and from this point, (1) Washington.The nearshore the remainder of the critical habitat west to 55041'N,169°30'W,then boundary is defined by the 50-m (along Aleutian Island and in the Gulf southward through Samalga Pass to a isobath,and the offshore boundary is of Alaska areas),except in Southeast boundary drawn along the 2,000-m defined by the 1,200-m isobath relative Alaska,where the offshore boundary isobath on the south side of the islands. to MLLW.Critical habitat also includes extends out the 2,000-m isobath.Critical This isobath forms the southern waters within the U.S.portion of the habitat extends into Cook Inlet as far boundary of the critical habitat, Strait of Juan de Fuca to an eastern north as 60020'N,just south of Kalgin eastward to 164025'W.From this point- boundary boundary line at Angeles Point at Island. the 1,000-m isobath forms the offshore 123033'W. (2)Washington.The nearshore boundary,which extends eastward to (2) Oregon.The nearshore boundary is boundary is defined by the 50-m 158°39'W.Critical habitat also includes defined by the 50-m isobath.The isobath,and the offshore boundary is the waters around Kodiak Island and the offshore boundary is defined by the defined by the 1,200-m isobath relative Barren Islands.The western boundary 1,200-m isobath relative to MLLW; to MLLW.Critical habitat also includes for this area runs southward along except,in areas off Oregon south of waters within the U.S.portion of the 154054'W to the 1,000-m depth contour, 42010',the offshore boundary is defined Strait of Juan de Fuca to an eastern and then extends eastward to a by the 2,000-m isobath. boundary line at Angeles Point at bound 'at 150'40'W.The area also (3)California.The nearshore 123033'W. relative boundary MLLW exis defined cept,from38040'N defined isobath (3) rby the 50 m isobath.Thon.The nearshore boundary is IInlet where ends ritis bounded by a lineward to the mouth that that k to 36°00'N,the nearshore boundary is offshore boundary is defined by the extends from Cape Douglas across the defined by the 15-m isobath relative to 1,200-m isobath relative to MLLW; inlet to Cape Adam. MLLW;and from 36000'N to 34030'N, except,in areas off Oregon south of (e)Essential feature.Prey species, the nearshore boundary is defined by 42010',the offshore boundary is defined primarily euphausiids and small pelagic the 30-m isobath relative to MLLW. by the 2,000-m isobath. schooling fishes of sufficient quality, North of 40°20'N,the offshore (4)California.The nearshore abundance,and accessibility within boundary of the critical habitat is boundary is defined by the 50-m isobath humpback whale feeding areas to defined by a line corresponding to the relative to MLLW except,from 38040'N support feeding and population growth. 2,000-m isobath,and from 40020'N to to 36'00'N,the nearshore boundary is (f)Sites owned or controlled by the 38040'N,the offshore boundary is defined by the 15-m isobath relative to Department oDef Dep f ense.Critical habitat defined by the 3,000-m isobath.From MLLW;and from 36°00'N to 34030'N, does not include the following 38040'N southward,the remaining areas the nearshore boundary is defined by have an offshore boundary defined by a the 30-m isobath relative to MLLW. Particular areas owned or controlled by the Department of Defense,or line corresponding to the 3,700-m North of 40°20'N,the offshore isobath. boundary of the critical habitat is designated for its use,where they (c) Critical habitat boundaries for defined by a line corresponding to the overlap with the areas described in paragraph(b)of this section: Mexico DPS.Critical habitat for the 2,000-m isobath,and from 40020'N to Mexico DPS of humpback whales 38'40'N,the offshore boundary is (1)Pursuant to ESA section 4(a)(3)(B), includes all marine waters within the defined by the 3,000-m isobath.From all areas subject to the Naval Base designated areas as shown by the maps, 38040'N southward,the remaining areas Ventura County,Point Mugu,CA,and including those prepared and made have an offshore boundary defined by a the Naval Outlying Field,San Nicolas available by NMFS pursuant to 50 CFR line corresponding to the 3,700-m Island,CA approved Integrated Natural 424.18. isobath. Resource Management Plans(INRMPs); (1)Alaska.The nearshore boundaries (d)Critical habitat boundaries for (2)Pursuant to ESA section 4(b)(2), are generally defined by the 1-m isobath Western North Pacific DPS.Critical the Quinault Range Site(QRS)with an relative to mean lower low water habitat for the Western North Pacific additional 10-km buffer around QRS (MLLW).In Bristol Bay and on the north DPS of humpback whales includes all and the Southeast Alaska Acoustic side of the Aleutian Islands,the seaward marine waters within the designated Measurement Facility(SEAFAC). boundary of the critical habitat is areas as shown by the maps,including (g)Maps of humpback whale critical defined by a line extending due west those prepared and made available by habitat. from Egegik(at 58°14'N,157028'W)out NMFS pursuant to 50 CFR 424.18. to 58014'N,16200'W,then southwest to (1)Alaska.The nearshore boundaries (1)Overview map of critical habitat 57025'N,163029',then southward to are generally defined by the 1-m isobath for the Central America DPS of 55041 N,162041'W;and from this point, relative to mean lower low water humpback whales: west to 55041'N,169°30'W,then (MLLW).In Bristol Bay and on the north BIWNG CODE 3510-=-P Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54389 130`W 125°W 120`W 115'W Critical Habitat for the Central America DPS of Humpback Whales t - �a3irom3a T �•i. — _ zz Critical Habitat _-- INRMPs Quinault Range Site and Buffer Exclusive Economic Zones — =— T= N Nautical Miles 0 50 100 200 130'W 125--W 120'W v') (2)Overview map of critical habitat for the Mexico DPS of humpback whales: 54390 Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 170°W 160°W 150°W 140'W 130°W 120'W Critical Habitat for the Mexico DPS of Humpback Whales F - r o z •r - Caz3da z 0 2 T z c o z c ; Critical Habitat SEAFAC -46 MexrG°- z . INRMPs 4 , Qumault Range Site and Butter Exclusive Economic Zones Nautical Miles �l 0 250 500 1,000 o —T 160°W 150°W 140'W 130°W 120°W 110°W 100°W (3)Overview map of critical habitat for the Western North Pacific DPS of humpback whales: Federal Register/Vol. 84, No. 196/Wednesday, October 9, 2019/Proposed Rules 54391 170'Vv 1601v: 76t1'1fY i Critical Habitat for the Western North_Pacific©PS of Humpback Whales — -- � c r w- 1 z Critical Habitat --�' b ! F--,td-f-Economic Zones Nautical Miles 0 125 250 500 170"N 160°W 150'W 14(6 [FR Doc.2019-21186 Filed 10-8-19;8:45 am] BILLING CODE 3510-22-C BOARD OF MASON COUNTY COMMISSIONERS' BRIEFING MINUTES Mason County Commission Chambers,411 North 5th Street,Shelton,WA Week of October 28,2019 Monday,October 28,2019 9:00 A.M. Support Services—Frank Pinter Commissioners Shutty,Trask and Neatherlin were in attendance. • 2020 take-home vehicle assignments.Jennifer Beierle noted that there are no changes between the 2019 and 2020 assignments. • Levy rates hearing is going to be set November 26,2019.Cmmr. Shutty asked if there was any interest in changing that to a morning meeting.Cmmrs.Neatherlin and Trask said they would like to see if it could be changed. • Frank spoke about a question received by Lisa Frazier,Treasurer regarding admission tax.This tax is on tickets and cover charges for entertainment within Mason County. The code to collect was approved in 1946,but at this time it is not collected.Lisa said some counties actively collect the tax and it is general fund money.Cmmr.Neatherlin suggested doing more research because small business may be negatively impacted if this is put back into action. • Letter to Squaxin Island Tribe-Cmmr.Neatherlin asked the Board to not sign the letter because citing the fact that others will be responsible for the taxes.Discussion was had about each of the parcels and the tax revenue. • Cmmr.Trask brought up the new laws regarding the Marbled Murrelet per DNR. She said there is going to be a lawsuit against DNR by the affected counties and if Mason County wants to join in,there would be no cost.Cmmr.Shutty and Neatherlin asked to discuss this further at another briefing with council. 9:20 A.M. BREAK 9:45 A.M. Community Services—Dave Windom Commissioners Shutty,Trask and Neatherlin were in attendance. • Alex Paysse brought forward a 2020 fee schedule,noting the last increase was in 2013. • Kris Nelsen announced an internal shift • Cmmr. Shutty talked about diversion grants and asked Abe Gardner to speak.Abe spoke about House Bill 1767(HB 1767)and discussed the need for a grant writer to apply for various grants under this HB.The grant amounts vary up to$500,000.The Board was in favor of this project. • Dave spoke about WRIA 22,noting that he is waiting for population estimates for water sheds,but other work has quickly moved forward. • Department of Ecology is meeting with DCD staff regarding definitions of projects. • Dave said he has a goal of having online permits available online December 1,2019. • As of November 1,2019,there will be appointments for single family residences. Staff will do six appointments per day.He discussed how he would like to rotate staff to handle this.The staff has asked to close during lunch in order to make sure all staff is available at the same time.Cmmr.Neatherlin said he is worried to close the building because not all people take lunch at the same time,and residents may want to come in during that time. • Cmmr.Neatherlin talked with Dave about a cold weather shelter in the Belfair area.A new church in the area is offering but isn't sure how to make it possible.Cmmr. Neatherlin said there was discussion years back about the possibility of allocating some funds to a shelter.Dave said he would speak to them about what would be necessary. 10:05 A.M. Public Works—Loretta Swanson Utilities&Waste Management Board of Mason County Commissioners'Briefing Meeting Minutes Week of October 28,2019 Commissioners Shutty,Trask and Neatherlin were in attendance. • Diane Sheesley spoke about the yearly Title VI report.Loretta Swanson mentioned she had one additional page regarding culverts to add.The Board had no questions for staff • Lease agreement with Verizon to lease 1,600 square feet on the Public Works facility property at 100 W.Public Works Drive.Diane said she is aiming to set a hearing on December 3,2019.Cmmr.Neatherlin mentioned that he would like to see about also getting more service in other areas of the county. • Franchise agreement applications for nine private water systems within the county. Loretta noted this is the first batch of applications and several more will be coming forward.She asked to hold a hearing on December 3,2019. • ER&R vehicle purchases made with traffic diversion funds-Loretta and Diane met with CRAB in regards to tracking funds for the vehicles purchased in 2018. $90,000 has been collected for vehicle purchases in 2019.Because no vehicles were purchased in 2019,they asked to use these funds to pay off the 2018 purchases.Other options were discussed by the Board and they asked to have Loretta return next week with more information and final amounts. • Vehicle lease proposal-Loretta said they will be bringing forward a comparison from ER&R in regards to the proposal received from Enterprise for fleet leasing. • Al Eaton spoke about ditch cleaning around the county.He spoke to a complaint from Steve Bloomfield at the October 22,2019 BOCC meeting regarding the size of ditches. 10:55 A.M. Economic Development Council—Jennifer Baria Commissioners Shutty,Trask and Neatherlin were in attendance. • Jennifer Baria discussed a grant application and some upcoming projects including investors and a hotelier who is interested in building.Jennifer and Karen voiced concern in the building permit process and timing per complaints they have received. • The 2019-2020 Community and Economic Development strategies project list was reviewed and it was noted that three projects were completed.Cmmr. Shutty said that Loretta Swanson should be contacting the EDC about this list for possible additions. 11:15 A.M. Assessor's Office—Patti McLean Commissioners Shutty,Trask and Neatherlin were in attendance. • Vicki King brought forward a reclassification appeal for the Real Property Technician.She said that the job description hasn't been updated and needs to be. There was talk about the fact that this position may be eligible for a reclassification if the fact that GIS is part of the job.Vicki was encouraged to speak with Frank Pinter for guidance and return with an updated job description. 2:00 P.M. Coroner—Wes Stockwell Commissioners Shutty,Trask and Neatherlin were in attendance. • Request to replace the Coroner 2006 Van which will be considered part of the leased vehicles. • Maintenance level request for professional services autopsies. The rate is$1500 per autopsy. The Coroner intends to sign a contract with Kitsap County and he anticipates the cost will go down. • Also requested an increase for indigent burials which is$500 per burial. 2:15 P.M. Clerk—Sharon Fogo Commissioners Shutty,Trask and Neatherlin were in attendance. • Request to repost her Chief Deputy position to Range 29. Commissioners will review in a regular briefing. Cmmr.Neatherlin asked Sharon to meet with Frank Pinter. • Sharon is hoping for a legislature change assigning legal advertising costs to the AG's office which would save the County publication costs. Board of Mason County Commissioners'Briefing Meeting Minutes Week of October 28,2019 • Requesting travel/training funding. Cmmr. Shutty would like to hold this for now. • Anticipates an increase in request for passports which generates revenue. • Request for overtime was approved at$1,000. 2:30 P.M. Treasurer—Lisa Frazier Commissioners Shutty,Trask and Neatherlin were in attendance. • Lisa reviewed the minor budget increases she is requesting. Discussion of revenue increases. Agreed to increase sales tax revenue to$5.7M;slight increase to timber sales tax;no increase to bank interest revenue;City/County Assistance will be reviewed later. 3:OOP.M. District Court—Judge Steele/Patsy Robinson Commissioners Shutty,Trask and Neatherlin were in attendance. • Judge Steele reviewed the Court calendar and the impact to the budget. Request to budget 16 hours a week for Court Commissioner and$25,000 for Judge Pro Tem. Request for additional staff was discussed—support staff for Probation Services and Judicial Support Specialist 3. • Patsy reviewed the various budget increases requested. • Maintenance-$13K for Dispute Resolution;$600 copier. The meeting adjourned at 3:45 p.m. Tuesday,October 29,2019 9:00 a.m. Support Services Budgets Commissioners Shutty,Trask and Neatherlin were in attendance. • Frank reviewed the current 2020 budget revenues and expenses with maintenance requests approved to date. The beginning fund balance was adjusted by$2.5M of unexpended budget authority and unanticipated revenue. At this point,revenues are estimated at$37,462,000;maintenance level expenditures are at$37,468,000. • Support Services—request to move the Director position from Human Resources to Support Services budget was approved. • Human Resources-$20K request for public safety testing for the Sheriff's office was approved. • Emergency Services submitted grant changes were approved;office rental fee has been increased and that will be reviewed with Public Works. • Information Technology(#119)and Information Services(#500)have been combined. Data Base Web Tech new position request which will be used to set up new computers and software is a PLR;the plan is to spend$50K on new computers and it takes staff time to launch the new computers. If staff is not increased,there may be two new computers launched a month. County-wide,the computer operating systems have to be upgraded and it takes staff time. Jen noted that the I.T.rates will have to be increased in 2021;a Sheriff Deputy provides I.T.work for their patrol cars and the Spillman system;request for a reclassification for Ben will be submitted;tuition reimbursement for staff will be moved to maintenance. The Commissioners want to review the tuition reimbursement policy. • Facilities—PLR for utilities for power,water and natural gas,does not include Bld 10. Cmmr.Neatherlin asked for the status of the Johnson Controls energy savings. Kelly reviewed the various PLR's which include heating&cooling;purchasing county cell phones for staff which are all maintenance. • Parks- Anne will be budgeted as FTE in Parks;reviewed the various increases including utilities,uniforms and re-start the turf management system. The requests are considered maintenance. • REET 2 Fund#351 was reviewed. There is a$370K reduction for the Belfair WW transfer out;capital improvements including MCRA Field Rehab;new stage at Board of Mason County Commissioners'Briefing Meeting Minutes Week of October 28,2019 Foothill Park;Latimer's Landing dock improvements. The requests were approved to maintenance. • REET 1 Fund#350 was reviewed and approved as maintenance. 10:00 a.m. Public Works follow up Commissioners Shutty,Trask and Neatherlin were in attendance. • Loretta provided the current status of their 2020 budget request. Request for three additional staff in Road Department. Staff provided additional information from comparable counties. The limit for county forces is$1.27M in 2020. County forces can work on gravel roads,culvert and guardrail projects. Request for upgrades to the building HVAC system was approved. $800K for vehicle and equipment replacement requests for Road Department. Cmmr.Shutty asked for detail on what would be replaced;even if approved in the budget,the Commissioners want to see the request prior to actual purchase. The equipment request will be briefed again. • Staff provided a revenue and expenditure analysis with estimated Beginning Fund Balance that includes what they have requested in their 2020 budget. • Equipment Rental&Revolving(ER&R)—there are various new vehicle purchases included in the budget. This will be held until it is decided what will happen with ER&R. • Utilities—Rustlewood is short$95K on revenues;$35K will be moved from REET 2 for repairs&maintenance;Loretta stated they are tracking the Director time spent on the various funds to get a better understanding of how to spread that cost. This will be brought back for briefing. 11:10 a.m. Sheriffs Office follow up Commissioners Shutty,Trask and Neatherlin were in attendance. • Sheryl reviewed the Sheriff s revenue changes—no Timberlake contract,reduction of$20K;no agreement with USDA for$5K;Superior Court reimbursements have been declining;various grants are also reduced in 2020. The Work Release revenue has also been reduced.Cmmr.Neatherlin pointed out that the overtime expenditures should also be reduced if the overtime contracts are not continued. • Sheryl reviewed the various expenditure requests. The Board agreed to move certain operating increases. • Review of the special funds—Boating and Narcotics will be established as separate funds. Discussion of how to budget for the Canine Program and the request is to budget in Current Expense at$8,000. • Overtime will be reviewed to be certain the overtime contracts that are not renewed are not included. • Traffic is requested at$2.16M. The actual Traffic budget is$2.6M but not all time is eligible for the traffic diversion funding. • The new position requests are still being considered. The meeting recessed at 12:25 p.m. 3:20 p.m. Review of 2020 budget requests to date. Commissioners Shutty,Trask and Neatherlin were in attendance. The Board agreed to list their priorities,if the funding is available: • Discussion of staffing request from Sheriff—because Building 10 won't be operating until the very end of 2020 at the earliest,the two correction officers can be delayed. The Board agreed one Administrative position is a priority. • Public Defender—Juvenile Attorney is a priority. • District Court—Judicial Support Specialist in Probation services is a priority. Board of Mason County Commissioners'Briefing Meeting Minutes Week of October 28,2019 • Courthouse Security-$32K contract increase. There has been no presentation of this budget request. Frank will track down additional information. • Auditor's office elections security,$10,000;overtime request$12,400(includes benefits). • WSU Extension Office-$15K for the MOU;$18,642 for the Noxious Weed Control staff are maintenance. • $50K for Veterans Assistance. Cmmr.Neatherlin wants to also provide$5,000 for direct assistance. • Cmmr.Neatherlin wants travel and training reviewed annually. A PLR will have to be submitted for these requests. • Next steps—Identify one-time requests and meet again at 2 p.m.on Monday, November 4. The meeting adjourned at 4:05 p.m. Respectfully submitted, Diane Zoren,Administrative Services Manager BOARD OF MASON COUNTY COMMISSIONERS Kevin Shutty Randy Neatherlin Sharon Trask Chair Commissioner Commissioner BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS Mason County Commission Chambers, 411 North 50 Street, Shelton, WA October 22, 2019 1. Call to Order—The Chairperson called the regular meeting to order at 6:03 p.m. 2. Pledge of Allegiance—Steve Bloomfield led the flag salute. 3. Roll Call — Present: Commissioner District 1 - Randy Neatherlin; Commissioner District 2— Kevin Shutty; Commissioner District 3 — Sharon Trask. 4. Correspondence and Organizational Business 4.1 Correspondence 4.1.1 Washington State Liquor and Cannabis Board sent in a liquor application for Mason General Hospital Foundation for an event at Little Creek Casino 91 West State Route 108, Shelton. 4.1.2 Washington State Housing Finance Commission sent Notice of Public Hearing on amendments to the housing finance plan for 2020-2021. 4.2 News Release- Service Awards 5. Open Forum for Citizen Input— 5.1 Steve Bloomfield spoke about issues such as safety with drainage ditches. He read specific details regarding ditches from the Department of Transportation and noted that he was speaking about this because ditches were worked on near his home and his wife wrecked into the ditches which are too large. He praised the work of the Sheriff's office and Fire District 4. 6. Adoption of Agenda - Cmmr.Trask/Neatherlin moved and seconded to adopt the agenda as published. Motion carried unanimously. N-aye; S-aye;T-aye. 7. Approval of Minutes— None 8. Approval of Action Agenda: 8.1 Approval to hire Puget Environmental, P.L.L.0 for site evaluation and cleanup plan development for properties affected by the Trails End Lake chip-sealing incident. 8.2 Approval of an interlocal agreement with the City of Shelton for Affordable Housing and Homeless Services. 8.3 Approval of amendment #4 to contract N21896-17 between the Mason County Health Department and CHOICE Regional Health Network for youth marijuana prevention and education. 8.4 Approval of Warrants &Treasure Electronic Remittances Claims Clearing Fund Warrant #s 8067486-81067679 $ 518,464.29 Direct Deposit Fund Warrant #s $ Salary Clearing Fund Warrant #s $ 8.5 Approval of both the January 2019-December 2020 Collective Bargaining Agreements (CBA) for Teamsters Union Local No. 252 representing Mason County's Juvenile Detention Unit and Probation Unit. 8.6 Approval of the State Homeland Security Program (SHSP) FY-19 Grant Contract #E20- 071 in the amount of$28,383 and approval to allow the Emergency Management Manger to sign on behalf of Mason County. 8.7 Approval of a resolution to cancel outstanding warrants totaling $2,882.21 per RCW 39.56.040. (Ex.A- Res.99-19) 8.8 Approval to authorize the County Engineer to execute the following agreements: BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS October 22, 2019 - PAGE 2 1. Project Review Reimbursable Agreement, WSDOT Agreement No. 31440, to reimburse WSDOT for the purchase, labor, equipment and all associated incidental costs to install three pairs of solar powered rectangular rapid flashing beacons on US 101 in Hoodsport, WA. 2. Maintenance and Operation Agreement after equipment is installed to reimburse WSDOT for all future costs association with yearly preventative maintenance and/or repair and replacement costs due to damage, vandalism and/or failure of equipment. 8.9 Approval of an Interlocal Agreement between Mason and Kitsap Counties to provide residential household hazardous waste collection and disposal opportunities. 8.10 Approval to sign a letter to the WRIA 14 Committee with regards to connecting the Evergreen Mobile Home Park to water and sewer service from the City of Shelton. 8.11 Approval of an Interlocal Agreement between Mason County and the City of Shelton for lobbying services. Cmmr. Neatherlin/Trask moved and seconded to approve action items 8.1 through 8.11. Motion carried unanimously. N-aye; S-aye; T-aye. 9. Other Business (Department Heads and Elected Officials) 9.1 Loretta Swanson responded to earlier comments from Steve Bloomfield. She said more investigation into the size and creation of ditches will be done. 10. 9:15 a.m. Public Hearings and Items set for a certain time— 10.1 Public Hearing to consider the sale of parcel 32127-53-00174 in the amount of $4,000. Staff: Frank Pinter Frank Pinter noted that the feasibility study is not done for this parcel and the buyers have asked to table the hearing until November 12, 2019. Cmmrs. Neatherlin/Trask moved and seconded to table the hearing for parcel 32127-53-00174 until Tuesday, November 12, 2019. Motion carried unanimously. N-aye; S-aye;T-aye. 10.2 Public Hearing to consider amendments to Title 16, Plats and Subdivision Code. Staff: Kell Rowen. Planning Manager, Kell Rowen, listed the proposed changes to Title 16.36.010. No public comment received. Cmmrs. Trask/Neatherli n moved to adopt revisions to Title 16, Plats and Subdivisions. Motion carried unanimously. N-aye; S-aye; T-aye. (Ex. B—Ord. 100- 19) 11. Board's Reports and Calendar-The Commissioners reported on meetings attended the past week and announced their upcoming weekly meetings. 12. Adjournment—The meeting adjourned at 6:36 p.m. BOARD OF MASON COUNTY COMMISSIONERS' PROCEEDINGS October 22, 2019 - PAGE 3 BOARD OF COUNTY COMMISSIONERS ATTEST: MASON COUNTY, WASHINGTON Melissa Drewry, Clerk of the Board Kevin Shutty, Chair Sharon Trask, Commissioner Randy Neatherlin, Commissioner MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Zoren Action Agenda x Public Hearing Other DEPARTMENT: Support Services EXT: 747 DATE: November 12, 2019 Agenda Item # Commissioner staff ti complete) BRIEFING DATE: November 4, 2019 BRIEFING PRESENTED BY: Support Services [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Approval of resolution establishing an Imprest Revolving checking Account for Lake Management District No. 3 for Spencer Lake. Background: LMD 3 was established in 2019 and the Citizen's Steering Committee has requested an Imprest Revolving Checking Account to make small purchases of the LMD. Budget Impacts: This account would have only LMD funding in it. RECOMMENDED ACTION: Approval of resolution establishing an Imprest Revolving checking Account for Lake Management District No. 3 for Spencer Lake. Attachment(s): Resolution RESOLUTION NO. A resolution establishing an Imprest Revolving Checking Account for Lake Management District No. 3 for Spencer Lake WHEREAS, the Board of Mason County Commissioners established Lake Management District No. 3 for Spencer Lake (LMD #3) by adoption of Ordinance 75-19 on August 13, 2019; WHEREAS, Fund #195 for LMD #3 was established by adoption of Resolution 91-19 on September 17, 2019; WHEREAS, the LMD #3 Citizen's Steering Committee has requested an Imprest Revolving Checking Account be established in the amount of$2,000 to make small purchases for the operation of the LMD; WHEREAS, the LMD #3 Imprest Checking Account shall be used as follows: 1. Purchases from the account shall be approved by the LMD #3 Citizen's Steering Committee. 2. The LMD #3 Citizen's Steering Committee shall appoint a custodian of the account and determine the authorized signers of the account and provide this information to the County. 3. The LMD #3 Citizen's Steering Committee shall establish a process for the safe management of the checking account that includes segregation of duties so not one person is responsible for purchases, check writing and account reconciliation. 4. The custodian shall submit the appropriate receipts to the County for replenishment from Fund #195 at least.quarterly. 5. The custodian shall submit the reconciled bank statement to the County on a monthly basis along with the check register report. 6. The account shall never be used for personal cash advances, loans or expenditures. 7. The account shall be made available for inspection by the County as requested. NOW, THEREFORE BE IT HEREBY RESOLVED by the Board of Mason County Commissioners to establish the Imprest Revolving Checking Account for Lake Management District #3 for Spencer Lake in the amount of$2,000. Dated Mason County Treasurer BOARD OF COUNTY COMMISSIONERS MASON COUNTY, WASHINGTON Lisa Frazier Kevin Shutty, Chair ATTEST: Melissa Drewry, Clerk of the Board Randy Neatherlin, Commissioner APPROVED AS TO FORM: i 4e Sharon Trask, Commissioner Tim Whitehead Chief Deputy Prosecuting Attorney ]:\Lake Management District\Spencer Lake 2019 Process\Imprest checking account.docx MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Zoren Action Agenda x Public Hearing Other DEPARTMENT: Support Services EXT: 747 DATE: 11-12-19 Agenda Item # Commissioner staff tdcomplete) BRIEFING DATE: November 4, 2019 BRIEFING PRESENTED BY: Diane Zoren [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Approval of the following 2019 meeting changes due to the holidays: reschedule the November 26 Commission meeting to 9 a.m.; reschedule the November 26 Board of Health meeting to 10:00 a.m.; there will be no December 24 or December 31 Commission meetings. Background: Due to the holidays the Commissioners wish to reschedule/cancel the various November and December meetings. Budget Impacts: None RECOMMENDED ACTION: Approval of the following 2019 meeting changes due to the holidays: reschedule the November 26 Commission meeting to 9 a.m.; reschedule the November 26 Board of Health meeting to 10:00 a.m.; there will be no December 24 or December 31 Commission meetings. MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Michael MacSems Action Agenda —X_ Public Hearing Other DEPARTMENT: DCD EXT: 571 DATE: 11/12/19 Agenda Item # 3 Commissioner staff to complete) BRIEFING DATE: None BRIEFING PRESENTED BY: Michael MacSems [ X ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: Per Direction of Diane Zorn ITEM: Appoint David Dally and Steve Rose to fill two new terms on the Mason County Historic Preservation Commission expiring in November 2022. EXECUTIVE SUMMARY: (If applicable, please include available options and potential solutions): The Mason County Historic Preservation Commission is a seven (7) member commission which serves to identify and actively encourage the conservation of Mason County's historic resources. Currently there are two seats which will expire on November 30th, Mason County has received two applications for these seats. The applications are from David Dally of Shelton and Steve Rose of Grapeview (who is currently on the commission). BUDGET IMPACTS: None RECOMMENDED OR REQUESTED ACTION: Appoint David Dally and Steve Rose to fill new terms ending on November 30, 2022. ATTACHMENTS: Applications from David Dally and Steve Rose and the 2019 HPC membership list. cc: CMIVIRS Neatherlin,Shutty&Trask Clerk 1E�V E'6 D" -0 - i�.U L I M Mason County Commissioners Pnx 38i'-4!7-04'31.: Tc,. Mason County Historic Preservation Commission r4rVg.David P.Daily tDORESi: 360. VOTI¢�FIRE-�-5'14—��i-A6AJA VVORK PHONE 360. Shelton ti124WIL 'Nap APPA W IHF�CORIT" LNUTY-SERVICE EMPLOYMENTjil'RETIREL) PREV10W) [J-1WA4Gf1KFiltPh Tremaine-West, Inc. 23 years Mason County Arizi&al' ocley, rea urer McComb Way Road Maintenance AssociationPresident POSITQ�'u; Elks,Shelton CCjMPAN MCHS Annual Car Show In your tvo.is,wn,31 do you perceive is The yole or purpose of the Board.corrimitlee or Counotl for which you'qr�applying: Identify and encourage the preservation of Mason County's historic resources. What Interests,skills do you v0sh to offer the Board.Committee,or Council? 50 years experience in IT and Credit Union IT,small busin6ss owner. Amateur Good MSOffioe skills,advanced IT skills,honed analytical approach. Pjease tist any financial, professional,or voluntary affiliations which may Influence or affect your position on this Suard I Ii.e.create a potential conflict of interest) Treasurer,Mason County Historical Society.I will recuse myself from any votes that involve or could potentially involve the NCHS. You, p!a(Il6paiffin is dependent upon attending ceftaintrainings made available by the Counry during regular Uusl'ness hc-M isticri hs Open Publ-r Meetings Act and Public Records).The trainings would be at PO CtKt to you VV4YJIdVoU 10A, Yes rwvq much lime Carl you givelo this Position? N61 llont�y WeWy C'.v:(}4& . -CaLIiciun, nutty&Trask Clerk Yl�i C1�a LI l�a.��,�s E "d � MASON COUNTY COMMISSIONERS 411 NORTH FIPTTH STREET Nov ()6 2M SHELTON WA 98584 - Mason county Fax 360-427-8437; Voice 360-427-9670, Ext 419;275-4467 or 482-5269 Commissioners I AM SEEKING APPOINTMENT TO MA-6o0 C)O 4Aff ( H 1.517121C. 'D( "iary ox1 0rhM1 G6 I" NAME: SI-evqj E . ROS E ADDRESS: Po I Z(-5 . PHONE: 3 W , CITY/ZIP: VOTING PRECINCT: WORK PHONE: LL YN 9 8.52+(OR AREA IN THE COUNTY YOU Lim E-MAIL: ------------------------------------------------------------------------------------------- COMMUNITY SERVICE EMPLOYMENT: (IF RETIRED, PREVIOUS EXPERIENCE) (ACTIVITIES OR.MEMBERSHIPS) COMPANY: pS IVS 4 0 YRS Cgvzoey-J-T 1'Vi Bt'12.— POSITION: C0C=(:5T1 CS 1VAu►)9C-4yhCyV7- �W j,+Ll s` --- COMPANY: YRS POSITION:. --------------------------------7----------------------------------------------------------- In your words,what do you perceive is the role or purpose o f he Board, Committee or Council for which you are applying: `TO -7DEM- 1 r'> AN► � 5 2vc Ii C -?10 Arab F41"r>1 What interests, skills do you wish to offer the Board, Committee,or Council-? DU yese-YU 0 N /UrY s l �;rvg , Please list any financial, professional, or voluntary affiliations which may influence or affect your position on this Board: (i.e. create a potential conflict of interest) Ves,, ( t *Isms J ,,axy 5(-basw,mj ht--6ot Your participation is dependent upon attending certain trainings made available by the County during regular business hours (such as Open Public Meetings Act and Public Records).The trainings would be at no cost to you.Would you be able to aft nd such trainings? Realisti ly,how much time can youthis position? u ray Monthly Weekly Daily .0ffice:Use Only AppointmentDate nature Tenn'Expire)pate MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS FROM: Frank Pinter DEPARTMENT: Support Services EXT: 747 MEETING DATE: November 12, 2019 BRIEFING DATE: November 4 2019 ITEM: Approval of the joint professional services agreement with the City of Shelton and Phillips Burgess Government Relations LLC for lobbying services. EXECUTIVE SUMMARY: This professional services agreement is for lobbying services for legislative capital projects. BUDGET IMPACTS: $7,800 RECOMMENDED OR REQUESTED ACTION: Approval of the joint professional services agreement with the City of Shelton and Phillips Burgess Government Relations LLC for lobbying services. Briefmg Summary 11/5/2019 PROFESSIONAL SERVICES AGREEMENT Contract No. 2019- THIS Agreement is made effective as of the V day of December, 2019 by and between Consultant, organized under the laws of the State of Washington,doing business at: Consultant(hereafter the "CONSULTANT") Phillips Burgess Government Relations LLC. Address: 724 Columbia St NW NW Suite 320 Olympia,WA 98501 Contact:Troy Nichols 360-918-6838—Cell 360-742-3500-Office and Mason County a Washington municipal corporation, established under the laws of the State of Washington,whose address is: Mason County(hereafter the "CLIENT") 411 N 5th St. Shelton WA 98584 and the City of Shelton a Washington municipal corporation, established under the laws of the State of Washington,whose address is: The City of Shelton (hereafter the "CLIENT") 525 W. Cota St. Shelton WA 98584 for professional services in connection with the following project: The Client's Capital Projects Legislative Agenda TERMS AND CONDITIONS 1. Service by Consultant. a. Consultant shall perform the services described in the Scope of Work attached to this Agreement as Exhibit"A".The services performed by the Consultant shall not exceed the Scope of Work without prior written authorization from the Client. b. The Client may from time to time require changes or modifications in the Scope of Work.Such changes, including any decrease or increase in the amount of compensation, shall be agreed to by the parties incorporated in written amendments to the Agreement. 1 2. Terms.This agreement shall commence on December 1, 2019 and shall terminate on November 30, 2020, unless extended or terminated in writing as provided herein. 3. Compensation.The Client shall pay the consultant an annual fee of$15,600 for the services listed above. Consultant may bill client travel related, communications and other expenses not to exceed $1,500 for the term of the contract. 4. Payments. a. Consultant shall maintain time and expense records and provide them to the Client monthly after services have been performed, along with monthly invoices for work performed to the date of the invoice. b. All invoices shall be paid by the Client within twenty(20) days of receipt of an invoice. If the client objects to all or any portion of the invoice, it shall so notify the Consultant of the same within five (5)days from the date of receipt and shall pay that portion of the invoice not in dispute,and all parties shall immediately make every effort to settle the disputed portion. c. Consultant shall keep cost records and accounts payable pertaining to this Agreement available for inspection by the Client for six (6)years after final payment. Copies shall be made available upon request. d. Client Content. Client unconditionally guarantees that any elements of text, graphics, photos, designs,trademarks, or other artwork furnished to Consultant are owned by the County, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify and defend Consultant from any liability(including attorney's fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the County. Client shall maintain ownership of all text,graphics, photos, designs, trademarks or other artwork furnished to Consultant by Client ("Client Content"). e. Ownership of Work Product. Once Client has submitted final payment to Consultant under this Agreement, Client shall own copyright to all Work Product and source documents produced by Consultant and delivered to CLIENT under the terms of this Agreement.This Work Product may be shared or used in the future. Consultant retains the right to display graphics and other elements of Work Product as examples of their work in their portfolios. 5. Relationship of Parties.The parties intend that an independent contractor-client relationship will be created by this Agreement. As the Consultant is customarily engaged in an independently established trade which encompasses the specific service provided to the Client hereunder, no agent, employee, representative or sub-consultant of the Consultant shall be or shall be deemed to be the employee, representative or sub-consultant of the Client. In performance of the work, the Consultant is an independent contractor with the ability to control and direct performance details of the work,the Client being interested only in the results obtained under this Agreement. None of the benefits provided by the Client to its employees including, but not limited to, compensation, insurance, and unemployment insurance are available from the Client to the employees, agents, representative or sub-consultant of the Consultant. The Client, shall not, during the term of this agreement, engage other independent contractors to perform the same or similar work that the Consultant performs hereunder. 2 6. Indemnification/Hold Harmless. a. Indemnification of Consultant. The Client shall indemnify Consultant, its officers, agents and employees,from and against any claim, damages, losses and expenses, including but not limited to reasonable attorney's fees, arising from the county's performance under this Agreement; provided, to the extent the claim, damages, losses and expenses are cause by intentional acts of or by the concurrent negligence of the Consultant, its officers, agents,or employees,the County's indemnification obligation hereunder shall be limited to the County's proportionate share of liability as agreed to by the parties to this Agreement or determined by a court of competent jurisdiction. b. Indemnification of Clients.Consultant,shall indemnify the County, its officers,agents and employees,from and against any claim, damages, losses and expenses, including but not limited to reasonable attorney's fees, arising from the county's performance under this Agreement; provided, to the extent the claim, damages, losses and expenses are cause by intentional acts of or by the concurrent negligence of the Consultant, its officers, agents,or employees,the County's indemnification obligation hereunder shall be limited to the County's proportionate share of liability as agreed to by the parties to this Agreement or determined by a court of competent jurisdiction. 7. Insurance. Consultant shall carry, as a minimum,for the duration of this agreement the following insurance in such forms and with a carrier rated A.M. Best"A:VII": a. Workers' Compensation and employer's liability insurance in amounts sufficient, pursuant to the laws of the State of Washington, b. Commercial General Liability Insurance with limits of liability not less than $500,000 per occurrence and $1,000,000 in the general aggregate,for bodily injury, including personal injury or death, products liability and property damage, c. Automobile Liability Insurance with a combined single limit of liability not less the $500,000 for bodily injury (including personal injury or death) and property damage, d. Certificates of Insurance naming the CLIENT as additional insured on all such insurance policies, with the exception of the Workers'Compensation coverage.The insurance provided to the additional insured shall be primary.The Consultant shall provide certificates of insurance and an Additional Insured endorsement, concurrent with the execution of this Agreement, evidencing such coverage and at the COUNTY's request, furnish the CLIENT with copies of all insurance policies and with evidence of payment of premiums or fees of such policies. e. Consultants Commercial General Liability Insurance shall be primary and non- contributory with respect to any insurance or self-insurance programs covering COUNTY, its officers,officials, employees and agents.Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the COUNTY, its officers, officials,employees and agents. f. All insurance policies shall contain a clause of endorsement providing that they may not be terminated or materially amended during the term of this Agreement, except after forty-five (45) days prior written notice to the COUNTY. If Consultants insurance policies are"claims made"or"claims paid",Consultant shall be required to maintain tail coverage for a minimum period of three (3) years from the date this Agreement is actually terminated. Consultant's failure to maintain such insurance policies shall be grounds for the COUNTY's immediate termination of this Agreement. 3 8. Suspension and Termination of Agreement. a. Termination without cause.This Agreement may be terminated by the Client upon thirty (30)days' notice. b. Termination with cause.The Agreement may be terminated upon the default of the Consultant. c. Termination by Consultant.This Agreement may be terminated by the Consultant upon thirty(30) days' notice. d. Rights upon Termination. i. Without or With Cause. Upon termination for any reason, all finished or unfinished documents, reports, or other material or work of Consultant pursuant to this Agreement shall be submitted to the Client, and Consultant shall be entitled to just and equitable compensation for any and all work completed prior to the date of termination, not to exceed the total compensation set forth herein. Consultant shall use its best efforts to minimize the compensation payable under this Agreement in the event of such termination. ii. Default.If the Agreement is terminated for default,the Consultant shall not be entitled to receive any further payments under the Agreement until all work called for has been fully performed. e. Notice of Termination or Suspension. If delivered to the Consultant in person, termination shall be effective immediately upon the Consultant's receipt of the Client's written notice or such date as stated in the Client's notice of termination,whichever is later. 9. Notice. Any notices required to be given by the Client to the Consultant or by the Consultant to the Client shall be in writing and delivered to the following address: Consultant Mason County Attn: Attn: Board of Commissioners Address: 411 N 5th St. Shelton WA 98584 10. Resolution of Disputes and Governing Law. a. It is agreed by all parties that any and all litigation between the parties shall be filed in Mason County Superior Court, Mason County, Washington. b. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In any suit or action instituted to enforce aby rights granted under this Agreement, the substantially prevailing party shall be entitled to recover its costs, disbursements and reasonable attorney's feed from the other party. 11. Entire Agreement.The Written provisions of this Agreement,together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the Client, and such statements shall not be effective or be construed as entering into or forming a part of or between parties with respect to the subject matter hereunder is contained in this Agreement.All of the above documents are hereby made part of this Agreement and form the Agreement document as fully as if the same were set forth herein. Should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, then this Agreement shall prevail. 4 IN WITNESS WHEREOF,the parties have executed this Agreement on the day and year set forth above. CONSULTANT MASON COUNTY By: By: Managing Partner County Commissioner, Board Chair Date: Date: THE CITY OF SHELTON By: Mayor Date: 5 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Sheryl Hilt Action Agenda _X_ Public Hearing Other DEPARTMENT: Sheriff's Office, Finance EXT: 636 COMMISSION MEETING DATE: 11/12/19 Agenda Item # S Commissioner staff t�com tete BRIEFING DATE: 11/4/2019 BRIEFING PRESENTED BY: Sheryl Hilt [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Approval of a professional services contract with Monarch Children's Justice and Advocacy Center and the Mason County Sheriff's Office. BACKGROUND: This contract is for Monarch to conduct interviews with children regarding abuse. The previous contract expired but there does not appear to be a copy anywhere. The previous amount charged for each interview was $75 per interview (inclusive) but that appears to have been the price in 2011. The new contract is for $200 per interview (inclusive). RECOMMENDED ACTION: Approve and chair sign the new contract. BUDGET IMPACTS: None. Budget supplementals in 2019 will cover the expenses and 2020 budget was based on 2019 actual costs. ATTACHMENTS): Copies of the contract are with the briefing materials. C:\Users\dlz.MASON\AppData\Local\Microsoft\Windows\INetCache\Content.OutlookAJ48NAGT\BOC C Action Item Contract approval(002).docx Community Action Council of Lewis, Mason & Thurston Counties October 7, 2019 ti C,'1 {. j Sheryl Hilt Mason County Sheriff's Office w;' PO Box 1037 D ' Shelton, WA 98584 `'? � c.� w Dear Sheryl, Enclosed are two originals of the professional services contract between the Mason County Sheriffs Office and CACLMT/Monarch Children's Justice and Advocacy Center. Please obtain signatures and return one original to our office. If you have questions or need additional information, please.call me at 360-438-1100 x1133. Thank you. Sincerely, Marilyn Lindholm Administrative Assistant Serving our communities for over 50 years www.cacimt.org Lewis County Mason County Thurston County 409 N Tower Ave,Centralia,WA 98531 807 W Railroad Ave,Shelton,WA 98584 3020 Willamette Drive NE,Lacey,WA 98516 (360)736-1800 Fax(360)736-1891 (360)426-9726 Fax (360)462-5353 (360)438-1100 Fax(360)491-7729 Mason County Professional Services Contract This Service Agreement, hereinafter referred to as "Agreement," is entered into and made effective as of the date set forth at the end of this document by and between the following parties: Mason County Sheriff's Office, organized under the laws of the state of Washington, having its principal location at 322 N 3rd St, Shelton, WA 98584 and Monarch Children's Justice and Advocacy Center, organized under the laws of the state of Washington, having its principal place of business at 420 Golf Club Rd. SE, Suite 203, Lacey, WA 98503 Hereinafter, "Client" will refer to and be used to describe the following party: Mason County Sheriff's Office. "Service Provider" will refer to and be used to describe the following party: Monarch Children's Justice and Advocacy Center. Client and Service Provider may be referred to individually as "Party" and collectively as the "Parties." RECITALS: WHEREAS, Client wishes to retain the Services of Service Provider; WHEREAS, Service Provider has the skills, qualifications, and expertise required to provide the Services to the Client; WHEREAS, Service Provider wishes to render such Services to Client. NOW, therefore, in consideration of the promises and covenants contained herein, as well as other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties do hereby agree as follows: Article 1 - DEFINITIONS: As used in this Agreement: 1 A. "Services" shall be used to refer to forensic interviews with children and juveniles when there is suspicion of abuse or in cases where a child has been exposed to violence. B. "Commencement Date" shall be used to refer to the date the Service Provider begins work on the Services for the Client. The Commencement Date shall be the last signature date of this agreement or the last day of any amendments signed by both parties. C. "Completion Date" shall be used to refer to the date that the Service Provider will complete or cease the provision of Services to the Client. The Completion Date of this agreement will be August 31, 2021 unless as agreed by amendment to this agreement. D. "Fees" shall be used to refer to the payment Client will pay to Service Provider for the rendering of the Services. Specifically, the fees shall be $200 (two hundred dollars), for each interview as a fixed fee for all Services rendered. Article 2 - AGREEMENT: A. Subject to the terms and conditions of this Agreement, Service Provider hereby agrees to render the Services to Client, beginning on the Commencement Date and ending on the Completion date. Client agrees to pay Service Provider the Fees required for the Services. B. Amendments to this agreement must be signed by both parties prior to the completion date of the agreement or any amendment. Article 3 - LOCATION: Service Provider will render the Services anywhere the Service Provider considers appropriate to the type and nature of the work required to complete the Services. Article 4 - SUBCONTRACTORS The Service Provider is not permitted to use subcontractors to provide some or all of the Services without the prior written approval of the Client. Article 5 - STAFF OR EMPLOYEES: 2 The Sheriff's Office policy is to provide equal opportunity in all terms, conditions, and privileges of employment for all qualified applicants and employees without regard to race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status. Monarch shall comply with all laws prohibiting discrimination against any employee or applicant for employment on the grounds of race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Furthermore, in those cases in which Monarch is governed by such laws, Monarch shall take affirmative action to ensure applicants are employed, and treated during employment without regard to their race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Such action shall include, but not be limited to advertising, hiring, promotions, layoffs or terminations, rate of pay or other forms of compensation benefits, selection for training including apprenticeship, and participation in recreational and educational activities. In all solicitations or advertisements for employees placed by them or on their behalf, Monarch shall state that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status. Monarch shall not discriminate on the grounds of race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status; or deny an individual any service or benefits under this agreement; or subject an individual to segregation or separate treatment in any manner related to his/her/its receipt of service or other benefits provided under this contract; or deny an individual an opportunity to participate in any program provided by this contract. The performance of all or part of this agreement by Monarch shall not operate to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of Monarch or any employee of Monarch or any sub-contractor or any employee of any sub-contractor by the Sheriff's Office at the present time or in the future. Article 6 — TERMS OF PAYMENT: The Client agrees to pay the Service Provider the required Fees, as outlined elsewhere in this Agreement, for the provision of the Services, subject to the following terms and conditions: 3 A. Invoice Interval: The Service Provider will be entitled to invoice the client monthly. B. Invoice Period: The Client shall have 30 days from the date of receipt at the Sheriff's Office, in which to pay the invoice. C. Method of Payment: Service Provider will accept County warrant or ACH forms of payment. D. Expenses: The Service Provider is responsible for the management and payment of any and all expenses incurred in the rendering of the Services and is not permitted to charge any such expenses back to the Client. E. Penalties: If the Client does not pay the invoiced and required amount by the date stated in the invoice or as otherwise provided for in this Agreement, the Service Provider shall be entitled to: I. require Client to pay for the Services, or any remaining part of the Services, in advance; II. cease performance of the Services completely or until payment is made, at the Service Provider's sole and exclusive discretion. F. Tax Statement: Any and all charges payable under this Agreement are exclusive of taxes, surcharges, or other amounts assessed by state or federal governments. Taxes imposed upon or required to be paid by Client or Service Provider shall be the sole and exclusive responsibility of each, respectively. Article 7 - CLIENT OBLIGATIONS: During the provision of the Services, the Client hereby agrees to: A. Cooperate with the Service Provider for anything the Service Provider may reasonably require; B. Provide any information and/or documentation needed by the Service Provider relevant to the provision of Services or payment for the provision of Services; C. Require any staff or agents of the Client to co-operate with and assist the Service Provider as the Service Provider may need; 4 Article 8 — CONFLICT OF INTEREST: If at any time prior to the commencement of, or during the term of this contract, Monarch or any of its employees involved in the performance of this agreement shall have or develop an interest in the subject matter of this contract that is potentially in conflict with the Sheriff's Office interest, the Monarch shall immediately notify the Sheriff's Office of the same. The notification of the Sheriff's Office shall be made with sufficient specificity to enable the Sheriff's Office to make an informed judgement as to whether or not the Sheriff's Office interest may be compromised in any manner by the existence of the conflict, actual or potential. Thereafter, the Sheriff's Office may require Monarch to take reasonable steps to remove the conflict of interest. The Sheriff's Office may also terminate this agreement according to the provisions herein for termination. Article 9 - CONFIDENTIALITY: Each Party hereby acknowledges and agrees that they and the other party each possess certain non-public Confidential Information. The Parties agree that the Confidential Information is private, and the Parties have entered into a business relationship, through which they will each have access to the other party's Confidential Information. Each of the Parties desires to maintain the private nature of any Confidential Information given. A. Confidential Information refers to any information which is confidential to either of the Parties. The Confidential Information may be in the form of documents, techniques, methods, practices, personal information or other oral or written knowledge and/or any other information which is confidential to either of the Parties. Confidential Information may or may not be disclosed as such, through labeling, but is to be considered any information which ought to be treated as confidential under the circumstances through which it was disclosed. Confidential Information shall not mean any information which: I. is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the Receiving Party; II. is already known, through legal means, to the Receiving Party; 5 III. is given to the Receiving Party by any third party who legally had the Confidential Information and the right to disclose it. B. Both Parties hereby agree they shall not use the Confidential Information for any purpose except those contemplated herein or expressly authorized by the Disclosing Party. Article 10 - INSURANCE REQUIREMENTS: Without limiting Service Provider's indemnification of Client, and prior to commencement of Work, Service Provider shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and, in a form, satisfactory to the Client. General Liability Insurance, using a standard ISO CG 00 01 occurrence form, including premises, operations, products and completed operations, contractual liability with limits not less than $1,000,000 per occurrence, $2,000,000 General Aggregate and $2,000,000 Products-Completed Operations Aggregate for bodily injury, personal injury, and property damage. Coverage shall include Employers Liability (stop gap). The Commercial General Liability Coverage shall include the following endorsements: The County, its Board, officers, agents and employees shall be included as Additional Insureds either by specific endorsement naming these parties or a blanket additional insured endorsement applicable "when required by written contract or agreement" Primary, Non-contributory endorsement, both in favor of the County, its Board, officers, agents and employees or a blanket waiver of subrogation endorsement applicable "when required by written contract or agreement". The Commercial General Liability Coverage shall not include the following endorsements: i Amendment of Contractual Liability ii Cross Suits Liability Exclusion Automobile liability insurance. Service Provider shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Service Provider arising out of or in connection with Work to be performed under this 6 Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident. If Service Provider's employees will use personal autos in any way in carrying out this agreement, Service Provider shall obtain evidence of personal auto liability coverage for each such person. Professional liability (errors & omissions) insurance. Service Provider shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Service Provider agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. Workers' compensation insurance. Service Provider shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Service Provider shall submit to Client, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of County, its officers, agents, employees and volunteers. Article 11 - LIMITATION OF LIABILITY Except in cases of death or personal injury caused by either party's negligence, either party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement shall be limited to Fees paid by the Client to the Service Provider. To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits, or business. Article 12 - INDEMNITY: Service Provider hereby agrees to indemnify and defend Client, and all of Client's elected or appointed officers, agents, officials, employees, volunteers and representatives, and hold harmless from and against any and all damage, 7 liability, demands, suits and losses, as well as legal fees and costs incurred, from injuries to or death of any person or persons, including the employees or each party hereto, and the loss or damage to the property of any person or persons as a result of the Services rendered by this Agreement or any transaction or matter connected with the Services or the relationship between Service Provider and Client, whether caused by a negligent act or omission of either party hereto, its agents, contractors, or employees, except that Service Provider assumes no liability for the sole negligent acts of Client. This Paragraph shall survive the termination of this Agreement. Article 13 - TERMINATION: A. This Agreement may be terminated be either party, upon notice in writing: I. if the other party commits a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not; II. if the other party becomes unable to perform its duties hereunder, including a duty to pay or a duty to perform; III. if the other party or its employees or agents engage in any conduct prejudicial to the business of the other, or in the event that either party considers that a conflict or potential conflict of interest has arisen between the parties. B. The continuation of this contract is contingent upon the appropriation of funds to fulfill the requirements of the contract by the county commission. If the commission fails to appropriate sufficient monies to provide for the continuation of the contract, or if such appropriation is reduced by any means provided in the appropriations to prevent the total appropriation for the year from exceeding revenues for that year, or for any other lawful purpose, and the effect of such reduction is to provide insufficient monies for the continuation of the contract, the contract shall terminate on the date of the beginning of the first fiscal year for which funds are not appropriated. C. This Agreement may be terminated by the Service Provider if the Client fails to pay any requisite Fees within seven (7) days after the date they are due. The Service Provider may terminate the Agreement immediately, with no notice period, in writing. 8 D. If this Agreement is terminated before the expiration of its natural term, Client hereby agrees to pay for all Services rendered up to the date of termination, and for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by Service Provider related to the rendering of Services prior to the date of termination. E. Any termination of under this subpart shall not affect the accrued rights or liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies either Party may be entitled to. Any provision or subpart of this Agreement which is meant to continue after termination or come into force at or after termination shall not be affected by this subpart. Article 14 - RELATIONSHIP OF THE PARTIES: The Parties hereby acknowledge and agree that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties and that this Agreement is for the sole and express purpose of the rendering of the specific Services by the Service Provider to the client under the terms and conditions herein. Article 15 - RIGHT TO AUDIT Any authorized agency of the State (e.g. Office of the State Auditor, Inspector General's Office, etc.) and of the Federal Government has the right to inspect and review all books and records pertaining to services rendered under this contract for a period of six years from the date of final payment under the prime contract and any subcontract. The Contractor and subcontractor shall maintain such books and records for this six-year period and cooperate fully with the authorized auditing agency. Contractor and subcontractor shall comply with federal and state laws authorizing an audit of their operations as a whole, or of specific program activities. Article 17 - GENERAL PROVISIONS: A. Governing Law: This Agreement shall be governed in all respects by the laws of the state of Washington and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within the state of Washington. The Parties agree that this choice of law, venue, 9 and jurisdiction provision is not permissive, but rather mandatory in nature. B. Assignment: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by either Party. C. Amendments: This Agreement may only be amended in writing signed by both Parties. D. Proof of insurance. Service Provider shall provide certificates of insurance to Client as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by Client's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Client at all times during the term of this contract. Client reserves the right to require complete, certified copies of all required insurance policies, at any time. E. Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Client, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Service Provider or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Service Provider hereby waives its own right of recovery against Client. F. Notice of cancellation. Service Provider agrees to oblige its insurance agent or broker and insurers to provide to Client with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. G. Additional insured status. General liability policies shall provide or be endorsed to provide that County and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies. H. Duration of coverage. Service Provider shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Service Provider, his agents, representatives, and employees. 10 I. Enforcement of contract provisions (non estoppel). Service Provider acknowledges and agrees that any actual or alleged failure on the part of the Client to inform Service Provider of non-compliance with any requirement imposes no additional obligations on the Client nor does it waive any rights hereunder. J. Timely notice of claims. Service Provider shall give Client prompt and timely notice of claims made or suits instituted that arise out of or result from Service Provider's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. K. Additional insurance. Service Provider shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. L. No Waiver: None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term. M. Severability: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement. N. Public Announcement: Neither Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written approval of the other Pa rty. 11 0. Entire Agreement: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral. P. Headings: Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement. Q. Counterparts: This Agreement may be executed in counterparts, all of which shall constitute a single agreement. If the dates set forth at the end of this document are different, this Agreement is to be considered effective as of the date that both Parties have signed the agreement, which may be the later date. R. Force Majeure: Service Provider is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances. S. Notices Electronic Communications Permitted: Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or e-mail, to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below or other email address as that Party may from time to time notify to the other Party in accordance with this clause. The relevant contact information for the Parties is as follows: Service Provider: Tambra Donohue @ tambrad.monarch@caclmt.org Client: Sheryl Hilt @ shilt@co.mason.wa.us Notices sent as above shall be deemed to have been received seven working days after the date of posting or next working day after sending (in the case of e-mail). In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be. 12 Signatures: Mason County Deputy Prosecutor Printed Name: Tim Whitehead Signature: Date: / Sheriff's Office Contract Administrator: Printed Name: Sheryl Hilt Title: Finance Manager Contact Information: shilt@co.mason.wa.us Signature: 1 nL Date: Service Provider: Children's Justice and Advocacy Center Contract Administrator: Printed Name: John M. Walsh Title: Chief Executiv Officer Contact Informal JohnW ca mt.or Signature: Date: x) 13 County Commission: Mason County Board of Commissioners Chair: Printed Name: Kevin Shutty Title: Commission Chair Contact Information: kshutty@co.mason.wa.us Signature: Date: 14 Mason County Professional Services Contract This Service Agreement, hereinafter referred to as "Agreement," is entered into and made effective as of the date set forth at the end of this document by and between the following parties: Mason County Sheriff's Office, organized under the laws of the state of Washington, having its principal location at 322 N 3rd St, Shelton, WA 98584 and Monarch Children's Justice and Advocacy Center, organized under the laws of the state of Washington, having its principal place of business at 420 Golf Club Rd. SE, Suite 203, Lacey, WA 98503 Hereinafter, "Client" will refer to and be used to describe the following party: Mason County Sheriff's Office. "Service Provider" will refer to and be used to describe the following party: Monarch Children's Justice and Advocacy Center. Client and Service Provider may be referred to individually as "Party" and collectively as the "Parties." RECITALS: WHEREAS, Client wishes to retain the Services of Service Provider; WHEREAS, Service Provider has the skills, qualifications, and expertise required to provide the Services to the Client; WHEREAS, Service Provider wishes to render such Services to Client. NOW, therefore, in consideration of the promises and covenants contained herein, as well as other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the Parties do hereby agree as follows: Article 1 - DEFINITIONS: As used in this Agreement: 1 A. "Services" shall be used to refer to forensic interviews with children and juveniles when there is suspicion of abuse or in cases where a child has been exposed to violence. B. "Commencement Date" shall be used to refer to the date the Service Provider begins work on the Services for the Client. The Commencement Date shall be the last signature date of this agreement or the last day of any amendments signed by both parties. C. "Completion Date" shall be used to refer to the date that the Service Provider will complete or cease the provision of Services to the Client. The Completion Date of this agreement will be August 31, 2021 unless as agreed by amendment to this agreement. D. "Fees" shall be used to refer to the payment Client will pay to Service Provider for the rendering of the Services. Specifically, the fees shall be $200 (two hundred dollars), for each interview as a fixed fee for all Services rendered. Article 2 - AGREEMENT: A. Subject to the terms and conditions of this Agreement, Service Provider hereby agrees to render the Services to Client, beginning on the Commencement Date and ending on the Completion date. Client agrees to pay Service Provider the Fees required for the Services. B. Amendments to this agreement must be signed by both parties prior to the completion date of the agreement or any amendment. Article 3 - LOCATION: Service Provider will render the Services anywhere the Service Provider considers appropriate to the type and nature of the work required to complete the Services. Article 4 - SUBCONTRACTORS The Service Provider is not permitted to use subcontractors to provide some or all of the Services without the prior written approval of the Client. Article 5 - STAFF OR EMPLOYEES: 2 The Sheriff's Office policy is to provide equal opportunity in all terms, conditions, and privileges of employment for all qualified applicants and employees without regard to race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status. Monarch shall comply with all laws prohibiting discrimination against any employee or applicant for employment on the grounds of race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Furthermore, in those cases in which Monarch is governed by such laws, Monarch shall take affirmative action to ensure applicants are employed, and treated during employment without regard to their race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Such action shall include, but not be limited to advertising, hiring, promotions, layoffs or terminations, rate of pay or other forms of compensation benefits, selection for training including apprenticeship, and participation in recreational and educational activities. In all solicitations or advertisements for employees placed by them or on their behalf, Monarch shall state that all qualified applicants will receive consideration for employment without regard to race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status. Monarch shall not discriminate on the grounds of race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status; or deny an individual any service or benefits under this agreement; or subject an individual to segregation or separate treatment in any manner related to his/her/its receipt of service or other benefits provided under this contract; or deny an individual an opportunity to participate in any program provided by this contract. The performance of all or part of this agreement by Monarch shall not operate to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of Monarch or any employee of Monarch or any sub-contractor or any employee of any sub-contractor by the Sheriff's Office at the present time or in the future. Article 6 — TERMS OF PAYMENT: The Client agrees to pay the Service Provider the required Fees, as outlined elsewhere in this Agreement, for the provision of the Services, subject to the following terms and conditions: 3 A. Invoice Interval: The Service Provider will be entitled to invoice the client monthly. B. Invoice Period: The Client shall have 30 days from the date of receipt at the Sheriff's Office, in which to pay the invoice. C. Method of Payment: Service Provider will accept County warrant or ACH forms of payment. D. Expenses: The Service Provider is responsible for the management and payment of any and all expenses incurred in the rendering of the Services and is not permitted to charge any such expenses back to the Client. E. Penalties: If the Client does not pay the invoiced and required amount by the date stated in the invoice or as otherwise provided for in this Agreement, the Service Provider shall be entitled to: I. require Client to pay for the Services, or any remaining part of the Services, in advance; II. cease performance of the Services completely or until payment is made, at the Service Provider's sole and exclusive discretion. F. Tax Statement: Any and all charges payable under this Agreement are exclusive of taxes, surcharges, or other amounts assessed by state or federal governments. Taxes imposed upon or required to be paid by Client or Service Provider shall be the sole and exclusive responsibility of each, respectively. Article 7 - CLIENT OBLIGATIONS: During the provision of the Services, the Client hereby agrees to: A. Cooperate with the Service Provider for anything the Service Provider may reasonably require; B. Provide any information and/or documentation needed by the Service Provider relevant to the provision of Services or payment for the provision of Services; C. Require any staff or agents of the Client to co-operate with and assist the Service Provider as the Service Provider may need; 4 Article 8 — CONFLICT OF INTEREST: If at any time prior to the commencement of, or during the term of this contract, Monarch or any of its employees involved in the performance of this agreement shall have or develop an interest in the subject matter of this contract that is potentially in conflict with the Sheriff's Office interest, the Monarch shall immediately notify the Sheriff's Office of the same. The notification of the Sheriff's Office shall be made with sufficient specificity to enable the Sheriff's Office to make an informed judgement as to whether or not the Sheriff's Office interest may be compromised in any manner by the existence of the conflict, actual or potential. Thereafter, the Sheriff's Office may require Monarch to take reasonable steps to remove the conflict of interest. The Sheriff's Office may also terminate this agreement according to the provisions herein for termination. Article 9 - CONFIDENTIALITY: Each Party hereby acknowledges and agrees that they and the other party each possess certain non-public Confidential Information. The Parties agree that the Confidential Information is private, and the Parties have entered into a business relationship, through which they will each have access to the other party's Confidential Information. Each of the Parties desires to maintain the private nature of any Confidential Information given. A. Confidential Information refers to any information which is confidential to either of the Parties. The Confidential Information may be in the form of documents, techniques, methods, practices, personal information or other oral or written knowledge and/or any other information which is confidential to either of the Parties. Confidential Information may or may not be disclosed as such, through labeling, but is to be considered any information which ought to be treated as confidential under the circumstances through which it was disclosed. Confidential Information shall not mean any information which: I. is known or available to the public at the time of disclosure or became known or available after disclosure through no fault of the Receiving Party; II. is already known, through legal means, to the Receiving Party; 5 III. is given to the Receiving Party by any third party who legally had the Confidential Information and the right to disclose it. B. Both Parties hereby agree they shall not use the Confidential Information for any purpose except those contemplated herein or expressly authorized by the Disclosing Party. Article 10 - INSURANCE REQUIREMENTS: Without limiting Service Provider's indemnification of Client, and prior to commencement of Work, Service Provider shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and, in a form, satisfactory to the Client. General Liability Insurance, using a standard ISO CG 00 01 occurrence form, including premises, operations, products and completed operations, contractual liability with limits not less than $1,000,000 per occurrence, $2,000,000 General Aggregate and $2,000,000 Products-Completed Operations Aggregate for bodily injury, personal injury, and property damage. Coverage shall include Employers Liability (stop gap). The Commercial General Liability Coverage shall include the following endorsements: The County, its Board, officers, agents and employees shall be included as Additional Insureds either by specific endorsement naming these parties or a blanket additional insured endorsement applicable "when required by written contract or agreement" Primary, Non-contributory endorsement, both in favor of the County, its Board, officers, agents and employees or a blanket waiver of subrogation endorsement applicable "when required by written contract or agreement". The Commercial General Liability Coverage shall not include the following endorsements: i Amendment of Contractual Liability ii Cross Suits Liability Exclusion Automobile liability insurance. Service Provider shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Service Provider arising out of or in connection with Work to be performed under this 6 Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than 1,000,000 combined single limit for each accident. If Service Provider's employees will use personal autos in any way in carrying out this agreement, Service Provider shall obtain evidence of personal auto liability coverage for each such person. Professional liability (errors & omissions) insurance. Service Provider shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Service Provider agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. Workers' compensation insurance. Service Provider shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Service Provider shall submit to Client, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of County, its officers, agents, employees and volunteers. Article 11 - LIMITATION OF LIABILITY Except in cases of death or personal injury caused by either party's negligence, either party's liability in contract, tort or otherwise arising through or in connection with this Agreement or through or in connection with the completion of obligations under this Agreement shall be limited to Fees paid by the Client to the Service Provider. To the extent it is lawful, neither Party shall be liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including without limitation any economic loss, data loss, loss of goodwill, or other loss of turnover, profits, or business. Article 12 - INDEMNITY: Service Provider hereby agrees to indemnify and defend Client, and all of Client's elected or appointed officers, agents, officials, employees, volunteers and representatives, and hold harmless from and against any and all damage, 7 liability, demands, suits and losses, as well as legal fees and costs incurred, from injuries to or death of any person or persons, including the employees or each party hereto, and the loss or damage to the property of any person or persons as a result of the Services rendered by this Agreement or any transaction or matter connected with the Services or the relationship between Service Provider and Client, whether caused by a negligent act or omission of either party hereto, its agents, contractors, or employees, except that Service Provider assumes no liability for the sole negligent acts of Client. This Paragraph shall survive the termination of this Agreement. Article 13 - TERMINATION: A. This Agreement may be terminated be either party, upon notice in writing: I. if the other party commits a material breach of any term of this Agreement that is not capable of being remedied within fourteen (14) days or that should have been remedied within fourteen (14) days after a written request and was not; II. if the other party becomes unable to perform its duties hereunder, including a duty to pay or a duty to perform; III. if the other party or its employees or agents engage in any conduct prejudicial to the business of the other, or in the event that either party considers that a conflict or potential conflict of interest has arisen between the parties. B. The continuation of this contract is contingent upon the appropriation of funds to fulfill the requirements of the contract by the county commission. If the commission fails to appropriate sufficient monies to provide for the continuation of the contract, or if such appropriation is reduced by any means provided in the appropriations to prevent the total appropriation for the year from exceeding revenues for that year, or for any other lawful purpose, and the effect of such reduction is to provide insufficient monies for the continuation of the contract, the contract shall terminate on the date of the beginning of the first fiscal year for which funds are not appropriated. C. This Agreement may be terminated by the Service Provider if the Client fails to pay any requisite Fees within seven (7) days after the date they are due. The Service Provider may terminate the Agreement immediately, with no notice period, in writing. 8 D. If this Agreement is terminated before the expiration of its natural term, Client hereby agrees to pay for all Services rendered up to the date of termination, and for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by Service Provider related to the rendering of Services prior to the date of termination. E. Any termination of under this subpart shall not affect the accrued rights or liabilities of either Party under this Agreement or at law and shall be without prejudice to any rights or remedies either Party may be entitled to. Any provision or subpart of this Agreement which is meant to continue after termination or come into force at or after termination shall not be affected by this subpart. Article 14 - RELATIONSHIP OF THE PARTIES: The Parties hereby acknowledge and agree that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties and that this Agreement is for the sole and express purpose of the rendering of the specific Services by the Service Provider to the client under the terms and conditions herein. Article 15 - RIGHT TO AUDIT Any authorized agency of the State (e.g. Office of the State Auditor, Inspector General's Office, etc.) and of the Federal Government has the right to inspect and review all books and records pertaining to services rendered under this contract for a period of six years from the date of final payment under the prime contract and any subcontract. The Contractor and subcontractor shall maintain such books and records for this six-year period and cooperate fully with the authorized auditing agency. Contractor and subcontractor shall comply with federal and state laws authorizing an audit of their operations as a whole, or of specific program activities. Article 17 - GENERAL PROVISIONS: A. Governing Law: This Agreement shall be governed in all respects by the laws of the state of Washington and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within the state of Washington. The Parties agree that this choice of law, venue, 9 and jurisdiction provision is not permissive, but rather mandatory in nature. B. Assignment: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by either Party. C. Amendments: This Agreement may only be amended in writing signed by both Parties. D. Proof of insurance. Service Provider shall provide certificates of insurance to Client as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by Client's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Client at all times during the term of this contract. Client reserves the right to require complete, certified copies of all required insurance policies, at any time. E. Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Client, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Service Provider or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Service Provider hereby waives its own right of recovery against Client. F. Notice of cancellation. Service Provider agrees to oblige its insurance agent or broker and insurers to provide to Client with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. G. Additional insured status. General liability policies shall provide or be endorsed to provide that County and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies. H. Duration of coverage. Service Provider shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Service Provider, his agents, representatives, and employees. 10 I. Enforcement of contract provisions (non estoppel). Service Provider acknowledges and agrees that any actual or alleged failure on the part of the Client to inform Service Provider of non-compliance with any requirement imposes no additional obligations on the Client nor does it waive any rights hereunder. ). Timely notice of claims. Service Provider shall give Client prompt and timely notice of claims made or suits instituted that arise out of or result from Service Provider's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. K. Additional insurance. Service Provider shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. L. No Waiver: None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term. M. Severability: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement. N. Public Announcement: Neither Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written approval of the other Party. 11 O. Entire Agreement: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral. P. Headings: Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement. Q. Counterparts: This Agreement may be executed in counterparts, all of which shall constitute a single agreement. If the dates set forth at the end of this document are different, this Agreement is to be considered effective as of the date that both Parties have signed the agreement, which may be the later date. R. Force Majeure: Service Provider is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances. S. Notices Electronic Communications Permitted: Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail or e-mail, to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below or other email address as that Party may from time to time notify to the other Party in accordance with this clause. The relevant contact information for the Parties is as follows: Service Provider: Tambra Donohue @ tambrad.monarch@caclmt.org Client: Sheryl Hilt @ shilt@co.mason.wa.us Notices sent as above shall be deemed to have been received seven working days after the date of posting or next working day after sending (in the case of e-mail). In proving the giving of a notice it shall be sufficient to prove that the notice was left, or that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged as the case may be. 12 Signatures: Mason County Deputy Prosecutor Printed Name: Tim Whitehead Signature: , Date: /6/1, Y, // Sheriff's Office Contract Administrator: Printed Name: Sheryl Hilt Title: Finance Manager Contact Information: shilt@co.mason.wa.us Signature: F)k 4�� Date: 1011-711q Service Provider: Children's Justice and Advocacy Center Contract Administrator: Printed Name: John M. Walsh Title: Chief Executive icer Contact Information JohnW@caclmt.org i Signature: Date: 101-7 /j 13 County Commission: Mason County Board of Commissioners Chair: Printed Name: Kevin Shutty Title: Commission Chair Contact Information: kshutty@co.mason.wa.us Signature: Date: 14 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Sheesley, County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: November 12, 2019 Agenda Item # (Q BRIEFING DATE: November 4, 2019 BRIEFING PRESENTED BY: Loretta Swanson and Diane Sheesley [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Road Closure — Portion of Old Belfair Highway "Belfair Christmas Parade" — December 1, 2019 BACKGROUND: The North Mason Music Booster Club is sponsoring a Belfair Christmas Parade to be held on Sunday, December 1, 2019. They have requested a road closure on a portion of Old Belfair Highway, county maintained portion from State Route 300 to Faith in Action HUB Senior Center, approximately milepost 0.000 to milepost 0.100 from 3:30pm to 5:00pm. The parade will start at Faith in Action HUB Senior Center and the adjacent lot on Old Belfair Hwy and continue through the intersection of Old Belfair Hwy and Old Clifton Road to the Dairy Queen/McLendon's parking lot. RECOMMENDED ACTION: Recommend the Board approve and execute the resolution to close Old Belfair Highway at approximately milepost 0.000 to milepost 0.100 on Sunday, December 1, 2019 from 3:30pm to 5:00pm ATTACHMENT: Resolution Map RESOLUTION NUMBER COUNTY ROAD CLOSURE OLD BELFAIR HWY#98250 NOTICE IS HEREBY GIVEN that pursuant to RCW 47.48.020, a portion of Old Belfair Hwy,County Road No. 98250, shall be closed to all through traffic on Sunday, December 1,2019 from 3:30pm to 5:00 pm(milepost 0.000 to milepost 0.100). NOW THEREFORE,BE IT RESOLVED,the Board of County Commissioners has declared the above described road closure a necessity for public safety during the North Mason Community Celebration Committee Belfair Christmas Parade event. THEREFORE, the County Engineer is hereby ordered and authorized to proceed as prescribed by law. ADOPTED this_day of , 2019. BOARD OF COUNTY COMMISSIONERS MASON COUNTY,WASHINGTON Kevin Shutty, Chair ATTEST: Sharon Trask, Vice Chair Melissa Drewry, Clerk of the Board APPROVED AS TO FORM: Randy Neatherlin, Commissioner Tim Whitehead, Chief Deputy Prosecuting Attorney cc: Commissioners Engineer JOURNAL: Publ. It.: 11/21/19(Bill Road Dept.) POST: At Least three 3) days prior to closure. Yr � • j � u��j , .� ` � r w�� r+ ; '''" �► yrs �> RL AL Fe ♦ . 40* t i f OW lava - . ;• . _ 14. r-4 'j , ,s:r� 1 tt�• Al Flof yy • I �i t P'lip 1. BCF Parade Route Belfair Christmas Parade 2019 MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Sheesley, County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: November 12, 2019 Agenda Item # .7 BRIEFING DATE: November 4, 2019 BRIEFING PRESENTED BY: Loretta Swanson and Diane Sheesley [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Cooperative Streamgaging Program on the Skokomish River BACKGROUND: The Department of the Interior U.S. Geological Survey (USGS) operates and maintains the network of streamflow monitoring gage stations on the Skokomish River near Potlatch and Union for the purpose of flood forecasting, documentation, flow regulations and fisheries enhancement. Most of these stations are funded through a joint agreement between the USGS and Tacoma Public Utilities; however Mason County, the Department of Ecology and the U.S. Geological Survey fund the South Fork Skokomish gage. The river at this site is unregulated by dams and provides an excellent measure of the natural runoff of the upper basin, particularly during floods. Mason County also participates in funding real time data transmission at the gage near Potlatch. Budget Impacts: The total fixed cost of this program is $9,780, of which Mason County's portion of the annual cost is $6,166. The remainder ($3,614) is funded by the USGS Federal Priority Streamgage Program. Mason County's share is paid out of the Skokomish Flood Control Zone Fund. RECOMMENDED ACTION: Recommend the Board authorize the Chair to sign Joint Funding Agreement #20YGJFA03400 with the US Department of the Interior, U.S. Geological Survey, for the period October 1, 2019, to September 30, 2020. Attachment: Agreement Form 9-1366 U.S. DEPARTMENT OF THE INTERIOR Customer#: 6000000725 (May 2018) GEOLOGICAL SURVEY Agreement#: 20YGJFA03400 Project#: YGOOHIU JOINT FUNDING AGREEMENT TIN#: 91-6001354 Fixed Cost Yes Agreement FOR WATER RESOURCES INVESTIGATIONS THIS AGREEMENT is entered into as of the, 1 day of October, 2019 by the U.S. GEOLOGICAL SURVEY, UNITED STATES DEPARTMENT OF THE INTERIOR, party of the first part, and the County of Mason, party of the second part. 1. The parties hereto agree that subject to availability of appropriations and in accordance with their respective authorities there shall be maintained in cooperation a fixed-price agreement for the operation and maintenance of streamgages on the Skokomish River near Potlatch and Union, herein called the program. The USGS legal authority is 43 USC 36C; 43 USC 50; and 43 USC 50b. 2. The following amounts shall be contributed to cover all of the cost of the necessary field and analytical work directly related to this program. 2(b) includes In-Kind Services in the amount of$ (a) by the party of the first part during the period Amount Date to Date $0 October 1, 2019 September 30,2020 (b) by the party of the second part during the period Amount Date to Date $6,166 October 1, 2019 September 30,2020 (c) Contributions are provided by the party of the first part through other USGS regional or national programs, in the amount of: $3,614 Description of the USGS regional/nations program: USGS Federal Priority Streamgage Program (d) Additional or reduced amounts by each party during the above period or succeeding periods as may be determined by mutual agreement and set forth in an exchange of letters between the parties. (e) The performance period may be changed by mutual agreement and set forth in an exchange of letters between the parties. 3. The costs of this program may be paid by either party in conformity with the laws and regulations respectively governing each party. 4. The field and analytical work pertaining to this program shall be under the direction of or subject to periodic review by an authorized representative of the party of the first part. 5. The areas to be included in the program shall be determined by mutual agreement between the parties hereto or their authorized representatives. The methods employed in the field and office shall be those adopted by the party of the first part to insure the required standards of accuracy subject to modification by mutual agreement. 6. During the course of this program, all field and analytical work of either party pertaining to this program shall be open to the inspection of the other party, and if the work is not being carried on in a mutually satisfactory manner, either party may terminate this agreement upon 60 days written notice to the other party. 9=1266(Continuation) Customer#:6000000725 Agreement#:20YGJFA03400 T The original records resulting from this program will be deposited in the office of origin of those records. Upon request, copies of the original records will be provided to the office of the other party. 8. The maps, records, or reports resulting from this program shall be made available to the public as promptly as possible. The maps, records, or reports normally will be published by the party of the first part. However, the party of the second part reserves the right to publish the results of this program and, if already published by the party of the first part shall, upon request, be Furnished by the party of the first part, at costs, impressions suitable for purposes of reproduction similar to that for which the original copy was prepared. The maps, records, or reports published by either party shall contain a statement of the cooperative relations between the parties. The Parties acknowledge that scientific information and data development as a result of the Scope of Work(SOW)are subject to applicable USGS review, approval, and release requirements,which are available on the USGS Fundamental Science Practices website(https;llwvw2.usgs.govtfspt). 9. Billing for this agreement will be rendered: ANNUALLY. Invoices not paid within 60 days from the billing date will bear Interest, Penalties, and Administrative cost at the annual rate pursuant the Debt Collection Act of 1982, (codified at 31 U.S.C. §3717)established by the U.S.Treasury. U.S. Geological Survey Name of Customer United States County of Mason Department of the Interior USGS Point of Contact Customer Point of Contact Name: Mark Mastin Name: Diane Sheesley Address: 934 Broadway, Suite 300 Address: 100 W Public Works Dr. Tacoma,WA 98402 Shelton,WA 98584 Telephone: 253-552-1609 Telephone: 360-427-9670 x452 Email: mcmastin@usgs.gov Email: dsheesley@co.mason.wa.us Org Code. GGWNYG0000 Signature and Date: Signature and Date: Signature: � '� �. Signature: Date: Date: Name: Cynthia Barton, PhD, LHG, LG Name: Title: Center Director Title: Signature: Date: Name: Title: MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Sheesley, County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: November 12, 2019 Agenda Item # BRIEFING DATE: November 4, 2019 BRIEFING PRESENTED BY: Loretta Swanson and Diane Sheesley [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Road Vacation #399 — Set Hearing Date w/Hearings Examiner BACKGROUND: Public Works received a request to vacate a portion of West Walnut Street that is located adjacent and North of 121 W Walnut Street. This request has been made by Mary Leighton and she is the owner of the property at 121 W Walnut Street. The 30 foot portion of Walnut Street that she has petitioned to be vacated appears to have never been opened for public use nor maintained by the Mason County for road purposes. There are also overhead utility lines that pass through the requested area of vacation. Public Works has prepared an Engineer's Report for the Hearings Examiner (copy attached) and is requesting the Board approve to set a hearing date with the Hearings Examiner. RECOMMENDED ACTION: Recommend the Board approve the resolution setting a hearing date with the Hearings Examiner for Wednesday, December 11, 2019 at 1:00pm to consider public comment on the petition for vacation of the South half of W Walnut Street laying North of 121 W Walnut Street in the Plat of Moore's Addition to Shelton Block 4 Lots 1 — 4. ATTACHMENTS: Engineer's Report Hearing Notice MASON COUNTY DEPARTMENT of PUBLIC WORKS 100 W PUBLIC WORKS DRIVE lop SHELTON, WASHINGTON 98584 MEMORANDUM DATE: October 18, 2019 TO: Mason County Hearings Examiner FROM: Phil Franklin, Right of Way Agent, for Diane Sheesley,, County Engineer Cc: Loretta Swanson, Public Works Director SUBJECT: ENGINEER'S REPORT—ROAD VACATION FILE NO. 399 Vacation of South 30 feet of W. Walnut Street Adjacent to Block 4 between N 3rd And N 4th Street Background: Mary Leighton,121 W Walnut Street,has petitioned Mason County Public Works to vacate the unopened 30 feet of W Walnut Street that lays adjacent to her property that is located at 121 W Walnut Street.This requested vacation area is located North of Ms. Leighton's property and is what would be the south 30 feet of W Walnut Street that was dedicated in Moore's Addition to the City of Shelton Plat. This plat was dedicated in 1937. Ms. Leighton purchased this property in March of 2016 on a bank repossession sale from US Bank National Association TRS. Ms. Leighton is asking for this vacation because the street was never opened and the area where the street would be located is not maintained. In compliance with RCW 36.87.40, at the Board of County Commissioners and County Engineer's direction, Public Works Department staff examined the portion of road right-of-way requested to be vacated and solicited comments on the proposed vacation. Our findings are the following: 1. The dedicated street is not presently in use by the public. 2. The road is classified as "Class A" per MCC 12.20.040 and no compensation for fee simple interest or appraisal is due prior to vacation. 3. The proposed vacation area is located in the City of Shelton's Urban Growth Area(UGA). The City of Shelton requests the vacation not be allowed because of possible connectivity to the general area if needed in the future. Please see exhibit enclosed as documentation on the City of Shelton's input to the possible vacation of requested area. 4. PUD#3 has a utility pole located within the requested vacation area and an easement must be retained for utility purposes. Because of a recently constructed wood fence, PUD has questions on how they are going to be able to access the utility pole if service is needed. 5. Current access to the surrounding area is limited with one two way access on W Poplar Street and a one way street on Moore Avenue that allows traffic to only flow on to Northcliff Road but does not allow traffic to exit off of Northcliff Road on to Moore Ave. Public Notice Public notice has been provided as required by RCW 36.87.050, both by posting at the site and by publishing in the county official newspaper. Recommendation Public Works recommends the vacation of the South 30 feet of Walnut Street that is located North of Block 4 lots 1—4 in Moore's Addition to the City of Shelton, as petitioned, not be allowed based on the request from the City of Shelton and the lack of alternative access routes to the general area in the future. Hearing Examiner Options 1. Find that this vacation meets the standards established by state law and recommend the vacation be granted as petitioned. 2. Find that this vacation fails to meet the standards established by state law and recommend the vacation be denied. 3. Finding that only part of the vacation as petitioned or recommended by the County Engineer complies with the law, develop recommendations to grant the compliant portion and deny the other. Attachments: • Petition • Comments from other County and City Departments(6 pages) • Exhibits 1 -6 Aerials and Pictures of right of way requested to vacate • Legal Description Page 1 of 1 Phillip Franklin - Re: Walnut Street Vacation Request From: Terry Conley To: Franklin, Phillip Date: 2/19/2019 7:44 AM Subject: Re:Walnut Street Vacation Request CC: Chris Jorgensen Phil I,1 met on site with the PUD#3 Chris Jorgensen,We both had concerns about accessing their utilities 24-7. Chris was going to check to see if they had a written agreement.If there is a written agreement for access to all of the utilities,I wouldn't have a problem with this vacation.RCW 36.87.140 is a part of this resolution but doesn't show up on a title report. Terry >>> Phillip Franklin 1/30/2019 10:41 AM >>> Terry and Brenen, Mary Leighton has put in a petition for a Vacation of a County Road on Walnut Street. I know both of you are somewhat familiar with this, Brenen, you more than Terry, but cold you both send me an email of input on how you feel about this request and please make sure to outline any concerns you may have if it were to be vacated. The applicant already understands that the PUD has utilities through the area,at least she told me that,but please let me know of any other concerns you have. Thanks, Phil Phil Fi-mikliii Right Of Way Agent Mason County Public Works 13601427-9670 ext.456 odf@co.mason.wa.us Page 1 file:///C:/UseI's/Pd1%AppData/Local/Temp/XPerp�vise/5C613133C 1 Masonmail 10017531321... 2/21/2019 Page 1 of 1 Phillip Franklin - Re: Walnut Street Vacation Request From: Brenen Profitt To: Franklin, Phillip Date: 1/31/2019 6:10 AM Subject: Re:Walnut Street Vacation Request Hey Phil, I have no issues with the vacation of the marked area on Walnut Street.The area is not part of the county maintained road system.The only thing I see is the utilities that run through the section but that is of no concern to roads. Thanks, Brenen Protitt Road Maintenance Supervisor Mason County Public Works Office-(360)427 9670,x528 Cell-(360)968 9036 >>> Phillip Franklin 1/30/2019 10:41 AM >>> Terry and Brenen, Mary Leighton has put in a petition for a Vacation of a County Road on Walnut Street. know both of you are somewhat familiar with this, Brenen, you more than Terry, but cold you both send me an email of input on how you feel about this request and please make sure to outline any concerns you may have if it were to be vacated. The applicant already understands that the PUD has utilities through the area,at least she told me that, but please let me know of any other concerns you have. Thanks, Phil Phil Fr-anklin Right Of Way Agent Mason County Public Works 13601427-9670 ext.456 udf(@co.mason.wa.us Page 2 fi le:///C:/Users/Pdf/AppData/Local/Temp/XPgrpwise/5C529143Masonmai 1100175313212... 1/3)1/2019 RE: Vacation for portion of Walnumt Street Page I of 1 Reply I Delete Junk RE: Vacation for portion of Walnumt Street • Craig Gregory <craig.gregory@sheltonwa.gov> Reply 40 Tue 8/20, 10:45 AM Phil Franklin You replied on 8/20/2019 10:48 AM. Label:MasonCounty(3 months)Expires: 11/18/2019 10:45 AM Phil, At this time the City of Shelton would not recommend vacation of the roadways. With the width and connectivity in the area we would recommend having the option to improve the ROW. Craig From: Phil Franklin [mailto:Pdf@co.mason.wa.us] Sent:Tuesday,August 20, 2019 7:36 AM To:Craig Gregory<craig.gregory@sheltonwa.gov> Subject:Vacation for portion of Walnumt Street Craig, I have not heard anything back from yourself or any other representative from the City of Shelton since my last email to you that included the original email and attachments that described the requested street vacation by Mary Leighton for the vacation of the South 30 feet of Walnut Street adjacent to 121 W Walnut Street. have attached the petition that I received from Ms. Leighton, again, for your review. I would appreciate an email response from you by Friday the 23rd of August and if not I will assume that the City has no comment on this requested vacation. The reason that I have contacted the city is because this area is in the UGA and I believe that city utilities are located in the general area of Walnut street. I look forward to your response and appreciate your response and input. Regards, Phil Franklin Right of Way Agent Mason County Public Works The City of Shelton is subject to the Washington Public Records Act,Chapter 42.56 RCW.This message and any attachments may constitute records subject to public disclosure pursuant to the Act. Page 3 https:Howa.co.iiiason.wa.us/owa/ 8/29/2019 Page l of Phillip Fraulclin - Fwd: Walnut Street Vacation Request From: Michael MacSems To: Rowen,Kell; gbm Date: 1/30/2019 12:07 PM Subject: Fwd: Walnut Street Vacation Request CC: Dose, Jason; Franklin, Phillip Attachments: Walnut Vacation.pdf Does any one have any comments or concerns about vacating an unupened section of Walnut St in the Shelton UGA?I knowthat hying to maintainthe grid is important but I'm not sure that this is a concern in this instance. Thanks, Michael >>>Phillip Franklin 1/30/2019 11:07 AM>>> Michael, Yet another Petition for Vacation of a County road. Mary Leighton has tuned in a request for the county to vacate a portion of Walnut Street up on Northcliff close to the city of Shelton. I have attached some aerial shots of the area she is requesting to be vacated and I have marked the approximate area she has requested to be vacated, Please let me know if you have any questions,comments or concerns on the request and please pass it along to any of your co-workers that may have any input on the request also. Please have them contact me if they need to discuss any thing with me about the possible vacation. Thank you for you time, Phil Phil Franklin Right Of Way Agent Mason County Public Works (360)427-9670 ext.456 i)d[@.co.niasoii.wa.us Page 4 Page l of 2 Phillip Frauldin - Re: Fwd: Walnut Street Vacation Request t�cvc-.o'.v.Ycxrvr...cnc��..xasavrrs����rr-raxra:v�napam�..Ar�ar From: Michael MacSems To: Franklin, Phillip Date: 5/22/2019 3:59 PM Subject: Re: Fwd: Walnut Street Vacation Request CC: Rowen,Kell Phil, Given that I have received no feed back on your question, I think it is safe to say that the Planning Dept has no objection to the street vacation. Michael >>> Phillip Franklin 5/20/2019 8:13 AM>>> Michael, I know you passed this along to other folks in your department to comment on and I can't remember who it was that sent me -ui email, but they made the comment that they wanted to contact the City. I noted in a return email that the street is not part of the city that the county owned the street and they responded with an oh,ok,missed that type of response and I don't believe that I have heard anything back since. Could you please check around and see if anyone has anything form me on the Leighton Vacation on Walnut Street. Thanks so much, Phil Phil Franklin Right Of Way Agent Mason County Public Works (3601427-9670 ext.456 pdf@co.mason,wa.us co.mason.wa.us >>> Michael MacSems 1/30/2019 12:07 PM>>> Does any one have any comments or concerns about vacating an tulopened section of Walnut St ui the Shelton UGA? I know that trying to maintain the grid is important but I'm not sure that this is a concern in this instance. Thanks, Michael >>> Phillip Franklin 1/30/2019 11:07 AM>>> Michael, Yet another Petition for Vacation of a County road. Page 5 • Page 2 of 2 Mary Leighton has turned in a request for the county to vacate a portion of Walnut Street up on Northcliff close to the city of Shelton. I have attached some aerial shots of the area she is requesting to be vacated and I have marked the approximate area she has requested to be vacated. Please let me know if you have any questions,comments or concerns on the request and please pass it along to any of your co-workers that may have any input on the request also. Please have them contact me if they need to discuss any thing with me about the possible vacation. Thank you for you time, Phil Phil Fi-anlclin Right Of Way Agent Mason County Public Wodi s (360)427-9670 ext.456 Ddffi-co.mason.imus Page 6 file:///C:/Users/Pdf/AppData/Local/Temp/XPgrpwise/5CE571 D4Masonmail10017531321... 5/28/2019 ' Mason County WA GIS , Page 1u[| Ma5On County WA GIS + Se+u` hYPane| ------ — A—''' _ nIRn+ LIFfpo t _ �� Fm��s, designate area being F2qU8StBd for VaC8t'OO ' | ' F-` ' `~ tmwmmLNmmT 32018 000umn 1109moenyouprRo :�w}d�he�H0d ` 320184200020 ozom ` oaovosxosvoo 320184200000 3201853o5no/ bttps://Visco.uomoo.xa.uutnus*n/ C)(B[B[T#/ |80Z0lV Mason County QUA GIS Page 1 of t IV)as� •I Mason County WA GIS + Ly Search by Parcel or Addres CZ 1 302 W WALNUT S 222 yy.LNUTST 200 W WAL UT ST • 11i1;41tido KITST '220POPLA ST 1015 N•2ND ST cr • Petitioner's Property T z r � N hOOkEsa4r 114W )PLAR� 212 W POP Two Way Access fro orthdiff� • 1 125 POPLAR ST • Way Ace ss to North �i vv b'4'F'GF�q � of 203 N 201 E MOORE A • -'0ott EXHIBIT#2 https://gis.co.mason.wa.us/mason/ 9/17112)0 19 Legend Untitled Map -40 Write a descriDtion for your map. - >Sx•}4 {-• �h A� ,•r •- is�A� r ~ r? / '/r 1 r '•'rte*04 �` �s' ^► , r -.. . r /� �� '� / .,.• � •vim �. R7 4,1 y _ . 7. Mason County WA GIS i Mason County WA GI_; OSO '-Ock. i t ,,, 1 . y - Cai _ F;f2afib J �^Jai; .4c�om F7orthcli` 411 � pis r 'w t tt A. ` r h https://gis.co.masoii.%va.us/mason/ EXHIBIT#4 9/17/2019 i •�. � .,:_.e+ �rte.� ._� ,� ,.. QN �. 1 - J►r a ', �1f"' ` � r. ' r r �• . �, ''fes �� �� C ��'�� '�• ... , r t , F p Looking from the intersection of Walnut and 3rd Street (East to Nest) EXHIBIT#5 Fk Ell jz tit,• �y r�r.��'.• � - � r Close up view of some of the area requested to vacate EXHIBIT#6 RESOLUTION NO. VACATION FILE NO.399 NOTICE OF INTENT TO VACATE SETTING TIME AND PLACE FOR HEARING ON SAID VACATION RCW 36.87 IN THE MATTER OF THE VACATION OF THE SOUTH 30 FEET OF WALNUT STREET THAT LAYS NORTH OF BLOCK 4 LOTS 1 -4 IN THE PLAT MOORE'S ADDITION TO THE CITY OF SHELTON WHEREAS, NOTICE IS HEREBY GIVEN that the Mason County Public Works Department is requesting for the review of a vacation request of the following right of way: All that portion of"Plat of Moore's Addition to the City of Shelton", per Plat recorded in Volume 4, Page 13, records of Mason County, Washington, described as follows: The south 30 feet of Walnut Street laying adjacent and North of Lots 1 - 4 of Block 4 in the Plat of Moore's Addition to the City of Shelton, recorded on June 8, 1938 in the Mason County Auditor's Office Book of Plats, Volume 4 Page 13 WHEREAS, the Board of Mason County Commissioners did set a date for public hearing on the matter before the Hearing Examiner on the matter and directed Public Works to prepare notice thereof for posting and publication. NOW THEREFORE, BE IT RESOLVED that said hearing has been set for Wednesday, December 11, 2019 at 1:00 p.m. in the Commission Chambers, Mason County Courthouse Building I, 411 North Fifth Street, Shelton, Washington, at which time and place any taxpayer may appear to hear the County Engineer's report, and be heard either for or against the vacation of said the south 30 feet of Walnut Street that lays north of Block 4 Lots 1 - 4 in the plat of Moore's Addition to the City of Shelton. DATED this day of , 2019. BOARD OF COUNTY COMMISSIONERS MASON COUNTY, WASHINGTON ATTEST: Melissa Drewry, Clerk of the Board Kevin Shutty, Chair APPROVED AS TO FORM: Sharon Trask, Vice Chair Tim Whitehead, Ch. DPA Assessor Auditor Randy Neatherlin, Commissioner County Engineer Petitioner Post no later than (20 days prior to hearing at each terminus of the county road or portion thereof proposed to be vacated or abandoned.) Vacation File No. 399 JOURNAL—Publish 2t: 11/21/19— 11/28/19 (Bill Public Works) MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Sheesley, County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: November 12, 2019 Agenda Item # BRIEFING DATE: October 21, 2019 BRIEFING PRESENTED BY: Loretta Swanson and Diane Sheesley [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Vehicle/Equipment Towing and Tire Repair Services — County Vendor Roster BACKGROUND: Public Works/ER&R would like to open our annual solicitation to prospective vendors in order to establish a "Tire Repair Vendor Roster" and "Towing Services Vendor Roster" for these services utilized on an as-needed basis. These services are solicited annually and may be awarded to several companies. BUDGET IMPACT: Variable dependent on need. RECOMMENDED ACTION: Recommend the Board authorize for Public Works/ER&R to use the County Vendor Roster to solicit for vehicle and equipment towing and tire repair services for the 2020 calendar year and sign and award contract(s). Mason County does not guarantee a minimum purchase of these services. MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Jennifer Beierle Action Agenda _X_ Public Hearing Other DEPARTMENT: Support Services EXT: 532 DATE: November 12, 2019 Agenda Item # g Commissioner staff to complete) BRIEFING DATE: November 4, 2019 BRIEFING PRESENTED BY: Jennifer Beierle [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency Item: Approval for the Chair to sign Out of Class Pay/Lead/Special Pays for the year 2020 for the following individuals: Todd Cannon, Dawn Mesojednik, Genie McFarland, Grace Miller, Michael McIrvin, &Anna Smith Background: Mason County has five employees who are receiving Lead Pay due to increased responsibilities. Most of these employees have been receiving the special pay for extended lengths of time. There is also one new request for an employee to work in a higher classification beginning in 2020. The State Auditor would like an authorization tracking system in place to allow special pays (all of them) and the duration each are agreed upon. Human Resources has worked with Payroll and the Support Service Director to devise a form to authorize the special pays by the Board of County Commissioners. Moving forward these will be brought forward as they are requested. Recommended Action: Approval for the Chair to sign the six Out of Class/Lead/Special Pay Authorization Request Forms for Todd Cannon, Dawn Mesojednik, Genie McFarland, Grace Miller, Michael McIrvin, &Anna Smith, for the calendar year 2020. Attachment: Six Out of Class Pay/Lead/Special Pay Authorization Request Forms J:\Budget Office\Briefmg,Agenda,&Public Hearing Items\2019Wction Agenda-2020 Special Pays.doc r TEMPORARILY WORKING IN A HIGHER CLASS/ OUT OF CLASS/LEAD PAY - REQUEST FORM ❑Out of Class Pay ®Lead Pay ❑ Working in a Higher Class All out of class, lead,or temporarily working in a higher class pay requests must be submitted by the department head or elected official on this form to Human Resources for review and final approval by the Board of County Commissioners, rp ionto the assignment of additional duties. Employee Name:Todd Cannon Employee Job Title: Network Engineer Department: Information Technology Please insert the lead, out of class or temporarily working in a higher class pay language from the Collective Bargaining Agreement if applicable: SEE ATTACHED What specific job duties this employee will be performing outside of their current position description and for how long: Todd Cannon is an exempt employee who is called in for after hours IT issues with out compensation. Due to the possible complexity of those issues his skill set in required to handle most issues. Since the IT Manager is split between three departments,Todd assists with the day to day operations of the department including staff scheduling, assigning staff duties/assignments as well as first level supervision of the System Administrator and Database/Web Technician positions. Todd keeps the IT Manager aware of personnel and budgetary issues or concerns he discovers while performing the task of supervisor. Effective Date:January 1 , 2020 End Date: December 31 , 2020 *Attach a copy of the employee's current position description* rtm nature:nt Si �� � GLLa; Date: M�na�er/SuNervls�r�f�eNa e g Department Head/Elected Official Signatur Date: lt6lle Support Services Director Signature: Date: /! BOCC or Elected Official Signature: Date: cc:CMMRS/Elected Official/Department/Payroll TEMPORARILY WORKING IN A HIGHER CLASS/ 'Yi'. OUT OF CLASS/LEAD PAY - REQUEST FORM El out of Class Pay Lead Pay C] Working in a Higher Class All out of class, lead,or temporarily working in a higher class pay requests must be submitted by the department head or elected official on this form to Human Resources for review and final approval by the Board of County Commissioners,prior to the assignment of additional duties. Employee Name: DAwN yY1%_so Employee Job Title: ��wv.v. t. T teb��,o �p�„Ss to r Department: T Y Coy.r Saryi�S Please insert the lead,out of class or temporarily working in a higher class pay language from the Collective Bargaining Agreement if applicable: -` P(.,ASL - - What specific job duties this employee will be performing outside of their current position description and for how long: Effective Date: I ! 1 End Date: 3 t *Attach a copy of the employee's cur t osition description* f Manager/Supervisor of Department Signature: Date: Ao - Department Head/Elected Official Signature: Date: 9 5 19 Support Services Director Signature: Date: BOCC or Elected Official Signature: Date: cc:CMMRS/Elected Officlal/Department/Payroll .a�i�peox C�a'A t' f" Y TEMPORARILY WORKING IN A HIGHER CLASS/ OUT OF CLASS/LEAD PAY - REQUEST FORM El out of Class Pay ❑X Lead Pay ❑ Working in a Higher Class All out of class, lead, or temporarily working in a higher class pay requests must be submitted by the department head or elected official on this form to Human Resources for review and final approval by the Board of County Commissioners,prior to the assignment of additional duties. Employee Name:Genie McFarland Employee Job Title: Permit Specialist II Department: Community Services—Permit Assistance Center Please insert the lead, out of class or temporarily working in a higher-class pay language from the Collective Bargaining Agreement if applicable: Teamsters General Service Collective Article 10.5 Lead Worker—The County may designate an employee as a Lead Worker; such designation is not considered to be a "iob vacancy" or"newly created position", as referenced in Article 8 Seniority Section 2. A lead Worker will typically direct,oversee and/or organize the work of other employees although the County reserves the exclusive right to make a Lead Worker designation based on other factors and rationale. The Lead Worker cannot hire, fire, or discipline other employees within the Teamsters bargaining unit. This job classification is used at the discretion of management (and with prior approval of the Board of County Commissioners). A Department Head will post within his/her Department a notice of intent to appoint a Lead Worker. He/She will give full consideration to all departmental applicants before going outside his/her department. Any employee who acts as Lead Worker will receive an additional ten percent (10%) salary for the period of time they perform that function. What specific job duties this employee will be performing outside of their current position description and for how long: As a Lead Worker Genie serves asthe lead over the front counter ofthe Permit Center,providing training, guidance and mentorship to the two Permit Technicians and the Clerical staff that schedules all inspections and answers the main phone line for the Permit Assistance Center (PAC). Ensures there is daily coverage for these positions and juggle the schedules as necessary to be certain there is phone . coverage lunch coverage and the public is served at the counter. Genie provides organizational knowledge to PAC and the all Community Development Staff based on her 26 years of experience. Ensures Permit Technicians stay current on training and has attended Public Records training herself to ensure cc:CMMRS/Elected Official/Department/Payroll they are processed properly. Provides the duties of the County Addressor since the position was eliminated in 2009 due to budget cuts Handles the more complex residential and commercial permit application in-takes Interpret the building code and provide guidance on how to apply the code. Provide advice on how to improve the permit process including in-take scheduling inspections, plan review and the issuance of the permit Acts as a liaison between the Community Service Director and the Permit Center by providing input on policy development and situational awareness. Effective Date: 10/1/15 End Date: Manager/Sup Isor e t Signature: Date: Z0(.��5e��iz Department Head/Elected Official Signature: Date: Support Services Director Signature: Date: 9l BOCC or Elected Official Signature: Date: Attach a copy of the following: Department notes; ' Employee's current position description; Munis notes; and Current Salary Range. cc:CMMRS/Elected Official/Department/Payroll 1 TEMPORARILY WORKING IN A HIGHER CLASS/ OUT OF CLASS/LEAD PAY - REQUEST FORM 1771 Out of Class Pay ®Lead Pay ❑ Working in a Higher Class All out of class, lead,or temporarily working in a higher'class pay requests must be submitted by the department head or elected official on this form to Human Resources for review and final approval by the Board of County Commissioners,prior to the assignment of additional duties. Employee Name:Grace Miller Employee Job Title:Planner Lead Department:Community Services—Planning Please insert the lead, out of class or temporarily working in a higher-class pay language from the Collective Bargaining Agreement if applicable: Teamsters General Service Collective Article 10.5 Lead Worker—The County may designate an employee as a Lead Worker;such designation is not considered to be a "iob vacancy"or"newly created position", as referenced in Article 8 Seniority Section 2. A lead Worker will typically direct,oversee and/or organize { the work of other employees although the County reserves the exclusive right to make a Lead Worker designation based on other factors and rationale.The Lead Worker cannot hire,fire, or discipline other employees within the Teamsters bargaining unit. This iob classification is used at the discretion of management(and with prior approval of the Board of County Commissioners) A Department Head anrill post within his/her Department a notice of intent to appoint a Lead Worker. He/She will give full consideration to all departmental applicants before going outside his/her department. Any employee who acts as Lead Worker will receive an additional ten percent(10%)salary for the period of time they perform that function. What specific job duties this employee will be performing outside of their current position description and for how long: As a Lead Worker Grace works closely with the Planning Manager to.provide the assistance.necessary to support the Current Planning needs of the County. Her responsibility includes overseeing and organizing the case loads of three of the current Planners including herself, to ensure the case load is evenly distributed Grace is responsible for the area of the county which has the most development.She is also responsible for most of the complex cases. Grace trains all the new Planners hired. Responsible for Presenting training opportunities to the management. Based on Grace's 32 years of service in Planning she is given all of the complex and controversial assignments.As Lead Planner,she handles most of the cc;CMMRS/Elected Official/Department/Payroll tl hearing examiner cases Since 2011 at the request of the directors and commissioners she had attended all of the Shellfish Interagency Permitting Team meetings with the State.Tribes,and Federal Government members She is assigned to the large scale Tacoma Power Projects such as the Fish Collector Facility at the dams She also handles the large commercial projects such as Tractor Supply.Company, Fraser Metalworks and Taylor Shellfish Processing Plant with Wet Storage Facility,etc Grace takes on as the Lead Planner along with ensuring the department is balanced and the customers' needs are met many projects. Effective Date: 10/1/15 End Date: �' 2"'l Manager/Supe 'Mlo_`;_C _ Signature: / Date: Department Head/Elected Official Signature: Date: Support.Services Director Signature: Date: BOCC or Elected Official Signature: Date:. Attach a copy of the following: Department notes; Employee's current position description; Munis notes; and Current Salary Range. cc:CMMRS/Elected Official/Department/Payroll TEMPORARILY WORKING IN A HIGHER CLASS/ 4= 'xj4- OUT OF CLASS/LEAD PAY - REQUEST FORM ❑Out of Class Pay *Lead Pay ❑ Working in a Higher Class All out of class,lead, or temporarily working in a higher class pay requests must be submitted bythe department head or elected official on this form to Human Resources for review and final approval by the Board of County Commissioners, rp iof to the assignment of additional duties. Employee Name: Michael Mclrvin Employee lob Title: Senior Party Chief Tech IV Department: Public Works Please insert the lead, out of class or temporarily working in a higher class pay language from the Collective Bargaining Agreement if applicable: Engineer's Guild Article 10.3 - Lead Worker The county may designate an employee as a Lead Worker,such designation is not considered a"job vacancy"or"newly created position"... A Lead Worker will typically direct,oversee and/or organize the work of other employees..,,the Lead Worker cannot hire,fire,or discipline other employees,.. Any employee who acts as a Lead Worker will receive an additional ten percent(10%)salary for the period of time they perform that function. What specific job duties this employee will be performing outside of their current position description and for how long: Mike is performing the daily duties of the Survey Supervisor position(previously held by now-retired Alan Duback). The managerial duties of the Survey Supervisor position are performed by the Engineering and Construction Manager.As Lead Worker,the following duties are performed: Coordinates survey section work both within and outside the department;oversees and performs surveys;performs complex calculations;ensures survey section safety;conducts training;researches and purchases survey equipment;manages and maintains inventory;performs field back-up as necessary. Effective Date: 7/1/2015 End Date: *Attach a copy of the employee's current position description' Manager/Supervisor of Department Signature: Date: 10dr I / Department Head/Elected Official Signature: GQ rTY) Date: 1°/31(20 Ig Support Services Director Signature: Date: BOCC or Elected Official Signature: Date: cc:CMMRS/Elected Official/Department/Payroll TEMPORARILY WORKING IN A HIGHER CLASS/ OUT OF CLASS/LEAD PAY - REQUEST FORM 90ut of Class Pay ❑Lead Pay Working in a Higher Class All out of class,lead,or temporarily working in a higher class pay requests must be submitted by the department head or elected official on this form to Human Resources for review and final approval by the Board of County Commissioners,prior to the assignment of additional duties. Employee Name:Anna Smith Employee Job Title: Finance Accounting Deputy I Department:Treasurer Please insert the lead,out of class or temporarily working in a higher class pay language from the Collective Bargaining Agreement if applicable: AFSCME 10.3 A supervisor may assign an employee to perform the primary duties of a higher classification when those duties are not part of the employee's current job classification,for the purposes of providing coverage during an authorized vacation,sick leave,leave of absence or currently vacant position. If the employee is scheduled to work in the higher classification for a minimum of three(3)consecutive workdays the employee shall be paid on the step of the salary range for the higher classification that provides for at least a five percent(5%)increase What specific job duties this employee will be performing outside of their current position description and for how long: Daily duties of the Finance Accounting Deputy II, Banking and Investments position or the daily duties of the Finance Accounting Deputy II, Billing Specialist position. How long depends on the approved leave absences of these two higher positions through out the year. To meet the three (3)day threshold,this position generally covers during vacations or for extended illnesses. Effective Date:January 1 End Date: On going *Attach a copy of the employee's current position description* Manager/Supervisor of Department Signature: Date: f Department Head/Elected Official Signature: Date: 8/12/19 Support Services Director Signature: Date: h4 9 BOCC or Elected Official Signature: �o �� a .I Date:8/12/19 cc:CMMRS/Elected official/Department/Payroll MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Zoren Action Agenda x Public Hearing Other DEPARTMENT: Support Services EXT: 747 DATE: November 12, 2019 Agenda Item # g 1 Commissioner staff to complete) BRIEFING DATE: November 4, 2019 BRIEFING PRESENTED BY: Support Services [ ] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency ITEM: Approval of the agreement with Northwest Event Organizers (NEO) and Shelton Mason County Chamber of Commerce (COC) for the temporary use of Building 10 and parking lot to support holiday tourism efforts. The agreement is for the period of November 25, 2019 to December 31, 2019 in the amount of $2,000. Background: A request for temporary use of Mason County Building 10 and parking lot located at 414 W Franklin Street, Shelton has been received from NEO and COC to support holiday tourism efforts. The proposal is attached. Budget Impacts: $2,000 additional revenue RECOMMENDED ACTION: Approval of the agreement with Northwest Event Organizers (NEO) and Shelton Mason County Chamber of Commerce (COC) for the temporary use of Building 10 and parking lot to support holiday tourism efforts. The agreement is for the period of November 25, 2019 to December 31, 2019 in the amount of$2,000. Attachment(s): proposal and agreement AGREEMENT BETWEEN MASON COUNTY, NORTHWEST EVENT ORGANIZERS and SHELTON MASON COUNTY CHAMBER OF COMMERCE FOR TEMPORARY USE OF MASON COUNTY BUILDING 10 AND PARKING LOT WHEREAS, THIS AGREEMENT made this day by and between Mason County, 411 N Fifth Street, Shelton, WA 98584, (hereinafter "MC"), and Northwest Event Organizers and Shelton Mason County Chamber of Commerce, Shelton,WA 98584(hereinafter"NEO/COC"). WHEREAS, MC is the owner of Building 10, which is a vacant building located at 414 W Franklin Street, Shelton, WA 98584.NEO/COC desires to use the Building 10 to support tourism activities in the month of December 2019. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the parties agree as follows: 1. The initial term of this AGREEMENT for the use of Building 10 and parking lot facilities is November 25,2019 to December 31,2019 . 2. Immediate revocation in the event of a violation of any of the terms and conditions of this AGREEMENT; 3. In the event such use shall become, for any reason, dangerous or any structure of obstruction permitted shall become insecure or unsafe,will result in immediate revocation,without notice. 4. If any use or occupancy for which this AGREEMENT has been revoked is not immediately discontinued, MC may remove any such structure or obstruct or cause to be made such repairs upon the structure or obstruction as may be necessary to render the same secure and safe, or adjourn any special event the cost of expense of which shall assessed against NEO/COC including all professional fees associated with enforcement of the collection of the same. 5. NEO/COC accepts and agrees to use Building 10 and the parking lot "as is". MC will not be required to maintain the parking lot and any improvements to the parking lot shall be at the expense of NEO/COC. Prior to making any significant repair or modification to the parking lot, NEO/COC shall obtain the consent of MC. MC shall not be responsible for repaving the lot, should it become damaged while being used by NEO/COC. 6. NEO/COC will ensure that all fire hydrants and Fire Department Connections are accessible and NOT obstructed by vehicles or displays. 7. NEO/COC will ensure that "Responsible Parties" are readily identifiable by the use of, and waring of a high-visibility vest, or other means of identification, by Emergency Services Personnel(Law,Fire,EMS), if necessary. 8. If there are temporary vendors participating in the NEO/COC event, NEO/COC agrees to submit a listing of all temporary vendors and their contact information to Support Services along with their proof of insurance. Any food vendors cooking food using portable gas-fueled equipment shall provide not less than one (1) fire extinguisher rated 2A, 1 OB:C (5# Dry Chemical). Vendors utilizing deep-frying equipment shall provide a Class "K" fire extinguisher IN ADDITION TO the fire extinguisher required above. Portable LPG cylinders (5 gals or more) used for fuel for gas-fueled equipment shall be stored not less than 5 feet from open flame or ......... .........- ....... __ _....... ......_-... _ _... 1Page equipment. Electrical appliances and extension cords, if used, shall be free of mechanical defects, the size(ampacity)of the cord shall not be less than the appliance supplied by the cord. 9. Must ensure adequate clearance on all sidewalks for pedestrians per ADA requirements. Maintain access/control of participants in the event of a fire/medical response. 10. NEO/COC will provide sufficient event personnel for crowd control and parking requirements. 11. All animals much be under physical control of owner. Pet waste must be immediately cleaned up and disposed of. 12. NEO/COC shall be responsible for providing sufficient sanitation facilities,additional trash receptacles and any required minor maintenance of the parking lot such as trash removal. NEO/COC shall provide for post event clean up. 13. NEO/COC shall be responsible for acquiring the necessary permits required by the City of Shelton including but not limited to a temporary occupancy permit. 14. NEO/COC agrees to comply with Mason County Code 9.44.041, which prohibits smoking on County facilities,and 15. The consumption and/or sale of alcohol is prohibited on all MC facilities and/or properties, including but not limited to Building 10 and parking lot located at 414 W Franklin Street, Shelton,WA 98584. 16. To the fullest extent permitted by law, NEO/COC and its employees, vendors, participants, agents and/or volunteers agree to indemnify, defend and hold MC and its departments, elected and appointed officials, employees, agents and volunteers, harmless from and against any and all claims, damages, losses and expenses, including but not limited to court costs, attorney's fees and alternative dispute resolution costs, for any personal injury, for any bodily injury, sickness, disease or death and for any damage to or destruction of any property (including the loss of use resulting therefrom), which 1) are caused in whole or in part by any act or omission, negligent or otherwise,of NEO/COC, its employees,vendors,participants, agents and/or volunteers; or 2)are directly or indirectly arising out of, resulting from, or in connection with performance of this AGREEMENT; or 3) are based upon NEO/COC's and its employees, vendors, participants, agents and/or volunteers use of, presence upon or proximity to the property of MC. This indemnification obligation of NEO/COC shall not apply in the limited circumstance where the claim, damage, loss or expense is caused by the sole negligence of MC. This indemnification obligation of NEO/COC shall not be limited in any way by the Washington State Industrial Insurance Act, RCW Title 51, or by application of any other workmen's compensation act, disability benefit act or other employee benefit act, and NEO/COC hereby expressly waives any immunity afforded by such acts. The foregoing indemnification obligations of NEO/COC are a material inducement to MC to enter into this AGREEMENT, are reflected in NEO/COC's compensation, and have been mutually negotiated by the parties. MC reserves the right, but not the obligation, to participate in the defense of any claim, damages, losses or expenses and such participation shall not constitute a waiver of NEO/COC's indemnity obligations under this AGREEMENT. NEO/COC agrees all NEO/COC's indemnity obligations shall survive the completion, expiration or termination of this AGREEMENT. In the event NEO/COC enters into subcontracts with vendors to the extent allowed under this AGREEMENT,NEO/COC's vendors shall indemnify MC on a basis equal to or exceeding NEO/COC's indemnity obligations to MC. ......... 21Page 17. NEO/COC agree to provide evidence of the insurance required herein no later than ten(10) days before the event, satisfactory to MC, consisting of. Certificate(s) of Insurance naming Mason County as an additional insured. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate. Any actual or alleged failure on the part of MC, under these requirements, to obtain proof of insurance required under this AGREEMENT in no way waives any right or remedy of MC, in this or in any other regard. 18. NEO/COC will pay a total of two thousand($2,000)dollars for use of Building 10 and parking lot for the period of 11/25/19 to 12/31/19. 19. Non-Compliance with any of the above may result in closure of the activities until compliance is realized. IN WITNESS WHEREOF, COUNTY and NEO/COC have executed this AGREEMENT as of the 12TH day of November, 2019. Northwest Event Organizers Shelton Mason County Chamber of Commerce SHELTON, WASHINGTON SHELTON, WASHINGTON Rachel Hansen Heidi McCutcheon BOARD OF MASON COUNTY COMMISSIONERS MASON COUNTY, WASHINGTON Kevin Shutty, Chair Sharon Trask Randy Neatherlin Commissioner Commissioner Commissioner Approved as to form: Timothy Whitehead Chief Deputy Prosecuting Attorney NEO/COC Primary Contact Information: Rachel Hansen, PO Box 622, Shelton, WA 98584, 360-427-5599, rachel@nwevent.org 3 1 P a g e Diane Zoren From: Rachel Hansen <rachel@nwevent.org> Sent: Wednesday, October 30, 2019 12:19 PM To: Sharon Trask; Kevin Shutty; Randy Neatherlin Cc: Diane Zoren; Heidi Brotche McCutcheon Subject: Request for use of 414 W Franklin Street property for Holiday Events Attachments: 2019_Mason_County_Holiday_Events.pdf Good Afternoon, I am reaching out to request the use of your facilities at 414 W Franklin Street,Shelton WA(former Olsen's Furniture building and parking lot)from December 1-31,2019 to support holiday tourism efforts on behalf of the Christmastown, USA project.This project is a cooperative effort of Northwest Event Organizers (Explore Hood Canal)and the Shelton Mason County Chamber of Commerce. A little background: In early 2019 the City of Shelton reached out to me regarding the Explore Hood Canal tourism campaign through Mason County.The City expressed that they appreciated the website and narrative (social media, advertising, blogs, articles) as it offered a great deal of tourism value for the City of Shelton and that they would be interested in cooperative advertising and promotions in lieu of beginning their own campaign. Explore Hood Canal and Mason County were invited to attend City LTAC meetings to determine the best fit for a collaborative effort. In talking with stakeholders and measuring the evidential success of the 2018 tourism campaign through the Festival of the Fjord which prominently featured Shelton's Holiday Magic,the 32' historic Beauchamp Santa Claus, as well as the Christmastown nostalgia; it was determined that this unique historical background was a great springboard for some established tourism promotion. During the 2018 EHC holiday campaign (Nov-Jan) LTAC revenues in Shelton increased 45%over previous years. It was suggested that a request be submitted to the Shelton LTAC committee for partnering funding opportunities. In September, in partnership with the Shelton Mason County Chamber of Commerce, NEO submitted two proposals to the committee.The first was to find a suitable public location for permanent seasonal display of the 32'Santa Claus.The second proposal was for promotion of historic Christmastown, USA.The purpose of this project is to bring seasonal tourism interest and restore Shelton's historical Christmas Town identity through decoration as well as ongoing community events and activities throughout the season. Events were to include music, celebrations, bazaars,and activities to draw in visitors along the Olympic Peninsula and 1-5 corridor. The Scope of Work on the application outlined: Through holiday-centric events celebrating Shelton's rich and well documented timber town,partners will restore existing decorations with fresh tinsel and updated lighting,recreate historic(1962)Clarence Beauchamp designs that formerly adorned Shelton's main thoroughfares;create timber strong atmosphere with natural garlands and lighting. Events will include, but not be limited to,indoor/outdoor concerts including music and pageantry,community craft activities, light displays, and evening shopping nights with entertainment. Events and highlights will work around the currently scheduled holiday events in Shelton and throughout the County. Marketing efforts will be leveraged through a partnership with Mason County's Festival of the Fjord program initiated in 2018 with Shelton's historical Christmas town roots forming an anchor throughout the area. The Christmastown USA project will attract visitors traveling over 50 miles,outside of county,out of state, and international, as well as engage local community and holiday guests.With a events spanning through the holidays,the project will attract overnight as well as extended visitors.The goal is to generate mid-week occupancy as well as fill weekend holes throughout the County. Recently the City Commission approved both of these proposals. Plans have begun to rebuild existing Christmas decorations,garner sponsorships and partner on event schedule. 1 Mason County Commission Request: It was determined that an excellent project to kick start the campaign and escalate media attention would be for Mason County to hold the distinction of the Guinness World Record for"Most Illuminated Christmas Trees in One Location." The current record is 559 trees.We are optimally positioned, not only historically, but also with regards to resources to attempt this record. We have already rallied community support for tree donations. The vision is to create a 650 tree maze in a central location and host holiday events that will attract families to our communities. Our team created a detailed overview of Mason County events and propose to additional fill the void for holiday visitors and residents after December 7. Please see attached overview file. The record will be adjudicated following the Holiday Magic Christmas parade, at which time the lighted maze will be available for the public to enjoy. In addition it was proposed that that this project serve the needs of area small businesses that would benefit from a holiday shopfront open weeknights and weekends for holiday shopping as well as offer craft and entertainment events in conjunction with the maze. The building and parking lot at 414 W Franklin Street would fit these needs perfectly.We ask that the Mason County Commission consider leasing this property to the project for the month of December. If approval is granted to proceed we will reach out to the City to arrange necessary permits as soon as possible. We understand that this is exceedingly short notice and appreciate your consideration. We are aware that this is an irregular request and welcome any questions you may have and are happy to present in person. It would be fantastic if you were able to consider the request at your upcoming briefing. We are aware that there are other properties that may work for this project but none are so perfectly suited to its possible success. Thank you so much for your time and consideration (especially in reading this lengthy email). Warm regards, Rachel Rachel Hansen 360-427-5599 Image In Action I NWEvent.org z v MASON2019 COUNTYOF • NOVEMBER DECEMBER NOV1-2 NOV7 NOVI6 NOV22 NOV28 NOV 30-DEC 221 SATURDAYS 6 SUNDAYS O 1:0062:30 PM DEC 25 DEC 26 Squazin Museum Holiday Craft Holiday Gift Fair Fantasy Forest Thanksgiving Dinner Cocoa Holiday Cruises with Santa Claus Christmas Dinner Bluegrass Fblkley Bazoor Bomar 1090-4:00 PM Buskyss Luncheon .d;�. R,, tU;on <.,..-:c.c.: �.,.-. _ Concert 990-500 PM 10:00-390 PM A—att Cdr Club 1LOOAM 130 PM Cruiseaboord—LadyAlderaraoa yc:ht oe,yh—atone1.cwhea cna cacac wtn Stora I::O SE Kw�-Denys Ap ne Aby Cart 330 E Co-,Cub D-.U,'aa L':tb Croc,Cas nc A?w 5^c:a, 900A n,a CartsNkstsploe.s-e:on NOV 1-2 NOV 8NOV IB NOV 22 NOV 29 DEC 6-7 DEC 15 wa St Ed— 21st Annual Billing In the Season Fantasy Forest Tree Lighting Ceremony Tree Lighting NCCU'Baby Bomin Holiday Bomar Holiday Expo Holiday Shopping Barrels and Brews and Fireworks Holiday Magic Parade the 8— 990-3:OOPM 1000-39 9 0 PM 120-5.00PM 690 PM-ILO0 PM Begins at 4O0 PM Downtown Shelton 500-790PM E01 W C St 5-c:a, 5---11ar —yDaa Cavno L:Uc Cr-,Ca— A.r.,.a �Re:.-:�i�,,.S'..l.,r., Hurter Farms 3480 5E Lym-.Shelton 9330 N I N.v'0'.S,.—lin Wee SR 106 S e ori f 1921 E Hwy 106.Urwn NOV 2 MOV IS NOV 23 NOV 30-DK 1 DEC 7 DEC 1S Holldoyon Main Thorrtsoving Dimer Fantasy Forest Christmas Market Bouxor B Bake Sole Sing M4 Now of Steer Bomar 790-990 PMGala B Auction 11OOAM-7:OOPM 10:00'3:00 PM Chrlstmael DEC 21-22 990-2:OOPM New Co,muuty C"_, S:OOPM-IO:OOPM L.oe Cee,Cash-Basal �.nF ..R 5:00-6OOPM Caroling r,,11 L.,—.1 951 E Dobv P,UN, —C—Ccs'no 9:SF:OB.Shcltc, 420 SE SR 3.Shelton St Da,d or Wales 122 Connecta,.Sha:m Has:SR OB.Sawlton 324 W Cedar St Shgton Holiday Market 520 REGULAR 10:00 AM-S OO PM DEC 1 sneita, NOV 2 NOV IS MOV 17 BeifalrHoliday DEC7 S36SENIOR/MUTARV Senior Center Burlap to coshmere Holiday Art Class Parade NCCU Christmas 9--ma 9 Holiday Bomar 790-99DP4 290-330PM 3:00-6:00 PM B.- 10,00- omar30.00.3.90 PM Meso,Cant C.—As— Maole Gla,Sam,L'vns 300 musk,vee agm-y I0O0-3:00 PM DEC 19-20 -so WS. ".S-e an 3l3l Srotm Sa'^cs Rd ']00 N.'3N Lcoo Rt.Shellan a4Pm Scott WL--1 051EDabv�.lino, Caroling ShHto, Tun nos.poms',:o 3r: —,e.6elmr Holiday Market 400PM-9.00PM DEC 7 NOV 2 NOV IS NOV 23 Shopping With Santa TOPS Father-Dotghter PhotoswhPas us Soma Pas 129 9 0-50PM Hdklay Bonsor Night Out 3000 AM-21DOPM Malian Cant Tmrss.: Ili IDOPM 530 PM 990 PM lits:[rttc+rwns Haran:r� Center,Shelton DEC 12-13 Be rc Comm.Cvch S^e:m Crv,Cexc NE SR 300.80fc Tree Maze 233005[R-c 3,8a tar 523 Vast C—,St 5-e a. Lighted Historic Downtown? Holiday Market NOV 2 400 PM-900 PM Chowder Cook OM DEC 7 4:00-7:00 PM Guiness Tree RKord Shottm MP^na Celebration EventPM Tasting Qrd :0 $10 40 PM-9:00 PM DEC 14-15 4s'an Pvcdeos v'nC ShHtm Tree Sale ncr ay she«tr sa�: Holiday Market DEC1 10:00 AM-SOO PM Beauchamp Santa Caus DEC 8 S—tm Last w=of November Tree Maze O.rxa Pork Hwy 1Q SMttoSanta Photos Holiday Market 1000 AM-5O0 PM S,-a, Attachment A MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Ross McDowell Action Agenda _X_ Public Hearing Other DEPARTMENT: Parks &Trails Division EXT: 806 COMMISSION MEETING DATE: 11-12-2019 Agenda Item # 8 �� Commissioner staff to complete) BRIEFING DATE: 11-04-2019 BRIEFING PRESENTED BY: Ross McDowell [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Renewal of MOU with Mason County Historical Society and Mason County on behalf of the Parks and Trails Division BACKGROUND: In November of 2014, the Mason County Historical Society (MCHS) entered into a MOU with Mason County Board of County Commissioners on behalf of Mason County Parks and Trails Division reference storage space at MCRA. MCHS placed a 40-foot cargo container with historic artifacts and other items on MCRA property for long-term storage. The MOU has since expired in December of 2017, so a new MOU was drafted. The director for the MCHS, Liz Arbaugh, has reviewed this new MOU, which mirrors the expired one. Tim Whitehead from the Mason County Prosecuting Attorney's Office reviewed and approved the new MOU for contents and form. BUDGET IMPACTS: None RECOMMENDED ACTION: Recommend that the Chairperson for the Mason County BOCC sign the MOU between MCHS and Mason County. ATTACHMENT(S): Copy of the new MOU between MCHS and Mason County H:\FORMS\BOCC Forms\Commission Agenda Item Summary Template_l.doc MEMORANDUM OF UNDERSTANDING Between Mason County Historical Society and Mason County 1.1 PARTIES This agreement is entered into between Mason County Historical Society(MCHS) and Mason County (COUNM, which directs the Parks &Trails (MCPT) to facilitate this agreement. 1.2 PURPOSE AND USE MrPARTIES agree that the purpose of this agreement is to facilitate a cooperative relationship for Mason County to provide MCHS space at Mason County Recreation Area(MCRA)Park to store a cargo container.Mason County hereby finds that the Historical Society,through its work,improves the quality of life of County Residents and therefore provides valued consideration. 1.3 DESCRIPTION OF PROJECT The PARTIES agreed that the project objectives to work together to provide MCHS storage space for historic artifacts or other needs. 1.4 TERM The term ofthis agreement shall be from November 1,2019 to December 31,2022 and can be extended with the written consent of both PARTIES. Either PARTY may terminate this agreement in writing forty-five(45)days prior to the proposed termination date. 1.5 RESPONSIBILITIES OF THE COUNTY The County will provide and support all of the following: • Provide space at the maintenance compound of MCRA Paris for up to a 40'cargo container that will house historical artifacts. • Provide the MCHS with access to the cargo unit from 7 a.m.to 3 pm.Monday- Friday and on weekends when staff are present. • Will report any problems with the cargo unit to MCHS. • Will provide power service to the cargo unit if needed. 1.6 RESPONSIBILITIES OF MCHS WES will provide and add support all of following: • Will provide'COUNTY with a point of contact for MCHS. • Will provide COUNTY one set ofkeys in ease of a need arises to anter the cargo container. • Will pay an annual fee of$10 per month/$120 per year for basic power service,if needed. If heating and cooling on an annual basis is required,the charge for power will be negotiated on the increase in monthly electric charges,within reason and consideration for the time of year. • MCHS will indemnify and hold harmless MCPT for any damage or losses to the cargo container and its contents, • MCHS will cover the costs of moving in the storage unit and removing the unit once the term has been completed. • MCHS will be responsible for all maintenance and care of the storage unit. 1.7 INSURANCE MCHS will provide Mason County with evidence of Commercial General Liability Insurance with limits of liability not less than$1,000,000 per occurrence and$2,000,000 annual aggregate,for bodily injury,including personal injury or death,products liability and property damage of cargo container and its contents.If the coverage is written as a claim made policy,then upon termination of contract MCHS must evidence the purchase of an extended reporting period or"tail"coverage for a one-year period. The Commercial General Liability Insurance shall name MCPT,its officers,officials, employees and agents with respect to performance of services and shall contain no special limitations in the scope of protection afforded to the MCPT as an additional insured. MCHS Commercial General Liability Insurance shall be primary and non-contributory with respect to any insurance or self-insurance programs covering MCPT, its officers, officials, employees and agents. Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the MCPT,its officers,officials, employees and agents. The insurance limits mandated for any insurance coverage provided by this Contract are not intended to be an indication of exposure nor are they limitations on indemnification. The MCHS shall maintain all required policies in force from the time services commence until services are completed.Certificates,policies,and endorsements expiring before completion of Contract shall be promptly replaced. The MCHS shall place insurance with insurers licensed to do business in the State of Washington and having A.M.Best Company ratings of no less than A.The MCHS shall furnish Mason County Risk Management with properly executed certificates of insurance or a signed policy endorsement,which shall clearly evidence all insurance required in this section prior to'commencement of services.Certificates of Insurance shall show the Certificate Holder as Mason County.Written notice of cancellation or change shall be mailed to Mason County Risk Management 411 N 5" Street,Shelton,WA 98584. 1.8 TERMINATION This agreement may be terminated by either party upon the giving of forty-five(45)days written notice. 1.9 EFFECTIVE DATE This agreement shall be in full force and effect upon approval by the County official signing below on behalf of the Mason County Board of Commissioners. Dated this day of 92019 MASON COUNTY,PARKS &TRAILS Chairperson, Mason County Commissioners MASON COUNTY HISTORICAL SOCIETY President of the Board MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Frank Pinter Action Agenda Public Hearing X Other DEPARTMENT: Support Services EXT: _530 COMMISSION MEETING DATE:11/12/2019, Agenda Item # /0, 10/08/2019 (Commissioner staff to complete) BRIEFING DATE: 09/30/2019 BRIEFING PRESENTED BY: Frank Pinter [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Public hearing to consider the sale of parcel: 32127-53-00174, located on E. Mason Lake Rd., Shelton in the amount of $4,000. BACKGROUND: This parcel was considered surplus to the needs of Mason County via resolution 33-10 on May 4, 2010. 2019 Assessed Value: $4,275 Current offer: $4,000 As of November 6, 2019 there are no back taxes owed. RECOMMENDED ACTION: Approval to sell parcel 32127-53-00174 in the amount of $4,000 to Patty Hinton. ATTACHMENTS: Modification of Closing Date Purchase and sale agreement Resolution 33-10 Map Draft sale resolution IAProperty Mng\Property Offers&Negotiations\32127-53-00174-2680 E Mason Lake Rd\hearing cover.doc 10/19/2019 23:51 6503287518 FEDEX OFFICE PAGE 02/02 1Q/97/3Q19 GvN 9:47 PAR 1,60 426 8230 Chalton Land and [iomen �IQQZ/942 Aothandaran lo:7i!•eE7poABBF.110C e�Aa�127P26pObAFe Form 22Y }'' �' !L •+' +ACopyrlrhl2I717 Modtrleatlon of Closing Onto f;' Narthwaet MUltip a Waft SOMce Rev.2/17 f;t'- t ALL RIGHTS RESERVED Papa 1 of 1 MODIFICATION OF CLOSING DATE ADDENDUM The follovAng Is part of the purchase and Sale Agreement dated September A 2019 between Pau,!L.ItIntod („buyer”) 2 and Mason County 3 aannr eiikn concerning 2680 R Mason Lake Road Shelton WA 98584 (the"Property, 4 A&b" _ cur own aP 1. MODIFICATION OF CLOSING DATE, The [•sanies hereby agree to modify the Closing Date set forth In the G^ Agreement to: On or before]V16/19 : o Z. OTHER DATES.In addltion,the padles hereby agree to modify other dates set forth In the Agmarnan- as follows, 7 a B 1D 11 72 13 14 15 1e 3. OTHER. 17 18 1p 20 21 7.3 24 25 28 27 28 30 31 32 33 34 35 38 37 38 39 All other terms and conditions of the Agreement remAin unchanged. 40 �P4 ~ � 10/;?t3r1019 Ptl 13U s Initlale Date Buyers initial o pate Salw s tnifiela Date Sellers Initlels Date i 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 03/14 0911015t019 PRI IS.,22 FAX 360 426 8Z30 6relton Lana ena nomas Wa��- •-� i Form 25 ®CopytlphtZQ1$ Vacant Land Purchd+n A Gale Northwest MWW6 Llsft Soryloo Rev.7/10 VACANT LANA PURCHAN AND SALE AGREEMENT All.Riei-l%REMRV*r;p Paas+1 of 5 SPECIFIC TERMS 1. Datst Septgnber 23,2019 MLS No,: 1.109945 offor Expiration Dane:09WA019 Z Buyer. rattyL.Hinton An unmarrlarl person Uurer euyar 3. Bolter: ARsson Connfy 9/par saher 4. Property:Logo(Descrooll Attached as Exhibit A, Tax Fmcei NO(A).:3112753001'x4 3680 E Mason LRke Rd Shelton Mason WA 98..584 MUM@ ._ tr cr:unh S. Pureheee Nice;$ 4,000.00 Four thousand---------M — Dollsre 8, Earnest Money;s 500.00 ❑Cheol; 0 Nota;Q Omer (held by D Selling Firm;tlzj Clnaing Agent) 7. Default:(check only one)❑Forfolture of Eameat Money;13 Seller's Election of Remedles 8. Trlla Insurance CorMpany: Mnson_CounJy'ntle 9. Closing Agent: Mason County Tills Donna Dotson _ CgWpury lown l(opeornq 10. Closing Date: 10/25/2019 Pocoeselon Date:0 on Closing;O Other 11. Services of Closing Agent for Payrnont of UtIllUops.,❑Requeated(attach NWMI.S Form 22K);la Waived 12. Chergeoa/Asnessmente Levied Were but Duce After closing:0 assumed by Buyer;la prepaid In full by Seller At Ctoeing 13. Wier Citlzen9hip(FIRPTA): 8ollor 0 la;W1 Is not n foreign person for purposes of U.S.incorm taxation 14. 1100visiom The Property:O must be subdivided Wor ;ld in not required to be subdivided 16. Fnaslbillty Condnponcy Explretion Data;0 !0 tlaya after mutual acceptanoo:❑Other 18, Agency Disclosure: Setting Droksrrepresenta 8S Guyer; ❑Salter,0 both parlles;❑neither party Elating Smker represonts B16vllar; ❑both parties 17. Addondar 221)(Optlonal Clauses) 31(1Lornest Money N01035F(Feasibility) a _ Auynrn s r118 bale BCWR 9lonaiuro Dale Bey91'e SON*" Dale sorter's Signeturo Dalo 400 Milgarlts Ave. ---- Buyarn AtlCmee Tellers Addrexe Monitor CA 94306 Slicilan,WA My,sista,zip City.Sala,71P (360)974.3774 (360)417-9670 PhoaA No., rax No. Phone No. Fax No, bdlAsa1a13 mali.Cons 9uyar's G.mery Aadroea Sews E-mall Address Shelton Land&Homes,LLC 9822 Richard Deckmas Realty Group 4.537 3allno Mrm MLS Oltice No. URdhq Firm MLS Omae No. JoAnn E.outdo" 25926 Ricbard Becktneis 85681 Selling Broker(Print) ML.'LAG No. I.kting Broker(Rlnq MLe LAG No, (30)A764515 (360)589.9694 (;460)426-WO (360)426.5531 (540)790-1925 (360)426-1645 Finer Phone No, Broker Phi"No Firn FM No. Fkm Phone No, Broker Phone No, Flrm Ftot No. jbor7GerE(b)attnet mall(�jRtehardBecicman.0om Wing frn:1 Doom rtlt E-Fiali Address usung Firm Document k-mall Addtea■ jedleg;(AlcomCAAt,not richstdarkhardheckmnn.cdm oellhg Broker's Email Address Lladnii Broker's E-MeA AddrAPA 50168 99647 99421 9628 3eding erokor 00L Lftmnse No, Sallino Fim+001,IJcanre No, Llrt:ng Broker 001,Umia No, arina Firm 00L Llaonae No, 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 04/14 i 09/70/7.019 FRI 161 22 FAX 360 420 7ZOU pnelton Larlu nuu nut— Foim 25 acopyright 7019 vseonl Land Purrtwxrl&Sala Nnrihwoet Multiple I.latin"amvtce Rev.7110 VACANT LAND PURCHASE AND SAH AGREEMENT ALL RIQaHT9 RE&ERVM, Pape 2 of 5 GENERAL TERMS Conflnued a, Purchane price.Buyer anal pay to Seller lite Purchase Price,including the Earnest Money,In cath atClosing,unless 1 oiharwica specifled In this Agreemen#,Buyer represents that auyar has suffrclentfunds to close##tie sate In amordance 2 With 1t'Nb Agreement and Is not relying an any contingent source of funds,Including funds from inane,the Isale'of other 3 pm ail' glft9, rellrement, or future eamings,except to the extant otherwise specified In this Agreement The partici 4 shall IteB cautlon when wiring funds to_awald pat aMlal wire fraud.Refore wiling fundo,the party wiring trim shall fake, 5 steps Wc'Oonfl m any wire Instructions vial An lndrip&>Iaently verified phone number and othorappMprlate mexaures. 8 h. Earnest Money. Buyer shell dohvar the Eatridat cony within 2 day"+attar mutual eMeptano3 to Selling Broker or to 7 Closing Agent.if Buyer deitvera the Eamais W16y.tasolifng Brekar Setting erci of wr7l deposit Any check to be held by 8 Selling Ftrm,or deliver nny Eametat Motrey fo[�held by Closing Agent,within 9 days of receipt or mutual acseptartCp,: 9 whto i"t occurs later.If the Earnest Money is held by Selling Firm and is over S10,000.90 It shall be deposited into an 10 htto>get beating trust account in Selling FiWs name provided shat euyer complaW an IRS Form W-9.Interest,If any;, 11 atter dedoden of bank chargee ona4es,vitiate paid to ouyer. Buyer nhA8:re f&ursa Selling Firm for bank chargee 12 t and face in excess of the interest named,If any: If the Eameat Money held by'SeNing Firm la over$10,000.00 04th 13 has the option to*e Ito salting Firm to dopo4n the Earliest Money into Ma Housing Trost:Fund Account,with the: 44 [niertrrr#paid to the StAfo Treasurer,it both SeIIHr and tYpr so agme inwriiting. Kthe BctyerdoAs not compl�le on.IRS 1s Fear W-fl before sollntg Fkrt1 most deposit the Eamest Moray or the Enmest'Mwley to$10,000:oo or less,the lamest 16 Mnney aitch be deposited into the Houctrtg?rust Fund Account,sailing Firm may franefer the Earnest.Money tis Ctosing 17 Agent at Closing.If all or part of the Eari+ost Money la to be refunded to Buyer and anyaueh coats rornain unpaid,the 18 Setting Firm or Closing Agent may deduct and pay them therefrom.Tbo partliet IrtslructClooing Agent to provide written 18 verification of receipt of the er,mest Money and notice of dishonor of any e1h r to 818 parties and Brokers at the 20 addrpssea and/or fax numbers provided herein. 21 Upon termination of this Agreement,s party of the Closing Agent may detlyera form allthartaing the.release of Famed 22 Money to ilio other parry or the psRlo3.The pariy(s}shah axBcdte such form and depver the some to.die Cioslnp Agent, 23 If oithor party falls to execute the release a party may make a written demand to the Closing Agent for the Earnest 24 Money.Pursuant to for. 64.04;Closing Agent shah dQtiver notict of Bic demand to Ilia other pertyr within 15 days.If 25 the other party deet;not object to the demand within 20 days of Cloaing Agent's notice,Closing Agent shgli disbur9@ 4te 29 EarneCt Money to the party Making ttte&fnehtf within 10 days or the expiroWn of the 20 day period,if Clonlrtd A66d 27 timely racolvaa onr objecllon or ao lnaonatelvni domand from the other tsatiy,:Cloatng Agent shall COMMOMe an 2e Interpleader action within 60 flays of such t+bluctlon or inconsistaht demand;unfeas the partlos provldv subsequettl 29 consistent instructions to Closing Agent to dictrurse the earnest money or refrain from commencing an intirrplaedtir 30 action for specified period of time. Purruant to RoW4.2e.080, the Part'"rmntmnt to cervico of the summons:ani► 31 complaint tar am Irderpleader action by first oines mall, postage prepaid At the party'a uauat malting addrags or lha $2 addnsas identified in this Agrment, it the Clesinp Agent complies with uta prrcedtng process, each party;nnofl LTe 33 dattrrod tit#lave released Closing A901 front any and All claims or liability related lv the disbursal of the Earnest 34 Money.-t?either parifalls to authorize the relonse of the Earnest Money to the other party when required to do do 35 und@rtillt�Agreemont that party shall be in breech of this Agreement.-F'or the purpaaea of this bection.Ina term Closing 36 ,Agent hrdudes a 9$IitiFg Flrrtl holding the Eerttgat AAanrSy.The porllos euthgtl;e the paKy corn an cing an Interpleader 37 ashen"hi deduct up to 800,00 for the costa thereof; 38 r: CondIL160 of Title.Unless otherwise specified in Ihja.Agfdement,rifle to this Property shell be marketable at Closing. 30 The.following shell hot cause the title to be unmerketeblc:right,, resorvations,covenants,conditions and restrictions, 40 preeenDy of reooril and general to the area,agnlNll2nia rand oncronchmenti,not maWplfy PflActlntg the vaiila pr Or 41 unduly Interfering with Buyer's masonshle urte of r the Property;and reserved 011 Aodfor mining rlghis.Seiler Rhall not 42 rxtnvey.or reserve.any oil andlor minaret r ghtt ahr rhutuel acceptance without»oyer'; omiton consent, Monalinty 43 encumbroncas or liana Trot assumed by Buyer,shall be paid or discharged by Seller on or befl3re Closing.Title shah be 44 eonvayad by a Statutory , (rarity Deed. it this Agreement Is for conveyenoa of a er's interest Ina Real Fatale 45 Contract,the 5tatutrsCy:- rranty Deed shalt Include to buyer's assignment df the contract sufficient to convey Oft 40 erquked fi80.If tho Propertar lyes been stioft plaited,the Short Piet number is In the Legal Descrtptton, 47 d, TIB**tnauranco, Selfor`riAartibe Buyers lender or Closing Aggnt, at Scileeo expenne,to apply for the Then-otic'e 48 ALTA form of standard rorni rn+rrte 11 portey of title Insurance from the Title Insurance Company. if Selrer pprevlou.*- 49 received a preliminary commttmbnt from a Title Insurance Company that Buyer derdlnes to use. Buyer ohall pay art 50 canceNA#Ian tees oxvtng to the orlg&lltl Title Insurance Compal..Otherwise;this party applying for fide Insurance anal[ 51 gey.any title cancellation fee,in the event Such a fee is assessed,The Thio inaucanca Company shall send a copy of 52 t3re8minary commitment to sailer,ucting Broker,Buyer and Selling Eroker The preliminary commitment, and the 53 He policy to be Issued,&hall contalh no oKceptiono_gthar then the Genesi Eatolttslona and Exceptions in sold standard 54 fofRE;arld 5pes121 Excepttanc cor{Gloto(tit w811 t#1d,Conditiott of Title herein provided. If title oannot be mode ao insurable 5s prtorlo the closing Data,then aIs Buyees sole and exdtnfve remedy,the armzit Motley LhaB uMesa Buyer elect$to 56 welve such defeeta.or encumbranm,be rd andad to.the Buyer,less any unpald costs descrlbed,In thio Agreement,end 57 Agrecmont oftl thereupon be"tti.0riated: i9ttyeF shal+ have no right to spatdifo POrforrtll13hcC or damages as a Be .1hh, consequ once.of Seller's ktabiUty to ptovldatnauratble;dtle se Buyer's Initials Dal E,rynr' kwks DBEs 8atler'f WNS Date Sallers Infliais Dale 09/14/2919 22:35 6583287518 FEDEX OFFICE PAGE 05/14 a9/z0/7010 VRX Id:23 FNt 340 4$6 Cd3V paexnOa LILaa Rau ovv= •"' a - Form 23 aDCopyrfOfN ftof0 Vecont tend 15m meso d Sole VACANT LAND PURCNAGE AND SALE AGREEMENT r balAwalat CIRImIT�lRPSF rt sonrioe Ray.1/11 ALL RICIi'I8 ItESERVEt} pulp s or s GENERAL TERMS oon0nued e. Ck Wn4 avid possoeelarl,Thin Gain shell be ctood py the Clotting Agent an the Closing Data.'CbAing"means thn do d :tilttxhkh ail docunlettM are recorded and the safe procstW3 nrV ev 1013le to Sailor;If.the Closing Date falls nn 61 SafurdaY,Sunday, legal hWldoy eS defined in RG1N 1,16,p60, or day when the county facerding offca to cloia4l Closing Ahe 62 gent shall dose 1119 frame WOIN;on.1he next day that is not a Saturday,Sunday,legal Holiday,or day when 63 county rncording office i9 dosed:i3uyer shall be entitled to possession of s:00 p.m.on the possession Date.SeAWiiaill 94 tn"In dvo Prop6iiy IR tb present congAlon,normal vtear and tear e ,t>rlfg the Buyer is provided possesmtoA, 66 Buyer roserve8 the r ght to veli tlttaugh the Propo WMMr15 days of C ♦ng ItA umrlfy that Seller hes naelntetned the 66 Property no required by this paragraph.Setter tint!enter Into or modify d7rtafing learns or rar►tla}I nAreemanta; 61 service oontioots,or othor o9greemangf mAl is effecting the Properly which have tarms extending beyond Clohou4Yiritt e5 obfhlctfnp Buyer's corisdttt,.i.hlLt shall nci bs unreasonably withheld, 89 f. Seddon 1031 Likt}-1 nd hange. If either Buyer or Soler Intends for 1h18 transaction to be a part of a Section 1031 70 like-kind ezchsnge, theft that other party nball onaparata in the'aomplotion of that 106s;kInd.exchanga co lom,is;thea 71 cooporating.party tneure mo additional Ilobluty in doing ec,end so lung 9e any eltpertaee'.�cluding attorneys' and 72 casts)Incurred by the moperoting parly thirt ore roloted only to the exchanp are il$W or reimbursed to#1e caypehatlgg 73 party;of or prior to Closing. NOWtthstanding Mo Assignment paragtoph of thus AgroOrwrtt, Ahy party,cdmpldtt��a 74 section 1031 tike kind exchange may aselgn this Agreementqu to Its allfled thtermedlary,oratty entity set qp tor'l. 75 purpottes of eomploiing a reverse exchange 76 g, Closing GaAm and Prorations Fnd ChIrges and Assoecmonts.Seller and Buys(t haft each pay one.hl;ait of the 77 astraw roe unless otherwise required by._appllcable fl df or VA regulations,Twfbd for;ltd t;urrent year,rant, Into re at, 78 2hd lienable hemeoriners accocletlon dues shall be prarnted as of Closing. 13Uyet shah pay Buys a loan cos* 74 fnc{udinr��g rxedk report,appraisal charge and lender's rifle insuramoo,unless pr6vlded otharMao In this Agreement,if any 8Q pfayments era dvlingtiont on eticumbranccs which will remain after clowng,Closing Agent is lnatrueted to pay such 01 delinquencies;9t Closing from money due;or to be paid by,Seller,Buyer shall pay for remaining fuel in the fuel tank It, btu prior to IUD.Ong,Seller obtains a written ctatem3ni from the suppllpr no to the quantity and current price and provides 83 9uch.statement to the Closing Agent. Seller aha8 pdy all utility charges, lr udlog unblhed charges. Unlcos valved In 84 Specllic;7arrrl No.11, Seller bile Buyer,rsquldel q1c ssrutCen at Glasing Agertl>ki dtstx7 ng fundr.Access to 9afl0y 65 Unpaid runty rticrge5 In afxofdgnco with RCW 60,80 and Sailer shoo provide,,tha(tames and addresses all ufllith3a 86 providing Ke.Mco to the.'Prmt�erty Md,havinp lien right€ (effech NWMLS F..0 ,22K Identlficatlon of Utilities or lir equitrslcnt}. ,.. Buyer-lo advited to verify the existence and amount of any local improvernent district,capacity or IitlpACt Chargea or 89 othatirasoessmants that may be charged against the Property before or after Closing.Seller will pay Wch charges that 90 are or become due an or betoro Cloeing.Charges leviod before Ctocing,but becoming due after Closing shall pa paid 91 aG agreed In Specific Term NoA2, 92 h, -Rete information. Lteting Broker Said Selling Broker are authorized to report thin Agreement(Including pry turd a 83 terms)to the Multiple Listing Servlce that publlshed:it and to Its members,ondncing Insttutiorta,Appral-ters,And anyone 94 9188 rata to this sale,pyym.and Seller expressly authorize all Closing Agents,appralsgrs,titin Ineurancs Companies, 95 and othe;G related to thls Sale,to fumion the Usling Broker and/or Salling Broker,on request,any and all informatlan 98 and:mptee of document6 aortcemIng 1h1s sale, 07. I. Setter Cltizenehip and FIRPTA.Senor warrantn that the Idontlficotlon of Salter's citizenship euatus for purposes,.of U.S, 98 Mcoma taxation in Spoelffe Term W.13 Is carredt,Solley 6113111 execute a certification(NWIUIL3 Fonn 22E or eowlalano 90 under.the Forotgh investment In Real Property Tax Act("FIRP.TA')at Closing and provide the certification to the Closing 1.00 Agent.It Seller.ls a foreign pbrsan for purposos of U.S. Inf:rmme tantion and this transaction Is not otherwise exempt-fat from FIPP'tA,Closing.Agent fsipa3tructed to withhokf end pay the require> amount tv th,5 Internal Beyenue Sarvica, 10 1, Notic". and Delivory of Document& Any natica stated to this Agreement (including revvcitionik of offers of 10 count6fr ffirh)mutlt DO In writing,NoOces to 5enZr rust be signed by at least one Ruyer end:shalt be deemed delivered 104 only when the notice Is.received by Seller,by Ufttin4 Broker,or st the licensed office of Meting Broker.Nolket to Suyst 105 must be slgnod by 8..least one Seller and Thai) be doomed delivered only when the notice in mcotvod 15Y swat,;by 1i18 baling�rCker,or at fits Rcansed office of SeUtny Broker, Documents ments related to thl4 Agreement, such as NWMLS Foram W' 1:70,tnforruatlon_dn Load-based,Point Lead-Baoea7 PalntHazards,Public Offering Statement or RMIG CoMOCater, 146 and all refer docurrle nts Rhall bo delivered pursuant to thla paragraph. Buyer and Seller mutat keep 5 Hing Brokarand 700 Listing Broker adv�d of their whereabouts In order to receive prompt nettflcotion of reeelpt of..a eotke, 110 Facalthas trarial t ilon of shy notice or dacurnetd.ahn11 constitute deitvery, E-bilslt ttanemtselon of Any nnttne,4r 111 db&irgcnt(Ws i3reet link to such natka or docum*)ohall constitute dellvary when(0 the e-mail fs euM to both sailing 112 Braker acid Sol hg Firm or both t,lsftng Brnkor$nd l.ls*q Firm at that e-mail addresses specified ort pace ono of this 113 AgroWhisht or(IllSelling Broker or Listing 600*providr vattten backnowiedglnent,of receipt of the 24611(en sutornslic 114 e-rnaif reply doss not constitute wfltten'4oltnowtedgment).At the request of oithet'party, or the Closing Agan, the 115 rOas will confirm facsimile orpe-rniill lranumitletlatgnatures by slgntng an adoinaftlocument. 118 uvor'a initials Mtn Buyar'a inlllala Data Senor's Inlools Data Sellcra Inlllola Date i 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 06/14 J9J3q/3019 Fzss 16 �3 Rnx 360 426 8230 Shelton Lana dna Demob i - i - 1 �.'Copyrlphl2Ai9 Form 25 Nolhwost 4.49,3ft Lj61lr4 SnrAC0 l/arant Lnnd PUM"Ah S SWO VACANT LAND PURCHASE AMD SALE AMRSEMEW ALL RIGHTS RESERVED Rrv.7110 D GENERAL.TERMS Napo i4 of Contlnir+id k computation ot'i'Imik,Urban otherwise-apedfied In this Agraemant,eny Period of tkld measured In days and silted 417 p.m.of the 116 to thls A»gfnant shall start on the day following the event commenaIng the periop and.shall expire at 9;00 iatst catender:day of the xmbctlled period of time.E�ccept for the Pptreaaslon Gala,a the test day is a Saturday,Sunday 119 or 16061 holday as defined In RCW 1.16. ,il)P spccltied pettad of time shaft on the next day that Is note 120 Saturday,Sunday or legal holiday,Any,specified period of s days or less, Axcop dtty limo period reiating to the 121 Pbasesion Data,shall not Include Saturdays,Sundays or legal holiday$.Kills partW agnea that an overtt will occtn'00 a 172 specify calendar date,the event shallatxur ari that date,except for the Closing Data,which.it it falls en a S tWly, 123 Sunday,to us defined In RCW 1.18.050,or day when the county reaordding once is closed,shall accUrsit the 124 next dny Rik( not n Saturday,Sunday,legal holiday,or day when the county rscoMing office la dosed.If the prallon 125 60fee upon and rstiach a legal doycription aftar[We Agreement la aigtied by the otferee and delivered to the 00000,1116A 126 for Vie purpaRea 0 cam uUng time,nmivAl ticceptience shalt be deemed la be on the..date of delivery Ct an BQl:e And'127 l offeror ct>Untorattsrta.: a offeror.rathat tftArt wl the dile the(apai.destxlpticn ie attached.Time I$..at the eaaernca df'12'4 29 this Agreement. I. IntegroMon and Eloatronia Slgnaturgri.This Agreement constitutes the entire UndecefAr4rlg betWien tho.partles:and 130 supersedes AA prior or contemporaneouri understandings and representations.No modification of this A greamant shall.131 bo offiective unless apreud In writing and signed by Buyer and Seiler.The paittes acknowivdoa that a aignatury-in 137 01aCbgni4four!has the came tegat effR0 4nd VOdlly S&A handwritten signntura. 133 m, AtalarunenA Buyer may not asctgn thfe Agrnerrient,or euyRe:rights hoteui3der,without Sonar's prior written writont, 134 unter,:the pattlea indicate that aoalgntnerst Is oermKtcd by the addition of"andler assigns"on the line Identltyi.nq the 135 errycr on the frit page.ofthis Agreement n. Getault. In the event Buyer fulls,without!eget excuse, to complete the purchase of the Property,then tho followtnp 137 pt65 tsion,as Identified In Specific Term 14b.7,shall apply: r. Forfeiture of Earnest Money. That,portion of the Earnest Money that doe¬ exceed five percent(5%)of the 139 Purchase Price shell be forfelted to the Seller as the note and exclusive~remedy evailsble to Sellar for such follure. 1A0 it. Seliaes Eloctlon of Ramodteo.Seller me?/,at 861for's:option,(a)keep the Eamect Money atrNquidaiad datna ea 141 98 the A4io and axciuxiva romody ovsitahtn:16:Sofler for such fntiute,(b)brinq mil(against BUYe+far Woes-,a�uei 142 damages, (c)bring sulk to 8pocltleolly anfoM.thta Agreement And recover any Incidental damages,or(d)pUrSUe 143 arty other rights or remedies oVaitsbla at IawbregiEity. 144 o, Ptofaselorrnl Advice and Attorrteys'Feas. Ruyer and Sellar are edvismd to seek the eounaol of an atfornoy°and 8 14 cera illeEi public xcco(Want to ravtew lis4 terms of this Agreement.i3uyet and Seller shall pay their own fees incurred for 146 such review,However, if suyor&SEller:inytitutan NO againsT tho etner concerning INC Agreement yr if the party 117 holding the Earnest Money CCmiM9riCag sn interpleader action,the prevailing pariy 10 entitled to reasnnnble attorneys' 1149 feer<`errd expanses, p Offer his etas!fnt t t be accepted by 006 p.m.on the OtfaT Explrattoll late,urtlezZ 000ner withdrawn.Acceptance 1511 }Dol pp,t fecfl+re on p signed copy is rccoi d by the-other pisrty,6y ttte atter lintty'A I�roker,brat the ocensed 151 attltra of Ute other party's a offot le broker pursuant to Genefol Termj. If It* .nqt lra accepted, N shall lapis and any 1162 153 Wiest Money shall be refundod to$uyer. q. CoUIhiieraftor.Any change.In the terms presented in an offer or coun.walfer,aUtar than the Insertion of or change to 154 Sooget inl;mc An Seller's warranty of dtlzenshlp status, shall be consid0id a counteroffer: if a party mekc9 d 'Iv cot}ntoroffdf,:`111eR the.other party shall have until.8:00 p.m. on the countarofter expiration date to accept tntll 159 c ounteroffet,t]nless Ra0per withdmwnk AccePlance Shall not bd effective until a slgrtied copy Is received by M.either 167 party, the.other patly?s broker,or at the Irenseed office of the other party's broker pursuant to General Term 1,Ir the Im rpoluwroft t Is.ttotacmntsepted,It Stns!#fapars:�ld My Eameal Money shots be refunded to ewer. 150 r. odor olid. Count.mWor Expiratlort DutiL ii no expiration date Is spedfled for an oAertcounferoffor, the iso 4MM offorlcounteroffer I oxplre 2 days'affe.r ihri`Mler/counteroffer Is delivered by the party making the offorltmolf3tofter, 161 unless sooner withdrawn. 162 a. Agency Dleclosure, Soiling Firm, Selling Firm's aosidnaled,$coker, Suing;broker's Brarlcit Manager(i1 any)and 163 Selling Prokors Managing Brokor Of any)represent The sgrnofiatip that t3s1ling Stoker rept�segtiit svrig Firm,Listing 164 Firm's Designated Broker, Luting Broker's Branch MAnAger (M any), and LI� Brokers Managhm Broker or any)185 represent the same party mat the Llstling Broker represents.If Selling Broklsr ilst►ng Broker are dlBerent persona 186 affiliated with the some Firm,than Doth Buyer and:Saller confirm their consent to Dedignated Broker,8ran6h Manager 161 (if dny),,and Managing Broker(llany)representing hoof parties as dual agents.tf Selling Broker and LLgfing Broker are 168 tths pgtpdars pon ropredenting both parties then Miff+Ffuyer and Seller nonfirrtii.:therr sogeerrr to that person end Ill slher 180 t�e*1.oAAt8d firoker,Oranch Manager(If any),and WriDging Broker(If an)captaBsniirlg bkih parties as dual agents.A11.170 partles.Acitriowledga-recelpiot'1he pamlitetentitied'The Law of FtenJ to Ag9nCy. 171 BuyDr"a 10081e Delo Buyor'a Inllrele Delo 1,011er'4 lnflfpin Date S�hih K 1011M DAie 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 07/14 op/2q/aoi� rxz t6raa max iso a28 span Ehnli:on Land ane Homeo KJuUO'vF� 1 Form 25 WCQpyfi4lnt 2419' Veoant Land Wurchane R Salo VACANT LAND PURCHASE AND SALE AGREEMENT No ALL RIGNTS IESERiallm SernicA Rev.7/10 ALL RIOhtTS t�BERVED Popo 5 of s GENERAL TI~RW conrinuad t, commi"lon.seller and 6uyor Shall pay a onntmi9aton In Accordance with any.listing or cotmnlaslott agreenlertt{�r i72 which they are a party.Tho t_isting Firma commisslon shall bo oppotfkmad'eeta!ean Listing Flnn and so Ing Firm as i7 speclfled in the hating.Sellff and Buyer heroby consent to Ltating rlrm or Se16ii fft r40SMN.6611117$nsatlan itttltt 174 more than one party,-Senor And Buyer hereby atWgn to lasting Firm and Selling.Firm,as appttga fe,a portion o1 their 75 ftmdr In asoma aqui to such comrijaaion(a)and IrTevocably instruct tho Nosing Agent to d(Ouree ilie commicston(t) 17d dim0y to the HrmWl 144*aGlton3:fsttngg of Gelling Firm to enforce this ponograph;the prevailing party is entilled to 177 court coatis and rewneblA aif>ameys,frtea.6eber tend Htryer dRree that the Fitms aro Intended th"party beneficll ORS 170 underihle Agreement; 1i8 u. Fedpihitity antlnat#ncY�tt.ic.:111t3$uy8tte.:;aspo(Ntibtllty o vt3nty lsefttre the F6asibiBty Cortilngency )=xplratton bate iBU Itl!ltttl[Itsd M S;i6.oI Ta pl NoJS whether Onol the Properly can tae platted,developed and/or built on(now or Int tog 181 future)and want itwit ti%it to do this,8'I"r should not rely on arry'orid statements concerning this made by ttia lS . r. 192 Llathtg Broketor Sellifig arolrar,aetyere}1t5tifd tttgulre.Attho dll or county,and water,sewer a other ep@CTAT t�istnC�§to 18� tul'ttth the propaity IB 10Cated.RLYWOnqulry should Include,but not be OrMed to,bullding or develbpmenl'mtlralonums 1114 ippllcable to or Deing iwnnsitiererl fiat the PrapeAK arty special building requirements,lilCluding natbacke,height limita or 165 restrictions on wheta bultdlnot frtey be cvnatr on ttta f rapnrty;whether The Prgmdy is aKootad by a flood zona, 186 wetlands,shorelands or otharttttltonmentg�ytirerts"area;road,sd;ooi,fire and any other growth mitlgetlon or.intpad 187 fees toot must be paid the prot edure And length of tkne neceksary to obtain plst approve! end/or a bull thg pe 166 sufficient water,sewer Bntt dNty and any service+connedlon chargea;and ail other charges that must he paid Buyer and 189 Buyer's ap2nts,rcpresentathres,`OOnsultOnto,srrhltecr i rand eingkteers shall have ihO right,from time in ttrno dU";iWo '190: after the feaclbllity contingency,to enter onto the Proprty and to conduct any;tests Or$tudlea:hgt Bttyrar;mAy nisad to t&1. aseedaln the aandilon and Autfabltfty of'the Proper r Buyer'r;Intended purpose,Buyer$ inaN restore tht3 PrrspBny a 1Q` All;ttriprovoments 60 the,Property tc the seine condition they were in prior to the inspection.Buyer shall be tosponslbte for ell:itamogos.:resulthig front any inspection of the Proporty performed on puyer'c banal!If the Buyer does not give notice 164. to rho COAlraiy on ot'before the 1 easihplty t3onfGngcncy Exphetlan.Date identincd in'Specittc errn tyo. t5, II shalt be fes; coiiclusivaty deemed:that Buyer Is satisfied as to davelopmenl arklIq constructlon feAslURlly steal Dost,lC.Buyer_g roc 19l1 n6tica this Agtoorn eaten terminate etxi'the Earnest IDtonay shall be asftrnded to Buyer,.Teas any-uripalrl'Oft" 197`. Bader shell cooperate W6 t4ar In Olaining pemtils or other eppmvals'Buyer may reasonably require for Buyver 148 Intended use of rho Properly!provkted thrlt Seiler shell not be required to Incur any,Ilablhty or expenses In doing so, Ise v Subdivision,fit the property tf>ttt l be subdlvidid.Salter represents that thoni hha bean preliminaryplat approval for the 200 Properly?rid this Agroornent Is corditl6hstt on the roccrding of.the Qnel`ptai;rontisMirtp the Property on-o;60era.iloe 241 data specified:In Spodtlo Term No.14.it the ficial plot la not recordedtbjc aurin data,this Agreement shark temmittata and 2622` the.Earnest Money AKMI bo rotunded to B uye r: w. Informntton vorittcation Parted, Buyer Shnil hff"Old dayp ager fnutual nccoptsnce to.verify all Information pi+at 6d 204. from 5etler or Listing Firm related to the Prcpertrt.Thls Contingency Stull"be deemed saflafled unless puy6j ghres htllrib..205. tlijr6lg the materially Inacou she if Information 4hI then�a'oA O Manny fuel acoeptencg,If buyer SIVE s ltmely node rl+tdsr zD6 this,section,therr"thle A rooms shall'bo refunded to Buyer, 201 9 x. Property.Gondtflon Dleclalmar.isuyer and Sasler:agree:that except no provided In this Agreement all repreeenta#�ana 208 and Wdrmetton regarding the Properly and the imnsaction are s010 from the Seller or Buyer,and not front stainer• 20 The pertt&Jt4cicnowtadgt that the Brokern are not,mrpvnclble for assuring that the prtttiea pgrtorm their at)71gaRsans::210 finder this Agroonte K and that non^ of the Broker;has agreed to independently Investigate or cont'km a.. itlattt[. 211 relAted to this transirctlon except as Rt;atod In this Agreement, or In a sL*Lparats writing signed by such 8toknr. tri 212 addlt m SrOkers do not guarantop thea-vpkret qualty or condition of the Property and some"properties may contain. 213 nulliltng ittBtEilets,lnciGding ald+ng,iVaflhg,Celling,Instllatipn,ttlecirlcal,and plumbk►g,that tisun been rho subject int 224 bktilfs and/or governm6nitl Inquiry bocauso of possibte defects or health naznrds.Some propertles may htl+re othtsr'215 defects arising after ccntiructlon, ouch as drainage, leakage.pest, rot and mold problems, Brokers do not hava;tttb 218 t r 11 Ilse to identify or osaaw detective products, materials, or candlflons. Buyer Is urged to use dues'ditIgentliS tu.417 Inspect the Property to Buyer's satisfaction snot to retain fn>spectom quallfled to Identify,the prasonan of doreallve.218 mtsteriata sod evaluate the condition of the Patpedy as fherC may be defects that MY only be reveglad by cerefdl.219 itistaerlktn.BuY9r:Is Ettivi3ed (o tnvest1g;Me whsdher there I n aufltalant Wa t;uP¢iy to trtaet Buyer$riEl.Bd$.l3uysr is 221 edtii$ad to tnv6.009ats the coat of insurance for the Property,lIncltldlnrg, but not Ilmtted to h0me0wnei>$, llttod; 221 tthqua:ke,landspde,and other available aoverage.Buyer-ackrtowledpes thatlocpl ordlnenoes may restrtd shod terrh:7az T.Anitals of the Property.Brokam nay lot the parites watt locaiingand selecting third party tiervice pro alders,stick rsr:::223 tnapeeters or contmotors, but Brokers cannot punrnrtre or be retptosiWa for ilia services pmv ed 4y those thifd 224 parties The portion shall exercise their own Judgment and clue dntgoryea-regarding third-party se.Nlce pmoylders, 226 9uyoPA Initlala pate Puyar'a Inlrinla Dato B6aeM Mullis We Sellers Initlals Gale 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 08/14 0.0!20/2019 FAT 16!24 FAX 360 426 5230 st.al.ton i ma Dna ,Qmep I r t l Form 220 �n�ydght.1010 Northwest Nh Optional Cleiune Aadendum d4ple Lielfng Service Rev.7110 OPTIONAL CLAUSES ADDENDUM TO ALL RIGHTS RESERVED ong61 of 2 r PURCHASE&SALE AGREEMENT The follnwfng Is part of the Purchase and Sale Agreement dated SeptmI)er T3,10l9 1 between Patty L.Hutton ('Buyer') 1 MW and mmson Count}' ("801ier°) 3 altar �anar conceming 2680 E Mason Lane Ad Sheltan WA 93534 (the"Property"), 4 } Mime* CHECK IF INCLUDED: 6 1. 21 Square PootagelLot SlzetEncroachmanta,The Listing Broker and Selling Broker shake no representations 6 cuncemin0:(a)the lot nizo or tho accuracy of spy information provided by the Sellar:(b)the square rootage of 7 any improvements on the Property,(n)whother them aro any 0-raar..hmenta(fewer.,rookeries,buildings)on 0 the Property,4r by the Property on adjacent properties.Buyer is advised to verify lot size;square footage and 9 encroachments to Buyers own satlefactIm tq 2. Tiffs lnsuranco,The Me insurance ctause'in the Agreement:provides Seller Is to provide the then-current ALTA It- form tform cf Homewmar's Policy Of Tide insurance.The parties Have the option to provide less coverage by selecting 12 a Standard Owner's Policy or more coverage oysclecting an Extoj dad Coverage Policy 13 O Standard Owner's Coverage.Seiler authortzeS$uyer's lender or Closing Agent,at Salter's expense,to 14apply for the,then -ourrant ALTA corm of Owner's Policy of Titla insurance,together with homeowner's 15 additional protection and inflation prrttectlon endorsements,if available at no adrfitiat>rtl cost,rather than 1e the Homeowner's Policy ofTifle Insurance. 17 0 Ext;enclad Coverage,Seller mMori;'os Buyers lender or Closing Agent, at Seller's expense to apply for 10 an ALTA or comparable Rdendad Coverage Pa9cy, of Title Insurance, rather than the Hnm13own6e8 19 Policy of Talo Insurance. Buyer shalt pay tho:Increased costs associated with the Extended Coverage 20 Policy,Including the excess premium over that charged for Homeowner's Policy of Title Insurance and 21 the cost of any survey required by tho title Insurer. 22 3. ❑ Seller Cleaning. Seller shall clean the Interiors of any structures and remeve all trash, debris and rubbish 23 from the Property prior to Bayer taking po.ol:ension. 24 4. t:3 Personal Property, Unless otherwise agreed, Sellar shall remove all personal prpparty from ttla Property 25 not letter than this Possession Data:Any personal proporty remaining on the Proporty thereafter shall become 25 the property of Buyer,and.may be retained or disposed or as Buyer determines. 6. ❑ utilities.To the best of Seller's knowledge,Seller represents that the Prbporty is connected to a: 20 ❑public water main;❑public newer main;❑septic tank;O well(specify type) ; 29 ❑irrigetion water(specify provider) '0 natural Sas;0 telephone; no fO cable; ❑slectlielty;❑other, 31 6, ❑ Insulation"New Construction. If this Is new construction, Federal Trade commission Regulations require 37 the following to be tilled in. If insulation has not yet been selected, FTG,rsgulahons require Seiler to furnish 33 Buyer the information below in writing as moon as availabla; 34 WALL INSULATION:TYPE: THICKNESS: R.VALUE: 35 CEILING INSUtATiOM TYPE: THICKNESS: A-VALUE: 36 OTHER INSULATION DATA 37 7. 0 Leased Property Rovlow Period and Aarsumptlon. Buyer acknowledges that Seller leasee the following .16 Items of personal property that are Included with the sale: ❑propane tallk; o security system; ©satellite 39 dish and cperating equipment; Q other_ 40 rt'p i a 014' atnNlrl+ Dntn pryers Intl* Dale Seller's initiate Drrtn SRITISed IMIUMA Otto 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 09/14 09120/2019 FRI 16: 35 FAX 359 A3tf UAJU tM0Lt011 Sana ann nomoo Wd..,,, •�� Form 22D wApyrighi 2nt9 Optonal 01maos Addendum Northwest Wilpte listing Servino Rev.71151 OPTIONAL.CLAUSES ADDENDUM T4 A41 RIGHTS RESERVED Pepe z of z PURCHASE&BALE AGREEMENT contended I Selfor shell provide Buyer a copy of the(ease for the selected Items wlthtn days(5 days If not flilad Al In) of mutual acceptance. If Buyer, In Buyer's sole discretion, does not'give notice of disapproval %g1thln A2 days(5 days If not filled in)of receipt of the lease(s)or this date that the fease(s)ars due,whichever 41 is oarller,then this lease review period shall conclusively be deemed setlafied(waived)and at Closing,Buyer 44 shall assurrte the lesse(s) for the selected item(s) and hold Sailor narmless from and Against any further 45 obligation, Ilablilty, or claim arising from the lease(s), if the lasse(g) can be assumed.If Buyer gives tl"iy 46 notice of disapproval,then this Agreement:shall terminate and the Earnest Money shall be refunded to Buyer. 47 t3. Q tlotmaowners'Aseoclation Ravlew Period, If the Property Is subject to a homeowners'assoclatlon or any 49 other association,then Sellar shall,at Seller 3 expense,provide Buyer a copy of the following tlocunerrts(if 49 available from the Association)*thin days(10 days If not filled In)of mutual ancsptanar.: 50 a. Assoclation rules and regulatlons,Including,but not limited to architectural guldellne8; 51 b, Association bylaws and covenants,conditions,and restrictions(CC&Rs); 5), a. Association meeting minutoa from tiro prior two(2)years: 53 d. Assoclafion Board of Directors meeting minutes from the prior six(9)months;and 54 e. Association financial statements from the prior two(2)years and current operating budget. 55 If Buyer, in Buyer's sole discretion, does not give notice of disapprovalwitl n days (6 days If not 56 tilled In) of reeelpl of the above documents or the dale that the above documents ere due, whichever Is 57 earlier,then this homeowners' association review period shall conclusively be deemed siatisfiod (waived), If 58 Buyer givos timoiy notice of disapproval,then thio Agreement shall termina#¢and the Earnest Money shall be 59 refunded to Buyer. eo S. 0 Homaownoml Ansocltltlon Transfor t=ea. If there Is a transfer too imposed by.the hameownem'essociathyn 61 or any other oaeociation(e,g,a'move-in"or"move-but'fas),the fee shall be paid by the party as provided for 62 1n the assocla(on documents.if the association documents do not provide Mich party pays the fee, the fea 63 shall be paid by❑Buyer,Id seller(Seller if not fllled In), 64 10. ❑ E=xcluded Item(s), The following item(a) that would alherwise be included In the sale of the Property, Is e5 oxcluded train the sale ('Excluded Item(a}"}. Seller shall repair any damage to the Property caused by the e6 removal of the Excluded Item($).ExcludoG Item(s): 57 e8 89 11. ❑ Home Warranty, 9uyer and Seller acknowledge that home warranty pians ars available which May provide 70 additional protection and benefits to Buyer and Seller.Buyer shall order a one-year home wsrmnty As follows: 71 o. Nome warranty provider: 72 b. Seller shall pay up to$ _($0.00 If not filled In)of the cast for the home warranty,together 73 with any included optlonsi and Buyer tihall pay any balance. 74 c, Options to be Included: 75 (none,if not filled in), 75 d, Other. 77 12. Q Other. 7A 79 eo 81 02 83 84 as s auyses InRIMs polo 9uyaf s Initials bate Date SftIMrs Inlihis Dxln 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 10/14 09/80/2019 FRI 16tZL rax JOU azo 44JV OLOLIQu Lmriu nuu nvuwe t Form S5F aoopyr,&2010 F j Form 3 Rv Cen&nponcy ftddend�mr Nerttment Mulrrprb Liafing 9erAw FaijiTho ALL MOWS RESERW11 pepe 1 of 1 FEASIBILITY cONTINGENCY ADDENDUM Tho following Is part of the Purchase and Sale Agreement doted 4ePtemh4r23,2019 1 petWeen Patty I—MGM ("Buyer") 2 Hamar ever and Masan Ceunl ("Seller") 3 s 4r Salle eoncarning 2680 E Mayen Lilco Ret Shelton LVA 99984 (lite"Property', 4 ncm��t PLY sill- ap Feaslbllfty Contingency, Buyer shalt verify within10 days(1 o days If not titled In)atter mutual nccoptanca 5 (tet 0'FeAsiblifly Contingency 5:01ratlon Clete")the Eultabtiliy of the Property for Buyer's Intended purpose Including, 0 but not limited to,whether the Property can be platted,developed nndlor built on(now or in the future)and What It will 7 cost to do this. This Feasibility Contingency SHALL CONCLUSIVELY BE DEEMED WAIVED unless Buyer gives 8 notice of disapproval on or before the Feaslblllly Contingency Expiration,Date. If Buyer gives a timely nmtice of 9 disapproval,then this Agrooment shall terminate and the Earnest Money shat)be refunded to suyet Buyer should not t0 rely on Piny oral statements concerning feasibility mado by the Seller. Usting Broker or Selling Broker. Buyer should 11 inquire at the city or county,and water,sower or other special districts In which the Property is located.Buyer's Inquiry`12 ehall include, but not be limited to, building or development moratoria applicable to or being considered for the 13 Property:any speclal building requirements,Including setbacks,height limits or restrictions on where buildings may 14 oonstructad on the Froperty; whether the Property la Ofl'oclod by a flood zone, wetlands, shorelands or other l5 environmentally sensitive area;road,school,flra rand any other growth mitigation or impact feet that must be paid;the'i6 procedure and length of time necessary to obtain plat approval and/or a bullding permit;sufflclent water, sower and 17 utility and any services connection charges;And all othor oherges that must be paid. 18 guyor and auyova agents, reproserdatives, consultants,architects and engineers shall hwis tate dght,from til'ne to 19 time during the feasibility contingency,to enter onto the Property and to conduct any tests or studies that Buyer may 20 need to ascertain the condition And auitn lily of the Property for Buyer's intended purpose.Shyer shall restorti the 21 Property and all Improvements on the Property to the same conditlon they were In prior to the Inspection.Buyer shall 22 be responsible for all damages resulting from any Inspection of the Property performed on Buyer's behalf. 9.a m AGREEMENT TERMINATED IN NOTICE OF SATISFACTION NOT TIMELY PROVIDED, If checked, th1s24 Agreement shall terminate and Buyer shall receivo a refund of the Earnest Money unless Buyer gives notice to Seller 25 on or before the Feasiblllty Contingency Expiration Rate that the Property Is sulttablo for Buyer's Intended purpose, 29 Buyer&Inlliala Date Buyer's Inklal& Dale Seller's InIIIais DAIS seRero fri lale Dille 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 11/14 99/29/.'019 YFIt los�9 NpA sou eco a,&zv rmc.Lmon La RGI ouu nvtuoa yup- f x-. 4 Farm 42 :,opyr pht x010 i Agency Dledosure Noattnvest MuMptn UntIm!BhryicA Rov,1110 AU.RIGHTS RESERVED PROM 1 of 1 AQENCY DISCLOSURE Washington State law rogttlre9 real astate brokers to disclose to RI parties to whom the.broker renders real estate 1 brokerage aervlcea whether tltc broker represent;thr.seller(or Ics5or), the buyer(or lessee),both the!�eellerA"sor 2 and buyer/ieeoee,or neither. 3 This forrtn is for use when the transantlan forms do not otherwlae contain all agency disclosure provision. 4 THE UNDERSIGNED BROKER REPRESENTS' Buyer, 5 THE UNDFRSIGNRD BUYER!LESSEE OR SELLER/LESSOR ACKNOWLEDGES RECEIPT 6 OF A COPY OF THE PAMPHLET ENTITLED"THE LAW OF REAL ESTATE AGENCY" 7 BUYER / ✓ 7 pf a.l (q &Ignaturti Date a 5lgnraturA Data 10 Signature Date 11 Sign;atura _ Date BROKER JoArurY,,!`uedoa 12 Print/Type BROKER'S SIGNATURE 13 FIRM NAME AS LICENSED Ihkv tan Lijnj A-1-jup ,J X 14 Print/Type FIRM'S ASS LIMED NAME(if applicable) 15 Print/Type t 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 12/14 UY/'6U/GU 1Y V&4 103 a0 rMA DDV •417 94DV PILD Wil LCltAM auu ••v.uvq ru•- -- I l I Form al DCOpytidht 2010 Earnest Money F'Mml000u Nolo Northwest MvttipIn UnUrV Saroioe Rsv,7110 A"RIGHTS RFMRVr=b Papa 1 of 1 EARNEST MONEY PROMISSORY NOTE $ 500.00 Shelton Washington 1 FOR VALUE RECEIVI=C, PottyL.Kilutan 2 ('Duyerl 3 Umv agreo(s)to pay to the order of euolton Land_&Homes,LL,C (Selling Firm or Closing Agent) 4 the sum of Vivo hundred- Dollars s (s 500,00 1,res fnitovw: a ❑ within 3 days following mutual acceptance of the Purchase and Sale Agreement. 7 g} • within 5 do s following Imatuai"aeeo tante of r&S a cement . a This Note is evidence of the obligation to pay Earnest Money under a real estate Purchase and 9 Sale Agreement between the Buyer and Mases Chanty Jam„_ 10 $141 ('Seller") 11 dated Yeprcmberz3,1nt4 _ Buyer's failure to pay the Earnest Money 12 strictly a3 shove shall constitute default on said Pclfah©►;e and Sale Agreement tie Well as on thla Note, to If this Note shall he placed in the hands of an attorney for collection,or If suit shall be brought to collect 14 any of the balance due on this Note, the Buyer promises to pay reasonAbIn ntlomeya'fees, and all 16 court and collectlon costs, 16 Date: 094.3,109 BUYER 1B BUYER 19 •"On closing"or nlmllar language is not recommended,u%e a datinite date, 1 09/14/2019 22:35 6503287516 FEDEX OFFICE PAGE 13/14 (19f7afzo19 FRI 16: 26 PAX 150 425 Il230 fr,elton Laaa nna t+0lneb VJVLa/V+7 ALTA COMMITMENT FOR TITLE INSURANCE SCHEDULE A OrderNoa 20195248 EXHIBIT"A" Legal Description, � Lot one huhdred covontyfour('174),lake I.Imerick4WIslon No.Four,Volume 6 of Plats,pages 190 to 195,both Inclusive,records of Madan County,Washington. Parcel No.32127 53 00174 Abbrovlated Legal; lot 174,Lake UrnerickZly 4 �hNA P Parcel No(a): 32177-59-00174 Purportad Address; None assigned,WA Yhta page to only apart of a 2016 ALTA®Commttmant ter 11Un Insurance, nits Commitment is not velhi Ahouf the Notice;ft Commlhnant to Issue Lloprr&e_C_81�r.+�r7jpfl(_��(�. SGhOdf/1C�'.4chaAth`H�9Lt I•fZ0IXl Monts anC schadWa S.Part It ExteAna. W71d�w ORT ForM 49%M WA AP401Mol TG u4107 id &chsdule A ALTA Comm1unent for Thio Insurance P9pe 2 of 2 09/14/2019 22:35 6503287518 FEDEX OFFICE PAGE 14/14 0.9/20/2019 i*RI 16, 36 pnx 360 424 9730 l;hnlbon Land Lina Homes �++��'•�•� I i N t ` TITLO COMPANY Pat of die Aeale Wd Me droup Order Number: 20195248 Property Addmis'Nine assigned Lake LirMHcic-DIviston No. Four,Volume 8 of plats, pages 190 to 196,both indusive ITS: S • r 176 w l •� �t 4, aa1 M w, i .. Rrn�.. !��{ 9 go` t4 � 41 nY c9 �, g � r � '�',,a• " is ''sa'a'!"`+tV. Y" 'g'.t" 173 �, � � : 4,zo•a�'o�" �' 172 t It 4a � 4+ Eat Wo 44 &07R Erna' Z31 Id- 11th h not a aurtny, M la p,nvtdnd as a ocnvenlenco to locate the land Indicated hereon with rafarenoe to Wmato and other land. It Is not Mtandee to 'ebm all meN!er'retaw to(ho proporty kfciudtng,but not ltmliliarl to,creat,dIm"LrJonr• amceaamanta,on=achments,of location bow Urinn. It to not o ppart ot,nordoei1 modify tho commitment or poiloy to v h ch It Is attached. 1'1kt camtrnny aaeumoa no labinty for any matter ralated-faft+ketch. Retrrenen ieheuld bn moxa is en nccurale aurvey for 1uMerinfarmrttlon i30 W ltath'ond Ave,J}teSron,W'A 98584 I'hono:(160)425.9713/(360)426-0716 Web Site: VM7W.Mx:wnC6untyT1t10.00m Mason County WA GIS Web Map f "C E IREE PL REE P sat 'n t 7 , 9_ i j� : I E R H FrTRi�LE .v E E 2�` E PAAs!-tN 1 a t r. EE X 4 ' I, + . r 1 'E F 40 F TF'NLEE r N Arb �t« VIVO i111 4f t9j E.�F,%LBRI 11 14.E f'C I IiE LrrlE1 _ dK. L ME fl tpt- LDOEALYh1 RD + s Q- 11/6/2019 2:52:23 PM 1:1,534 0 0.01 0.03 0.05 mi County Boundary iI ' I t 0+ +� 0 0.02 0.04 0.08 km Site Address (Zoom in to 1:5,000) Tax Parcels (Zoom in to 1:30,000) Esri, HERE, Gannin, (c) OpenStreetMap contributors, and the GIS user community, Source: Esri, DigitalGlobe, GeoEye, Earthstar Geographics, CNES/Airbus DS, USDA, USGS, AeroGRID, IGN, and the GIS User Community Mason County WA GIS Web Map Application Richard Diaz I Earthstar Geographics I Esri,HERE,Gannin I RESOLUTION NO. DECLARATION OF SURPLUS PROPERTY AND APPROVAL OF SALE WHEREAS, Mason County owns the real property listed and described in Exhibit A,attached hereto; and WHEREAS,certain parcels of the property are tax title property with delinquent property tax, penalties, interest and expenses owing;and WHEREAS,other parcels were acquired for various purposes;and WHEREAS, the Board of County Commissioners, upon the recommendation of the Property Manager and Property Management Committee has determined that the property is surplus to the needs of the County;and WHEREAS, Mason County issued public notice regarding the declaration of this property as surplus and its intent to sell it for three consecutive weeks in a newspaper of general circulation within Mason County; and WHEREAS, the Mason County Board of Commissioners, on Tuesday, May 4, 2010, held a public hearing during which members of the public were able to testify before the Mason County Board of Commissioners regarding the property,the proposed declaration of surplus and sale. NOW, THEREFORE, BE IT RESOLVED by the Mason County Board of Commissioners that the real property described in Exhibit A, attached hereto, is declared surplus property and the Property Manager is authorized to offer all of said property for sale, first by a public, sealed-bid process and, as necessary, by any of the several means authorized by Mason County Code 3.40. Offering prices are to be those listed in Exhibit A, which prices were established by appraisal, tax assessment or as otherwise recommended by the Assessor's Office. The Property Manager may adjust these prices upon receiving new information from the Assessor's Office. The final selling prices are to be approved by the Board of County Commissioners;and BE IT FURTHER RESOLVED,that the proceeds of the sale of said property are to be dedicated first to any delinquent property tax obligations and related penalties, expenses and assessments; and next to reimbursement of the Road Fund for expenses of the Property Manager; and finally to the Reserve for Accrued Leave Fund. DATED this y day of 2010. ATTEST: BOARD OF COUNTY COMMISSIONERS MASON PQYNTY,WASHINGTON annon Goudy, Cler the Board osslagher, Chair APPROVE TO.FORM: f _ I / Tim Sheldon, Commissioner De" s6 6ti g for Assessor Auditor 4LyRing Erickson, Com issioner Treasurer Property Manager Exhibit A Sale Assessed Asking Approx. Parcel Tax Parcel# Address/Location Value Price Comments Area 1 12107 14 00110 250 E.Lombard Rd 56,375 40,000 Tax Title,Health Dept lien 2.50 acres 2 22018 33 60020 4600 Block Agate Rd 15,000 6,800 Deeded to County,purpose 0.80 acres unknown 3 132024 53 01001 11 E.Agate Beach Dr 15,000 15,000 Tax Title 0.27 acres 4 132024 53 01003 41 E.Agate Beach Dr 15,000 15,000 Tax Title 0.27 acres 5 32024 53 01002 21 E.Agate Beach Dr 15,000 15,000 Tax Title 0.27 acres 6 32024 53 01004 51 E.Agate Beach Dr 15,000 15,000 Tax Title 0.27 acres 7 32024 53 01005 71 E.Agate Beach Dr. 15,000 15,000 Tax Title 0.27 acres 8 32016 53 00900 E Payton PI 23,000 34,000 Deeded to County,purpose 4.0 acres unknown 9 32021 53 02036 161 E.Midway Ln 33,700 3,370 Tax Title 0.17 acres 10 31909 24 00000 Lynch Rd 5,005 5,400 Deeded to County,uneconomic 0.77 acres remnant 11 32020 54 03002 Hill St 32,500 20,000 Tax Title 0.14 acres 12 32030 51 07010 Lake Blvd 100,000 100,000 Deeded to County,former shop 0.58 acres location 13 32030 51 10001 Lake Blvd 100,000 100,000 Deeded to County,former shop 0.55 acres location 14 32030 51 08026 Off Lake Blvd 10,000 10,000 Tax Title 0.14 acres 15 42024 15 01000 1835 W. Franklin St 50,000 22,000 Tax Title 0.17 acres 16 42017-13-00020 Shelton Matlock Rd 1,130 5,500 Deeded to County,uneconomicremnant 24 acres 17 32127 53 00174 E Mason Lake Rd 5,000 5,000 Deeded to County,uneconomic 0.18 acres remnant 18 32127 53 00176 E Mason Lake Rd 12,500 12,500 Deeded to County,uneconomic 0.24 acres remnant 19 22107-50-00072 E Mason Lake Rd S 485,940 530,000 Waterfront,Appraised:$530,000 1.01 acres 20 42212-51-23016 N.Old Mill Hill Rd 20,000 25,000 Tax Title 0.81 acres 21 32331-22-00320 N.Terrace Loop 15,000 15,000 Tax Title 0.15 acres 22 32216-50-01006 51 NE Forestry Dr 2,500 2,500 Tax Title 0.33 acres 23 32214-50-05901 72 N. Fern Ct 16,000 16,000 Tax Title,declared surplus 0.37 acres Resolution 58-04 24 32214-52-05035 NE Tahuya Blvd 20,000 20,000 Tax Title 0.23 acres 25 12206-52-00006 90 E.Judy Lane 2,500 2,500 Tax Title 0.80 acres 26 12220-50-46001 Wheelwright St 5,000 5,000 Tax Title 0.11 acres 27 32033 33 60010 Cole Rd 80,000 88,000 Deeded to County,purpose 2.60 acres unknown 28 42012 50 00001 11840 SR-101 291,585 250,000 Deeded to County by Timberland 0.45 acres 42012 50 00002 Regional Library RESOLUTION NO. REPLACING RESOLUTION 95-19 APPROVAL OF SALE OF SURPLUS PROPERTY WHEREAS, Mason County owns the real property parcel #32127-53-00174, located on E. Mason Lake Rd., Shelton, WA that was declared surplus by Resolution No. 33-10 at a public hearing on May 4, 2010; and WHEREAS, the Board of County Commissioners, upon the recommendation of the Property Manager, has determined that the property is surplus to the needs of the County; and WHEREAS, Resolution 95-19 was adopted on September 24, 2019 before notification was received that the buyer had backed out of the sale; and WHEREAS, Mason County has received an offer to purchase the property in the amount of$4,000, and a public hearing was held on November 12, 2019 to consider the offer; WHEREAS this sale supersedes the previous sale; NOW, THEREFORE, BE IT FURTHER RESOLVED by the Mason County Board of County Commissioners that the property described above (parcel #32127-53-00174) is approved at the price of $4,000; and BE IT FURTHER RESOLVED, that the proceeds of the sale of said property are to be dedicated first to any delinquent property tax obligations and related penalties, expenses and assessments; and next to reimbursement of the Property Management expenses; and finally, to the Road Fund; and BE IT FURTHER RESOLVED, that the Chair of the Commission is authorized to sign the related closing documents and the Property Manager initiate payment of 8% fee of sale price to the County's real estate agent. DATED this 12th day of November, 2019. ATTEST: BOARD OF COUNTY COMMISSIONERS MASON COUNTY, WASHINGTON Melissa Drewry, Clerk of the Board Kevin Shutty, Chair APPROVED AS TO FORM: Sharon Trask, Vice-Chair Tim Whitehead, Chief DPA Randy Neatherlin, Commissioner MASON COUNTY AGENDA ITEM SUMMARY FORM TO: BOARD OF MASON COUNTY COMMISSIONERS From: Diane Sheesley, County Engineer Action Agenda DEPARTMENT: Public Works EXT: 450 COMMISSION MEETING DATE: November 12, 2019 Agenda Item #/ BRIEFING DATE: October 7, 2019, September 30, 2019, August 12, 2019 and June 11, 2019 BRIEFING PRESENTED BY: Diane Sheesley and Dave Smith [] ITEM WAS NOT PREVIOUSLY BRIEFED WITH THE BOARD Please provide explanation of urgency: ITEM: Sand Hill Rd. - Remove School Zone and Establish Playground Zone - Hearing BACKGROUND: The Sand Hill Elementary School zone signing on Sand Hill Road extends from MP 0 .715 to MP 1.026, for a distance of 1642 feet. Students attending the school either ride the bus or are transported by parents (70% ride the bus and 30% ride with parents). To better address public need, Public Works is proposing to remove the school zone and instead, establish a Playground Zone along the ball fields (from MP 0.822 to MP 1.012 (Northbound) and from MP 0.746 to MP 0.935 (Southbound)). The proposal includes a set of pedestrian actuated rapid flashing beacons (120 Volts or solar powered) at the cross walk, new playground signs, and road work to improve the shoulder and ditch per ADA requirements near the crosswalk. BUDGET IMPACT: Estimated cost to the Road Fund will be $16,000. RECOMMENDED OR REQUESTED ACTION: Recommend the Board approve the resolution authorizing Public works to remove the school zone and establishing a playground zone on Sand Hill Road. ATTACHMENTS: Ordinance ORDINANCE NO. AN ORDINANCE AMENDING RESOLUTION 170-85 AND REPLACING ORDINANCE 35-15 CHANGING THE SPEED LIMIT ON SAND HILL ROAD IN MASON COUNTY WHEREAS,Mason County Code No. 10.52.325 and RCW 46.61.440 designates that a County may create a school or playground speed zones in which it is unlawful to operate a vehicle at a speed in excess of twenty miles per hour;and, WHEREAS, the Revised Code of Washington RCW 46.61.415 permits local authorities to establish or alter maximum legal speed limits pursuant to RCW 46.61.400 on County road within their jurisdiction based on engineering and traffic investigation;and WHEREAS,Mason County previously established the speed limits for the school zone on Sand Hill Road on July 14,2015 under Ordinance 35-15 and an alternate speed limit for the rest of Sand Hill Road on December 31,1985 under Resolution 170-85,along with another county road WHEREAS,the Mason County Public Works Department has conducted an engineering and traffic investigation on Sand Hill Road;and WHEREAS, County Commissioners held a public hearing and received public testimony regarding the speed limit zones on Sand Hill Road WHEREAS,the County Engineer has reviewed the engineering traffic investigation recommendations and has determined the school zone be removed and playground zone and speed limit zone be established is warranted as shown,with the entire road posting showing as follows: NORTHBOUND ROAD NO. ROAD NAME SPEED M.P.- M.P. 86070 Sand Hill Rd 35 0.00-0.822 20 0.822-1.012 35 1.012-5.796 SOUTHBOUND ROAD NO. ROAD NAME SPEED M.P.- M.P. 86070 Sand Hill Rd 35 0.00-0.746 20 0.746—0.935 35 0.935—5.796 THEREFORE,BE IT RESOLVED,that this ordinance amends that portion of Resolution 170-85 pertaining to Sand Hill Road and replaces Ordinance 35-15; THEREFORE,BE IT RESOLVED AND ORDERED, that the speed limit is effective,as soon as posted,as shown above for Sand Hill Road and the County Engineer is directed to erect the necessary signs in conformity herewith. DATED this of 2019. BOARD OF COUNTY COMMISSIONERS MASON COUNTY,WASHINGTON Kevin Shutty,Chair ATTEST: Sharon Trask,Vice Chair Melissa Drewry,Clerk of the Board Randy Neatherlin,Commissioner APPROVED AS TO FORM: Tim Whitehead,Ch.DPA cc: Co.Commissioners Engineer JOURNAL: Publ.It: 11/21/19