PURPOSE: The purpose of this agreement is to establish
the local decision making group to develop and implement a watershed management
plan that fulfills all of the requirements (water quantity assessment)
and options (water quality, instream flow, and habitat assessments) authorized
by ESHB 2514. The goal of the watershed plan is to ensure that the water
resources in Water Resources Inventory Area (WRIA) 1 are managed to balance
the competing resource demands for the WRIA in a manner that combines
and coordinates data collection efforts, is consistent with Endangered
Species Act (ESA) recovery actions, ensures that the water quality standards
for the designated uses of each water body are achieved, and does not
conflict with exis
ting state statutes, federal laws, tribal laws, and tribal treaty rights.
INITIATING GOVERNMENTS: The initiating governments are
the Lummi Nation, the Nooksack Tribe, Whatcom County, City of Bellingham,
and the Whatcom County Public Utility District No. 1. The Nooksack Tribe
was invited to be a signatory to this agreement, but has elected at this
time to participate in the planning process without signing this agreement.
PLANNING UNIT: Whatcom County will be
the Lead Agency in the planning effort. The first task of the initiating
governments will be to fully define the Planning Unit. The Planning Unit
will include, but is not limited to: Whatcom County, City of Bellingham,
Whatcom County Public Utility District No. 1, Lummi Nation, and the Nooksack
Tribe. The following governmental entities will be invited to participate:
Washington State departments of Ecology, Fish and Wildlife, Natural Resources,
Health, and Transportation; United States Bureau of Indian Affairs, Geological
Survey, Bureau of Reclamation, Environmental Protection Agency, Fish and
Wildlife Service, Natural Resources Conservation Service, Forest Service,
and the National Marine Fisheries Service; and the other local governments
within Whatcom County.
OBJECTIVES:
- Use the best available science to make reliable estimates of the total
amount of available water in the WRIA (undepleted condition).
- Use the best available science to make reliable estimates of the tribal
water rights for both instream and out-of-stream uses.
- Use the best available science to make reliable estimates of the amount
of water available for allocation to junior users and for further appropriation.
- Use the best available science to make reliable estimates of the total
maximum daily loading (TMDL) of contaminants throughout the WRIA to
ensure that the water quality standards for the designated uses of each
water body are achieved.
- Coordinate water resource management efforts with salmon recovery
actions.
TASKS:
- Identify funding sources and contract with the U.S. Geological Survey
to collect streamflow data throughout the WRIA for a 10-year period.
- Identify funding sources and collect climate data at representative
locations within the WRIA to allow the precipitation and evapotranspiration
components of the water budget to be accurately estimated for each month.
- Evaluate the accuracy of existing land use/land cover data; collect
additional land use/land cover data if necessary.
- Identify funding sources and conduct a depletion analysis to accurately
estimate the spatial and temporal uses of water in the WRIA throughout
the year.
- Estimate undepleted streamflow based on collected streamflow data
and the depletion analysis results.
- Identify funding sources and conduct an analysis to estimate optimal
instream flows for the fisheries resources in the WRIA throughout the
year.
- Estimate the most senior instream and out-of-stream water rights in
the WRIA.
- Estimate the next most senior water rights in turn based on the priority
date of existing water right holders.
- Estimate the amount of water remaining and thus available for allocation
to new appropriators.
- Conduct necessary data collection and analysis to estimate TMDLs for
fecal coliform (in progress), temperature, biochemical oxygen demand
(BOD), sediment, and other water quality attributes of concern.
- Coordinate work with fish habitat team created under ESHB 2496.
DECISION MAKING:
- Decisions will be based on the best available science. For the purposes
of this agreement, the best available science is defined as objective
and repeatable analyses based on adequate empirical data collected with
appropriate quality assurance/quality control procedures in place.
- Decisions will be made by unanimous vote with each member of the initiating
governments having one vote. The parties agree that the term "consensus"
as used in ESHB 2514 and this agreement means "unanimous agreement",
and further agree to use this definition throughout their planning effort
notwithstanding any contrary interpretation or definition of the term
which may be placed on it by any other person or entity, including the
courts or the legislature.
TERMINATION AND PRESERVATION OF RIGHTS:
- Any parties to this agreement may terminate their participation with
written notice of intent to terminate followed by a formal termination
letter.
- The parties recognize that ESHB 2514 provides that the planning process
shall not contain provisions which conflict with tribal treaty rights
or which impose an obligation on any participating government. They
therefore agree that tribal participation in this process shall not
constitute an admission or agreement by the participating tribe that
any estimate of tribal treaty rights are binding on it, unless the affected
tribe expressly so agrees in writing at the conclusion of the process,
and such tribal agreement is approved in writing by the United States.
- The parties agree that any estimate of tribal treaty rights are not
binding on the initiating governments unless the affected parties expressly
so agree in writing at the conclusion of the process.
- The parties recognize that final agreement is more likely if the parties
can freely discuss alternatives and hypotheticals without prejudice
to positions they may take in legal proceedings. Therefore, no discussion,
proposal, plan, agreement, (other than a formally adopted plan or agreement)
offer of compromise, proposed agreement, concession, statement, material,
or documents whether oral, written, or in electronic or other format
(herein the "protected material"), made or prepared by the
parties or their authorized agents in furtherance of the planning process
envisioned by this agreement shall be offered into evidence against
the party providing the "protected material" in any legal
or administrative proceeding. Protected material originating from the
Lummi Nation shall not be offered into evidence in any legal or administrative
proceeding, regardless of whether the Lummi Nation is a party to that
proceeding. Reports and data from original studies conducted by or on
behalf of the planning unit are public information.
- No amendment or alteration of this agreement shall arise by implication,
course of conduct, or change in state law. This agreement may be altered
only by a subsequent written document, signed by the parties, expressly
stating the parties’ intention to amend their agreement.
Lummi Nation
Whatcom County
____________________ Date:_________ ____________________ Date:_________
Henry Cagey, Chairman
Pete Kremen, Executive
Lummi Indian Business Council Whatcom County
City of Bellingham
Whatcom County Public Utility District No. 1
____________________ Date:_________ ____________________ Date:_________
Mark Asmundson, Mayor
James Roberts, Commissioner
City of Bellingham
Whatcom County PUD No. 1