Document Puyallup_doc_910f9f4f5f

L r- . ( - r [ [ L l. DOCUMENT 2: PAYMENTS TO MEMBERS OF PUYALLUP TRIBE INTRODUCTION This document accompanies and is an integral part of the Agree- ment. This document describes the manner in which each qualified Tribal member will receive a one-time payment from a fund estab- lished under the Agreement. A. ESTABLISHMENT OF FUND: ELIGIBILITY FOR PAYMENTS The Tribe will receive $24 million that will be placed in an annul ty fund or other investment program. Each person who is an enrolled member of the Tribe at the time of ratification of this Agreement by an affirmative vote of. the Tribe's members will receive a one-time payment from the fund. Each enrolled member who has reached the age of 21 at the time that the Agreement becomes effective will -receive the payment as soon as possible after that date. Payments due to each member who is deceased subsequent to ·the affirmative vote, but prior to the date of distribution, shall be paid to such member's heirs under tribal law. All other members will receive payment upon reaching the age of 21. · · B. LEVEL OF PAYMENT TO EACH TRIBAL MEMBER It is anticipated, based upon the bes.t available--information, that each Tribal member qualified to receive . a payment from -the fund will receive a single payment of approximately $20,000. The level of payment is the same for each enrolled_ member who is qualified to receive a_ payment. This level is . based upon an estimated enrolled membership in the Tribe of 1,400 on the date of ratifica- tion of the Agreement. Of these 1;400·enrol1ed members, approxi- mately 6 7% of the members are at least 21 years· of age and will be eligible to receive_the payment when this Agreement is implemented as set forth in Section X. The remaining approximately 33% enrolled members will receive the same payment upon reaching the age of 21. The exact payment that each qualified member will receive may be higher or lower depending on the applicable interest rate, the exact number of enrolled Tribal _members and. the age distribution of Tribal members on the date the f~nd is Document 2 - Page 1 August 27, 1988 ---PAGE BREAK--- I established. The following examples showranges of payments that would be made to each member -·assuming different interest rate l~v~ls and the am6unt left after 21 years: · Interest Rate When Fund Created 8.0% 8;5% 9. Percent of Members at Least Age 21 67% 67% 67% C. MONEY REMAINING IN THE FUND Range of Payment To Each Tribal Member Age 21 $17,000 $18,500 $20,000 20,000 21,000 22,000 The fund will be in place for 21 years from the'd~te of ratifica- tion of the Agreement. After payments are made to all qualified •rribal members, it is expected· that approximately million wiJ.l be left in the fund. The precise amount may vary depending upon the interest rate, the exact number of Tribal-m~mbers and the age distribution. The decision· of how the remainder will be utilized will be left to a vote ·of the Tribal _members after all payments have been made. D. SELECTION OF FINANCIAL INSTITUTION The Board of Trustees referred to in Section III of the Agreement and Document 3. will be responsible for selecting_ a financial _institution or institutions to· administer the funds. · The finan- . cial institution( s) shall be selected by the Board rto later than 6 0 days after the Board is elected. It is the_ intention of the parties_ to this_ Agreement that ·the~ payments -Eo_ each qualified member be ·made as soon as is practicable and financially prudent, as determined by the Board iri consultation\wl.tll the ·financial in-stitution. · E. TRIBAL MEMBER ELECTION Each tribal member at the tiine of ·the distribution may el_ect in $1,000 -increment1:; to leave such monies in the fund. , Monies held in · the fund on account of such reinvestment shall earn such returns a~ offered by the Boird. Document 2 ~ Page 2 August 27, 1988 .f I 1 t I I I I ' l . ' l l [ 'l l l l I L ---PAGE BREAK--- c· r r L r r r~ : l. l. I DOCUMENT-3: PERMANENT TRUST FUND FOR TRIBAL MEMBERS . INTRODUCTION This document accompanies and is an integral part of the Agree- ment. ·This document describes the establishment and· administra- tion of a permanent trust fund for tribal members. A. TRUST FUND The Tribe and its members shall receive a permanent trust fund· totalling $22 .million to be held in trust by the United States for the benefit of the Tribe and its members. The purpose of the fund is to provide :the. Tribe a · permanent resource that enhances the ability of the Tribe to provide services to Its members. The full amount provided by this Agreement shail be held in trust . perma:.... nently. Only the income earned from the trust may_ be spent. Income earned from the fund shall be used solely for the following purposes: Yield Rates 8.0% 8.5% 9.0% * 1. 2 . 3 . 4 . 5 . 6. Housing Elderly Needs Burial and Cemetery Maintenance Education and Cultural Preserv~tion Supplemental Health Care Day Care Other Social Servic~s Income Available to Tribe in a Year $1.76 million $1.87 millio"n $1.98 million . ' Incom~ Generated Over 20 years* $35~2 million $37.4 million $39.6 million Funds· Remaining in Trust $22 million $22 million $22 million The 20 year time period is chosen to d~monstrate · the · amount of .income gei)erated over time. The bocu~ent 3 - Page 1 August 27, 1988 ---PAGE BREAK--- Trust will be in existence permanently. Thus, the income·-: continues to be -genera·ted . indefinitely. f. - . B. DISTRIBUTION OF TRUST FUND INCOME AND REVIEW OF TRUST FUND- MANAGEMENT Distribution of the income from the trust fund, and review of trust fund management, shall be directed by a. nine-member Board of Trustees cdmposed of the followingl 1. Tribal Member Trustees~ Three Trustees shall be elected by the Tribal members. Such_Trustees shall-not _be members of the Tribal Council. 2 ~ Tribal Council Trustees: Three Trustees elected by a majority vote of the Tribal Council. shall be 3. F_ederal Government Designee: The Federal _Government,, by and through the Bureau of Indian Affai~s of the United State~ Department of . Interior, shall appoint-- a federal - employee designee to serve as a ~rustee. - . 4. Financial .and/or Social Service Community Trustees: The Tribal and Federal Trustees shall -appoint two additional Trustees to- be selected from the financial and/or _social service _community. ·-·Such_ Trustees shall be qualified anc.l competent ·financial advisors from regionally or- nationally recogrii~ed financial institutions of s~und profeSsional repute, or experts in delivery of social services. • · - C~ TRUST ADMINISTRATION: The Trust Fund shallbe administered, directly or by contractj by the Se~~etary df Interior through the Bureau of Indian. Affairs of the United· States : Department of Interior. ~ . . D. DURATION OF TRUST: The Trust Fund shall be in existence for the duration of the existence. of the Tribe, as_ recognized· by the· United States Government.· . - . . E~ REVIEW AND REVISION OF TRUST ASSET ALLOCATIONS: Ten years after the date of exec ution of the Trust, the. Tribal members may, by a majority vote of qualified members as.definedby the Tribe's Constitution, change the purposes for which the funds are allocat~ ed. However, the total Trust principal of $22 million shall not be reduced. - After the fi~st ten-yea~ review of the Trust fund allocation, the Tribal members may ~onsider and make periodic· revisions or amend- ments t6 the-purposes for which the trust funds are allocated in bocu~ent 3 - Page 2 August 27, 1988 J 1 I I I ·i I I I ( l - l t l l ---PAGE BREAK--- L~ r r~ [ r· r the manrier set f-orth above, at· frequencies of· no less than five years and no greater than twenty years as set by the · Tribal Council. F. EXEMPTION FROM STATE REPORTING REQUIREMENTS: The Trust shall be exempt from any State reporting requirements generally applica- ble to charitable or other trusts. The Trust sha11 be subject to tribal reporting requirements. Document 3 - Page 3 August 27, 1988 ---PAGE BREAK--- l ---PAGE BREAK--- [ r L r L r c· f : L. L f l DOCUMENT 4: FISHERIES A. FISHERIES ENHANCEMENT PROGRAM Introduction. All parties to this Agreement share a common goal . to protect and enhance· the fisheries .resource .including necessary habitat in the Puyallup .River and Commencement Bay Basins, while allowing construction and development to occur for the benefit of all citizens, both Indian and non~Indian. The program elements described below ~ere developed by a coopera~ tive technical team comprised of fisheries experts from the Tribe, Washington Departments of Fisheri~s and Wildlife, and the University .of washington. Their recommendations were originally· submitted to the parties on December 19, 1984 in the "Fisheries· Enhancement anq Management Program for the Puyallup River Drainage and Estuary." . The intent of this cooperative fisheries program between the Puyallup Tribe, the Washington State-Departments of Fisheries. and Wildlife, the Port of Tacoma, and local goverrunents is to increase the current level of salmon and steelhead production released directly into the Puyallup River and Commencement. Bay Basins and to enhance the fisheries resource by protecting,. improving and restoring habitat. $7,935 1000 will be transferred to the Tribe by the State of Washington for the following agreed upon types of fisheries· enhancement programs: new facility ··s.._ite acquisition; hatchery construction-and/or improvements·to existing facili- ties; construction and siting of net pen complex; "spawning channel· construction~ improvements to existing intertid~l areas~ creation of additionai ·wetlands; purchase of ·enhancement sUpport equipment~ research; resource facili- ties; land acquisition for. habitat protection; and Inner Hylebos improvements. In addition, the State will expend $800,000 for improvements to. Wildli~e' s Clark Creek Hatchery to increase steelhead smolt proquction; the S·tate will expend and account to the Tribe for the use of those funds, within aix years· of the effective .date of the Agreement. 'l'he Port of Tacoma will provide $1,300, 0()0 to the Tribe for fisheries enhancement; $750,000 of that amount will be provided at the time that the Milwaukee fill project. is undertaken. 'fhese .funds are in addition to the $675,000 transferred· from the Port of -Document 4 - Page 1 August 27, 1988 ---PAGE BREAK--- Tacoma to the Tribe . under the .Terminal_ 3 Agreement; those funds shall be counted: as part ·of the local government contribution to the settlement. Implementation of the_ fisheries enhancement activities. and pro- grams is subject to applicable permitting requirements of Federal, State arid local agencies. In addition, the Federal government will spend $100;000 to provide navigational lights and other equipment, to reduce conflicts between Tribal ·fishing anc;l commercial shipping_ traffic in Com- mencement· Bay.. · F. .I Details of those enhancement programs and activities . with pre- . -I planned elerrtent·s are as follows: Puyallup Tribal Hatchery The State will provide funding to the Tribe to develop and operate a hatchery. Funding-will be provided for the purpos- es of completing a ground water survey on the selected site, subsequent grourid water development (if. the ground water survey indicates sufficient . ground water .availability), facility design, and equipment. The ·total . value of the hatchery is approximately $2.0 million. (Estimated value is given because cif the uncertainty of quantities of ground water available.) .Departmerit·of Wildlife Clark Creek Hatchery The State of Washington Departmettt of Wildlife will pro\7ide improvements valued at $800,000 to the Clark Creek hatchery·· for. the increased production of. steelhead · smol ts These.···.· improvements · are expected to · ilicrease the l:·nu11lber: of smol ts . released by the state into the Puyallup -watershed from· the current ;'level of ·100,000, to 200,000 ·annually ·These pro~emehts are contingent upon~ acquiring water~from ~he City of Puyallup for such purpose. The City wil~ _not unreasonably withhold water for the Clark Creek Hatchery. . 3. • Net Pen Program a. . The . State Department of Fisheries will work with the Tribe to locate anet pen rearing.site(s); ·Fisher- ies will provide technical assistance:to the Tribe, upon the Tribe's. request, _in the development of the Tribe's program. · · · · - · Oocu~ent 4 - Page 2 :August 27, 1988 . l I J I. - I . t . . L f ---PAGE BREAK--- r r r- r~ r [ L L , l L- B. b. - It is_ agreed by all. parties that the initial net pen re:aiing program- will yield approximately 200, o"oo ye~rling Coho. If thi~ level of program proves success- ful, it can be further expanded with the primary limits on the program size being the capacity of freshwat_er support facilities located within the Puyallup River Drainage. c. The Tribe and State Departments of_ Fisheries and Wildlife will jointly identify cthose potential sites which ·are biologically and environmentally sui table for net pens. The parties with permitting ·authority will use their best efforts to facilitate • the permitting of pen sites necessary to the implementation of the f'isher- ies· enhancement goals of this Agreement. It is agreed upon by all parties that the net pen program can be used to -accommqdate. a pilot program to evaluate the effects of saltwater acclimatization on _ total survival for 'zero aged fall Chinook. e. The Tribal net pen program, including facility design, construction ancr siting, facility land base and support equipment, and initial operational costs, -is estimat~d to cost $265,000. FISHERIES PROTECTION 1. Mitigation and Enhancement Measures for Specific Port of Tacoma Development Projects The Port agrees to construct specific· projects as defined . below in the manner here des~ribed and _:,to carry -out the · mitigation and enhancement measures described below. If these conditions are met, the-Tribe agrees to not oppose the related project in any federal, State,: or local permitting processes, and_-- will -not- seek- a -restraining order-- or · injunc-. tiori or otherwise seek to delay or stop construction of the projects. -In ._return,- the Port-. will abide -by the project constraints and interim procedures specifically named for · these projects. Approval- for these projects is provided as a one...:.time exception to the proce~s described in Subsection D. entitled "Resolving Conflicts Between Development and Fisher...:. ies protection." Additionally, these mitigation and enhance- ment ·measures provided by the Port- for approval of - these specific Port projects are agreed to satisfy the provisions of the Port/Tribe agreement entitled "Fisheries Resource and Habitat Protection and Enhancement Agreement." (Sea-Land Agreement) Oo~ument 4 ~ Page 3 August 27, 1988 ---PAGE BREAK--- a. Mitigation and Enhancement Measures Port Program. Contribution to Fishe-ries • .Enhancement The_· Port will provide $1,300, 000 to- the. Tribe .for its use in a broad program of fisheries enhancement as described in Section A. of this document. This payment is an enhancement measure fo~ the approved projects implemented as a part of the overall enhancement program. ( 2) ·Reduced Fill Area · and Milwaukee ·Waterway . Shallowing: . . The original plan for filling· of the Milwaukee Waterway will be reduced tO 72.5% of its surface area and the net loss of area·in ,the range of -10 to +8 fee_t will be> totally replaced. This replace- ment_ will be by creating new -intertidal. habitat through shallowing against the · remaining.- banks of the Waterway . and newly created·-· waterway end-bank. ( 3) Sitcum Waterway Erid Slope Rev:ision: " . . . · The. existing end-bank· slope of· Si t'cum Waterway is currently coriuni tted to development of new inter- tidal habitat as mitigation for TTI and Pier 7-D pier extensions. If any of this .bank·area_remains unused for· that ·purpose, the . remaining··- end-bank slope will. be ---.increased 'to · horizontal--· to 1 · vertical, provided that. such coristructiqn ·shall not-.· interfere with berthing_. spac~ . requirements and storm ·drain outfalls ' Riprapping · of,·· any newly qreated slope wi-ll be( de:sigried· to provide reason- able fisheries inteir:'tidal- zone habitat~ ' . - ~ ( 4) pier. Construe tion st.ar1dards: 0 _ _ All pier structures to· -be ;:con~·tn~cted will.· be · typical pile-pier-· rather than fill; slopes under the-piers 111 the range of -10 to +8 feet will be no steeper than 2 horizontal to 1 verti_cal. ' ' · ' . Slip 5 Shal~ow~rig: . ' . . r J l r -I [ t J 'l .l . . · . . t L ·t Expansion of the current -siip-~5 fishery mitigation l intertidal habitat site will·· be . accomplished to ·totally repla~~ the net loss of_a~eri ~n the range . Document 4 ~ Page 4 August 27,' 1988 . l ---PAGE BREAK--- c [ L f [ F [ r r f [ r L_ [ L. of -10 to +8 feet resulting from the fill of Slip Net loss of ~rea in.the range of -10 to +8 feet resulting from the Terminal 3 pier extension will be replaced at an area ratio to be determined by an· under-pier shading study to be carried out by the Port, . and not to exceed 1 acre new habitat to 1 acre pier coverage. Slip 1 Fill Slopes: Perimeter diking which will form the new channel slope along the Blair Waterway. will be no steeper than 2 horizontal to 1 vertical in the range of -10 _to +8 feet. Blair Waterway Dredging Slopes: . . The dredging of the Blair Waterway by the Port ~f Tacoma to widen and deepen the Blair Waterway will be· accomplished with slopes no steeper than 2 horizontal to 1 vertical in the range of -10 to +8 feet. Blair Waterway Bank Improvements: Many of the existing Blair Waterway banks within the intertidal range ~f ~6 to +6 feet have become overly steep and eroded to hard clay. These slopes along P6rt-owned frontages south of the Blair Waterway Bridge (outside of.· existing pier struc~ tures) will be jointly identified by the Tribe._ and Port,_-__ and . in conjun-ction· with·. Blair 'dredging project-s will be resloped. to be no steeper tl'~an 2 horizmi.tal to 1 vertical" and- riprapped ·.where necessary. ( 9) Wapato Creek Blair Waterway Outfall: The outfall structure will be lowered to·_. an eleva- tion which will allow· direct fish passage at low tides. The elevation will be determined by agree- ment between the Tribe ahd Fort considering reason- able fisheries needs and constructiori tomplexities presented at lowest tide ·ranges. As part of this project, the Port ·and Tribe will also evaluate other reasoriable r~visions·to the outlet structure which. will be accomplished with the ·towering. Document 4 - Page 5 August 27, 1988 ---PAGE BREAK--- I I , • - . . : (10) Wapato Creek ~ridging: Ent~ances which cr-oss Wapato Creek to riewly devel- oped ·Port-owned-_ properties south of East-West Road- will be constructed - as • - bridges rather than culverts. (11) Inn~r Hylebos Shallowing: - - The 'l'ribe agrees that the Port may create inter..: tidal habitat within the ~nner Hylebos property to replace the ·net loss of area in the range of ~10 to +8 feet :resulting from the·· construction of the Northeast Blair Pier, at an ar~a ratio to ~be determined by an under pier study to be carried out . by the Port, and not to exceed 1 acre· new habitat to 1 acre pier coverage. This is ~stimated to be less than 2 acres of new intertidal area. This habitat improvement_will be-accomplished-at no cost to the tribe • · The Port will work withthe Tribe.to-locate future mitigation . habitat improvemerits on the Inner Hylebos property. This .will make it possible for the Tribe to use· its fisheries- funds in · other<· areas. b. · · Staged Development: It is recognized by the parties -that the approved development projects_ will not all· be undertaken in -the same period. As an example, the Milwaukee Waterwayrnay be _filled prior to _Slip 1. _ Accordingly, the various.-.· :approved mitigation and enhancement projects are to_ be constructed to:·· coordin~ate · ·.with ~ertain -.development.· projects whem they are undertaken; ·as; follows: · Development Project Mitig~-ti:~ & Enhancem~nt E~hancement.:Funding (not aligned to· a specific - project) · Milwaukee Waterway Fill . $1,300,000'Fisheries • merit Program Enhance- Milwaukee Waterway Shallowing} Sitcum Waterway_ End-Slope Revision Document Page 6 August 27, 1988 · ---PAGE BREAK--- [ • r [ c [ r [ ! [ [ L Expansion of Port Terminal 3 · *Slip 5 Shallowing; Slip 1 Fill Slopes and Pier Construction Standards Northeast Blair Pier Habitat Inner Hylebos Shallowing Creation[ Pier Construction Standards Blair.Navigation Project; Blair Dredging ·Blair Waterway Bank Improve'- ments on Port Property, Blair Waterway Dredging Slopes Blair Bridge Removal and Replacement (or Bypass) Wapato Creek Blair Waterway Outfall Entrances Over Wapato Creek Bridge in Lieu of Culvert *If staged filliriq and construction takes place, mitigation and enhancement will be completed ~n direct proportion to the area modified by construction. . c. Timing of Enhancement Approved . Project Mitigation and The Port agrees-to schedule construction of development projects and of mitigationand enhancement measures with the objective of min1m1z1ng fisheries impacts, e.g., critical habitat availability· during ·fish migrations · . . . The Port.will work with Tribal biolog.i~ts in developing their plans.· Within th~ cost:parameters of ~~eting the area requirements, the Port . staff ·will work with the Tribal staff to maximize the-fisheries benefits from the . proposed activities and corlst:ruction design.· · The Port agrees that: All design for the mitigation project inch}d...:. ing geotechnical investigations and designs,.· and · · final plans and . speciflcations will · be . complete. before start.ofthe development project~ ( 2) Tribal representatives will be. welcomed and encouraged to closely participate throughout ·the entire design and p1arining process.· ( 3) Both. the mi tigatiori project and development project planning and construction contract specifi- cations will · include coordinated, detailed Document 4- Page 7 August 27, 1988 ---PAGE BREAK--- 2. s,cheduling and contractor constraints· to accomplish the projects with minimum impact ·to the fishery during progress of construction. All perm\ts for the mitigation project will be in hand before· any impact to the fishery results from the development project. The above-described steps will assist the Port in achieving. its commitment that the completion dates of mitigation and enhance~ent projects will be the same as the completion dates of the corresponding development projects. Approved Port of Tacoma Development.Projects a. Milwaukee Waterway Fill This project.consists of filling the waterway to create additional terminal land.. The Tribe agrees not to object to the Port filling 72.5 percent Of the Milwaukee.· Waterway and-,the Port agrees to limit dts proposed fill of the. Waterway to 72.5 percent. The Tribe agrees not to object to the use of fill material. taken from the Blair Waterway dredging . project, which will proceed simultaneously. If that material is . found to have unacceptably high contamination · as ' determined . in the. federal permitting process, cleanupland.material may be used. Included· are improvements to, be . constructed on the completed fill. This.filling project also acts as a ·disposal site for material dredged from the . Blair Waterway. As such, it is a·part of.the Blair Navigation Projec't described below and in ··oocument As part of this projectapproval, the Tribesha1l,'on the effective d9-te of ·this Agreement·, notify the u-:-s /:,Army. Corps of Engineers that the issues raised by their letter:s to the · Corps on March 1988 relating to. the scope of the F.E.I.S., and May 17, · 1988 relating to treaty rights, and any other letters s\lbrnittediri·opposition, have been resolved and are no longer to·· be considered in ·the NEPA/permit process. · b. Expansion of Terminal 3 This project ~onsists of the filling of~ Slip 1 and th~ extension of the current 'I'erminal J pier by up to 1000 feet northward. Included are the upland·· improvements necessary for the terminal expansion,,- · Document 4 - Page a· · August: 27, 1988. J I . ; . I I • J described in·Document 6. 3. General: Purpose Local Government Actions··· . ' . . . a. Introduction. The general purpose .local government parties to this document (hereinafter referred to . as · ·"local governments") and the Tribe have a common goal of proteCting and enhancing the fisheries resourc~, includ~ ing necessary habitat. At the same time, the parties ·have a common goal of providing economic opportunities for all citizens, Indian and non-Indian alike. The continued growth of the region is an essential ~ elen1ent in achieving this latter goal. In order to arrive at a proper balance between these two goals and to ensure: that both can ·be achieved,· it is important to the parties · that· the fisheries resource be_ conserved and properly managed while, at the same time, ·providing for residential, commercial,_ industrial',· and other develop- ment; nat~ral resource use; and the protection of the lives and property from fluoding. In order to ensure that fisheries resource protection and enhancement are given appropriatepriority·in their land use planning. and regulatory processes, the ·local governments and the Tribe ·agree as foliows: ( 1) ·As ·soon . as practical · following the effective dat~ of the Agreement, the local governments shall,· in consultation with the Tribe and other parties as required by law, undertake.deveilopment of a wp.ter- shed action plan/plans for · the · drainage basins · comprising Water Re$ource . Inventory Area·.· (WRIA} · #10, ·including the Commencement Bay r. ·Puyallup,.· and ·other·· basins.. The ·plan/plans shall be prepared pursuant to the requ1.irements: or the Puget Sound . Water Quality Management Plan,'· related guidelines, and other applic~ble standards: ~ ~ · . . ( · When the parties to this Agr'eement undertake the adoption or amendment of;land use or Shoreline Master Programs within.· the. 1873 Survey .Area, the consul tat ion ·process . set. forth in ·Document 7- of this Agreement shall bei utilized. . - . . b. Objectives. Wit.hin the cont'e~i. of the goals and -discussion contained in ·.the · introduction of this sec- tion, . the' follo~ing objectiv~s are set forth which a.te intended to guide the preparation of the watershed action plan/plans,· and any future ne.w or amended ·land Docum~nt 4 - Page 10 August 27,. 1988 J I I 1 I I I ·1 r l L l· I L ---PAGE BREAK--- [ [ r [ r L ;11 il I_ f l. I \ . use plans or Shoreline Master Prci~rams within the 1873 Survey Area: To protect that fisheries habitat in Commence- ment Bay and the Puyallup River Basin which is necessary for a productive fishery, while providing for other existing and future beneficial uses. J( 2) To protect water quality from significant adverse effects due to the introduction of · sedi- ments and point and non-point source pollutants originating from land developments. To preserve oi provide .streamside vegetation, as appropriate, for the· purposes of maintaining proper water temperature, m1n1m1z1ng increased sedimentation due to erosion, providing for inver- tebrate food organisms- for fish populations, and preventing loss of cover which allows fish to escape predators. To minimize alte~ation of in-stream water flows which could be harmful to fish, resulting from structures impounding water, inappropriat~ channelization of streams and rivers, and improper logging and land clearing practices. In imple- menting this objective, . the parties recognize the need to accommodate flood control facilities and activities required to protect the health, safety;· and general wellbeing ·of persons within the Puyal~ !up River· Basin. Further, for the purposes . of determining proper logging practices, the parties shall be guided by the regulations governing forest practices _ as promulgated · by- thEr Washington· State Department of Natural Resources as a result-of the recent Timber, Fish~atid Wild1if~ Agreement. To minimiz~ impacts to wetlands by implemeil.t~ ing wetland management. programs including policies, regulations, acquisition piograms, and/or other mechanisms ~s needed for wetland protection. c. Implementation of Regulatory-Controls. Subsequent to the adoption of watershed action plans, the local governments shall enact· policies, regulatory measures, educational programs, and other measures as appropriate, consistent ·with the extent of _ their authority and jurisdiction, to implement the adopted plans. · Document 4 ~ Page 11 August 27, 1988 ---PAGE BREAK--- d. ~ Other Fisheries Habitat Protection Provisions. ( ;q Flood Control and Gravel Removal Pierce County will work -with the Tribe and other participants to expand or modify the Puyallup River Basin Flood Control Study for Gravel Removal ·for Flood Control .·Purposes to include alternatives which are sensitive to habitat protection while providing necessary flood control measures. - ._Pierce County will develop standards and regulations for gravel removal which are sensitive to habitat protec- tion needs revealed by the Study, in consula- tion with the Tribe and other local· governments. I I Until implementation of ·regulations, . d:J standards,-and processes, Pierce·County·agrees to provide the Tribe copies of its applica- tions for hydraulic permits and permit renew- als in ~he Puyallup River Basin, c.oncurrent with their submittal to the washington Depart-· ment of Fisheries. · · . . . Except as set forthin-(a) and above, the removal Of.·- gravel·-. for flood. control purposes shall- .not be-. subject to·. the provi~ sions of Document 7 of this Agreement. During the interim· period, the Tribe and Pierce. ·County will work· together . in an' attempt . to make gravel removal for· flood control semsi- tive to habitat protecticfn ·.needs~-:· In addi- · - tion, in the interim, Pierce. County- agrees to comply with state - hydraulics· permits it obtains for gravel removal · · The only remedy for violations of · such permits remains . that which is set fort}) under ·(lpplicable, laws. Habitat Protecti~J1 'Pr~grarit.- Tll.e local .govern-. ments and the Tribe will . establish a program to protect fisheries habitat', to· th~ extent of their respective jurisdiction and as. appropriate' in the Puyallup River Basin,. incltidi11g theClark's Creek system, Voight Creek- system, and· South Prairie system, in accordan~e with the·objectives set forth. in b. above, to the ·extent ·of the local govern- ment's authority. Document 4 - Page 12 · August 27, 1988 I I f I J l l ·r l ---PAGE BREAK--- r. r r J L r l l. r [ r ' L. ( 3) Habitat Protection - Properties of Parties. Th~ local governments and the Tribe will establish programs pursuant to Subsections and above, to protect fisheries habitat for the respective properties . which they own and control· along the stre_ams designated in- Subparagraph ( 2) above. Such programs shall be in accordance with objectives 3 and 5 of Section b. Culverts and Floodgates Design and Operation Improvements The local governments, in cooperation with the Tribe's Fisheries Management Division, will develop designs for culverts and floodgates and guidelines for installation and' mainte-' nance which will provide for improved fish passage. The parties r~cognize that a primary purpose of culverts and floodgates is. to control flooding, and that purpose should not be impaired. It is also recognized that, at· times, culverts and floodgates act as a barrier or impediment to fish passage; It is the goal of .·the parties to balance, to the extent feasible, the ·need to provide for the adequate functioning of culverts and flood- gates as flood control devices and the rieedto allow for fish passage. The. parties agree to utilize those·designs and· guidelines when constructing and installing new structures or authorizing-such activities on rights.;..of-wq,y and _properties owned . or . controlled by the local governments and ·the Tribe in areas of the Puyal1i.tp River Basin where fish passage . is of concern~ and where such designs and guidelines are not inconsis- tent with state or Federal requirements~._· . Culverts and Floodgates - Modifications to Existing Facilities · Within one year of the effective date 6f the. Agreement, the local governments, in c6nsulta- tion with the Tribe's Fisheries Management Division, . will review all existing culverts and flbodgates in areas of the Basin which are identified as having a significant adverse Docu~ent 4 ~ Page 13 August 27, 1988 ---PAGE BREAK--- l - effect on ·.fish passage with a resultant adverse impact oh thefisheries resource, and will determine whether ·such ·structures are under the . jurisdiction of a:ny ·of the local governments. If_culverts and floodgates owned or c.ontrolled ·by a· local· government are identified as . having such a . significant · adverse impact on the fisheries resource, the Tribe and the affectecf local government will. cooperatively work to modify or. replace such structures to provide improved fish passage. One means .of financing such m6dlfications or replacements maybe utilization of the mitiga- tion and enhanc~ment program·· provided for in this document~ Other culverts and floodgates owned or . controlled by the local governments · which are identified as obstructing or imped- ing fish passage, but not impacting the fisheries resource · to the extent of those identified above~ ~Ill be brought into confor- mance, where feasible-,. with the designs. and guidelin~s at-such time as the structures need replacement due to deterioration, damage, . or other·· reason of ·diminished operability, as . determined by the local government owning or controlling the strricture. · ~nspecti6n and Maintenance The local governments will . each deve!lop and · implement an inspection and . ··maintenance. program to ensure .that their· culverts and . floodgates of concern iri"terins ·of fish passage· . are routinely inspected·. and maintained . in · accordance with ~the·_ guide"t'ines ·.established pursuant to this program. · · ~ . ( Dechlorination of· Certain Sewage· Discharges.·.·· The Tribe and the ··affected local government shall examine each existing or planned discharge . from a publicly owned treatment work, to determirtewh~ther a system to dechlorinate the discharg~ is required. If the Tribe and the affected. local. government agree that ·such syst~m is not necessary to protect the fisheries resource, it'.-shall not be required, unless otherwise ·required by law. In the everi.t the Tribe and local government party cannot agree,. the· dispute may be ··.submitted by agreement of the parties to the di~pti~e res6lution system provided Document 4 ~ Page 14 'August 27;·1988 I I ·I .l - I l t [ . L l ---PAGE BREAK--- [ r~ - I - r r r [ r l f I_ L r r l for ~n this document, and the parties shall agree oo. the standards to be utilized by the mediator or arbitrator in deciding the issue. If the parties do not agree to submit tcil, or cannot agree on the standards to be- utilized, the local governments reserve th~ right to proceed.without installing a dechlorination system and the Tribe reserves its rights under this document -to pursue other remedies. Vegetation Remoyal Agreement. The local governments will, upon the effective date of the Agree- ment, agree to be bound by the terms of the II Stipulation Re: -Vegetation Removal" entered in Puyallup Tribe _of Indians Stortini, C79-269T, u.s. District Court, Western Dis- trict of Washington at Tacoma. Habitat Protection Plan. The local gove~nments will adopt within three years of the effective date of-this Agreement, utiliz- ing the process set forth in this section, a fisheries vegetation ·habitat protection plan consistent with the objectives- enumerated- in Subsection b. A<;l.option of risheries Habitat Protection Plan,- Programs,- and Regulations for Treaty FishingRights Purposes. The Tribe and .local g-overnments agree ~n the .need - to allow_ for economic,:;" growth,. deYelopment. and flood control while providing necessary protectronof our fisheries resource. _ ±hey db not agree on the extent and scope of the --Tribe's treaty rights to protect the fisheries resource~ - - The· Tribe may review existing land use plans, regulations, and . policies. of participating- local governments, to consider if any changes -are needed to provide such protection. Afte_r;- review of these documents, the Tribe may ·submit -to_ the local governments recommendations for changes which would result in greater protection to the fisheries resource. ·The decisions as to revising their plans and re.gulations and issuing permits . remain exclu- sively within the decisibh-making authority of the Document 4 - Page 15 August 27, 1988 ---PAGE BREAK--- ' ' - participating local . governments as to non-trust lands The parties agree . that upon completion of the review and any. resulting changes made by a local government, the Tribe shall, within a reasonable period of time, provide written·notice to the local government whether such _ prov~s~ons, plans and regulations ~re satisfactory to-~he Tribe. To the extent that there is agreement, . the Tribe.~ for a period of time specified in the notice, shall not attempt to object to . or otherwise interfere with the projects which . meet these locally ado'pted standards . _ To the -.extent there is not agreement, then the -local government :will . issue permits as· provided for in its-plans and regulations, and the Tribe reserves its rights to object to such pro- jects subject only to the other terins and condi- tions of this document~ C. ACCESS TO FISHERY 1. Navigation Agreement Introduction: Purpose · and _Scope. This agreement- _by and between the Tribe, the United States, ahdthe City of -Tacoma is intended to promote the general health, safety and welfare of all parties who ~se and enjoy the waters and the harbor of Commencement Bay, particularly_ during ._the gill net fishing season;. It is the intent· of· the parties to this agreement, irt cOnsultation with the · commercial- . shipping community (represented· by the· Puget Sound Steamship Operators and the Port Angeles Pilots Association),. _the Port of Tacoma, ancl the United States Coast_Guard, pr~scribe:a;means of regulating ·vessel traffic and, in particular 1 deep-_ draft · commercial, ' vessel trafflc, there}::>y eliminating- or reducing the potential ·for problems and conflicts during :Tribal>·;gillnet fishing seasons. in the waters of Commencement Bay. ~ This _ agreement presc~ibes · a vessel traffic lane for· the movement of deep draft commercial. vessels in and out of port, · an6hoiing sites for shipi'awaiting berthing space or other- wise seeking_ safe harbor anchorage, and operation and cOinmu- nication procedures necessary for ._effect :Lve implementation. It governs navigation matters. only on those·'waters generally known as Commencement Bay 'and generally ·described as begin- ning at turning buoy "TC" as the northern boundary, and ··.running south past .Browns· Point and Point .-Defiance to the Tacoma Harbor, and ending at the mouth of .the Puyallup River Docum~nt 4 -.Page 16 ·August 27 1 -1988 f I ( I t:o:l I I I l 1 l ~ [ l l ---PAGE BREAK--- l - f r r r· i I L I [ l I · and the tidelands and inlets which comprise the general Port area and developed land$. · Nothing in this agreement shall pertain to the inlets and waterways known. as the Puyallup River, Tacoma City Waterway,· Milwaukee Waterway, Blair Waterway:, Hylebos Waterway, St. Paul Waterway, Sitcum Water- way, and Middle Waterway~ This agreement is subject .tn part to the approval of· the United States Coast Guard. Nothing in this agreement shall alter in any manner Title 72 COLREGS or the rights of the United States to enforce its laws and regulations gov~rning navigable waterways. The Coast Guard has informally communi- cated with the parties to this agreement that they wish to cooperate· with them to assure . safety· on the waterways of Commencement Bay. This agreement adequately addresses the. rights of the Tribe and its members to conduct their fishing activity within Commencement Bay reasonably free from inter- ference by shipping activities. a. Navigation Lane and Section Boundaries There shall exist ~ navigation iane -beginning at the turning buoy ~TC" (see ~ttached map):, off of Browns Point located at 122 ° 27 I 18" long. w and 47 o 19 1 30" lat. N, proceed in a straight line to Positiori lociated at 122°28 1 14" long. W and 47°18'57" lat. N. This line indicates the center- line of the first leq of.the vessel traffic lane. A r~dius of 120Q yard~ (wit~ the axis of rotation located at 122°27 1 38" long~ W and 47°18'32" lat. N) connects Position with Position to·form a continuous centerline for the vessel-traffic lane~ Beginning· at Positi~n · ioca.ted at . 122° 28' 16" long. W and 47°18'07" lat. N, proceed in a straight line to Position ~ocated at 122°26'23" long. W and 47°16'48" lat. N. This line represents the centerline of the second leg of the_vessel traffic lane. These two. ( 2) .·legs. of the vessel . traffic lane are to be· approximately 500 yards wide { 250 · · yards to each side o! the centerline): This will enable inbound and outbound deep draft vessels safe transit of th~ Tacoma Harbor. Position CN {122°26'13" long. W, 47°16'52" lat. N) and CS (122°26'27"' long·. w, 47°16'40" -lat. N) represents the apexes of · four { straight lines drawn to shore which would make up three { 3) · Document 4 -·Page 17 August 27, 1988 ---PAGE BREAK--- ' - transit sections, Section 1, Section 2 and· Sec:... · tion 3. Sectio-n 1 ·would . be designated for all traffic transiting to orfrom theHylebos or Blair· ·Waterways. Section 2 would be designated for all traffic transiting to or from t:he Sitcum or Milwau- kee Waterways. Section 3 would be designated for all traffic transiting to or from the St. Paul, Middle or City Waterway. or_· to the Grain Terminal. All legs of ihe vessel traffic lanes (TH) will be marked _ by range markers of . approved design. Sections are identified as follows: Section 1 Boundaries are: . Beginning at Position (CN), ·proceed in a straight line to Position located at 122°24'50" long. W, 47°17'19" lat. N; Beginning at Position (CS}, proceed to Position E located at 122°24'53" long. W, 47°16;42" lat. N. Line CND and Line CSE represent the boundaries ·of Section Section 2 Boundaries are:. Beginning at Positiorr. (CN), proceed in a straightline to Position located at 122°24'53" long. W, 47°16'42" lat. N Beginning at Position (CS), proceed in a straight line to Po~ition lo6ated at-122°25'46" long. W, 47°16'U." lat. No. Line CNE and Line. CSE represent the boundaries of Sectors 2. Section 3 Boundaries are: · . Beginning at Position · (CN), proceed in a straight line to Position located· at 122°25'44" long.: W,:47°l6'11" lat. N Beginning at · Position: ( CS) ~ proce.ed in a straight line to Position ;tocatedat 1.22°26'44." long. W, · 47° 16i 07" lat.. N Lfne CNF and Line DCF ·represent . the. boundaries of Sectors. 3 ,i b. Anchorage Sites During thegillnet fishing seasondescribed below, there shall be 4 anchorage sites · designated in the harbor area. ~hes~ Bites are to b~ cused for ships waiting to offload their cargo~~ awaiting -be~thing space, .or otherwise.in needof anchorage in .Commencement Bay; ··The .assignment of the four anchorage site~ shall be deter- mined by . the Tacorila Harbormaster in accordance with the following priorities: vessels awaiting a berth in Tacoma, . ( 2) vessels . which for .some reason have been required to yacate a berth in Tacoma :and are awaiting Document 4 - Page 18 August 27, 1988 • 1. . . · ' t l l ---PAGE BREAK--- r r ! l l l l. l. t l. i . ' the opportunity to r~turil to that berth, or ( 3) other such considerations as the· Harbormaster shall deem appropriate. However, no priority or discrimination . shall be made outside of the provisions set forth in .this section toward any vessel calling on_a Tribal or other Port facility. The four anchorage sites shall. each have a 500-yard radius. The center for each site is as follows: - City Waterway Anchorage Anchorage . Hylebos East Hylebos West 122°26'17" long. W, 47°16'14" lat. N 122°25'22" long. W, 47°16'48" lat. N 122°25'22" long. W 47°17'26" lat. N 122°25~43" long. W 47°17'26" lat. N The City_ Waterway, Sitcum Waterway, and Hylebos East anchorage sites may be assigned by the Harbormaster without regard to sequence or priority. However, unless extraordinary circumstances require otherwise, the Hylebos West site shall not be used until or unless the other three sites (City Waterway, Sitcum Waterway and Hylebos East), are already in use. c. -Operations and Communications The parties to t.hiis Agreement recognize that from time to time circumstances will require an evaluation_ of the terms- and condi t.ions of .t'his Agreement. · · Furthermore, the parties recognize that. some circumstances require only.·. temporary attention·, while other circumstances may require a reexaminat1on of the. terms of this agreement. 'l'herefore, all parties agree that a flexible approach to the matters of navigati6n, vessel traffic and anchoring will best meet the needs of the Tribal fisheiies arid the needs of dynamic and· growing commercial port operations, both Tribal and non-Indian, and that temporary adjust- memts to this agreement will not be unreasonably denied. To this end, the parties to· this agreement shall conduct their affairs in the fol1owing manner: On or before Jun~ 30 of e~ch year, the Tribe and the City of Tacoma shall designate an individu- al or individuals who shall be the principal Document-4 -Page 19 August 27, 1988 ---PAGE BREAK--- \I ' - authority to enforce this agreement. For the l.~ngth of the gillnet . fishing season, these . indi- . victuals shall make _themselves·' reasonably available for communication and consultation with one another . on matters relating to the terms and conditions of· this agreement. · It is understood 'that_ the tribal · gillnet fishing season depends on the migration . of the fish, and that test fishing is usually required tb determine when the season is to be opened · and precludes pre-set seasons. · When season dates are set, the Tribe shall convey that informa- tion to the parties to this Agreement, including periods ~vithin those dates. in \vhich Tribal fisher- ies. will not operate. · The dates designated for fishing will become the· official calendar for the implementation of this agreement. · The Tribe may change this calendar by giving written notice to· the Harbormaster. · · The . Tacoma Harbormaster shall be . responsible for communicating through a . ''Notice to Mariners II the official calendar to th~ va~ious parties involved in navigation and vessel traffic, . -including but not limited to: the u.s. Cdast Gua~d~ the Puget Sound Steamship Operators, the Port Angeles Pilots_ Association, the Marine Exchange, the Port of Tacoma, and such other individual~ or organizations which he shall deem necess13ry. _ . · Any vessel, or representative of_ company operating a vessel, ··of ·100-tons or more._ arriving or departing 'Tacoma Harbor between..2the begiiming and . ending dates of the'' gillnet fishirfg season 'will contact ·the Tacoma · Harbormaster -at least 3 · hours prior to arrival or departure on VH-F Gharmel 9 or. _by telephone ( 206) 591~57 33. Vessels . arriving Tacoma Harbor will · provide the following informa-:- tion: ETA ·to turning point, A (see attached· map) and-destination-Tacoma Harbor_-·(berth or anchorage).· Vessels departing Tacoma Harbor_ will. provide ···the . following information:, .vessel present be:tth or anchorage - location; intended roti:te to Position C via_ ves$el traffic lane (Section-.1,·-·2 or and time of departure. Doctiment 4 ~ Page 20 August 27, 1988 I I :I . ' I ( J t l l- l l - ' t l ---PAGE BREAK--- r- " ' r I I l [ L L L L L l d. During the fishi.ng season, shipping agents and/or owners should, if at all practicable, attempt to schedule the arrival ahd departure of their vessels in Tacoma Harbor between the hours of 0800 and 1700. ( 4) Upon receipt of notification that a vessel will be arriving or departing, the Harbormaster shall notify the representative of the Tribal fishery, to alert the Tribe to any pending vessel traffic. The Tribal representative shall then notify Tribal fishermen of such traffic and pre- scribe whatever actions are nec~ssary to clear the appropriate passage. ( 5) All vessels engaged in gillnet fishing shall display the proper navigational lights in accor- dance with Title 72 COLREGS. Upon the eff~ctive date of the Agreement, the Coast Guard in cooperation with the affected parties shall erect three marker lights which shall distinguish the centerline and the two outer legs of _the vessel traffic lane. These lights shall be illuminated during the fishing season to mark the vessel traffic lane and thereby aid those engaged in Tribal gillnet fishing to avoid the vessel . traffic lane· when ships are passing through· the lane. Notifitation of the United States· Coast Guard This agreement will be submitt.ed · to the United States Coast Guard for their information· arret ·.approval: . Upon · approval by the Coast Guard, portions of this agreement shall become part of the vessel. traffic control system (VTS). Modification This agreement may bereviewed and renegotiated upon the written request to do so by any· of the parties. Howev- · er, those portion~ which are adopted by the United States Coast Guard as a part of the vessel traffic c6ntrol system,·or 6therwise incorporafed in Coast. Guard regulations, will be subject to review and subsequent action by the Coast Guard. Docurn~nt 4 - Page 21 August 27, 1988 ---PAGE BREAK--- RT - , - \ I J OR l~.wrow . • - - - . _ _ - _ I Document 4 August Page-22 27, 1988 . I r J I I l I I -I I I l l l l l l l I L ---PAGE BREAK--- ' ' r~ - r 1 l' L L { { - l D. Fishing Site - Port of Tacoma/Milwaukee Peninsula The Port of ·Tacoma agrees to provide and maintain a one-lane gravel road. access from the E. 11th Street Puyallup River Bridge to the river mouth for Tribal fisheries access 1 and will provide emergency vehicle access through the Sea-Land site. The 12 foot wide roadway will be along· the east riverbank on Port property. Turn-around space will be provided at the mouth. The· Tribe agrees not to assert any claims for access to fishing grounds or activities on any other properties currently owned ~y the Port. RESOLVING CONFLICTS BETWEEN DEVELOPMENT AND FISHERIES PROTECTION Introduction. The parties to this. Agreement recognize that the Puyallup River and Commencement Bay and _are resources of local 1 regional and national significance. The fisheries resource of the PuyaJ lup River Basin is culturally and economically important to the Tribe; at the same time, the parties·~cknowledge the interna- tional importance of the Port of Tacoma, located at the mouth-of the River, and the regional and national significance of the. Tacoma metropolitan area as part of the urban core_ of the Pacific Northwest. 'rhe parties share a common goal of providing economic opportunities for all citizens of-the area. The continued growt-h of the region is an essential element in achieving that goal. . - It is important to the parties that resources ·.be conserved and properly n1ahaged, while providing for commercial development and natural resource use. This section sets · forth ·.procedures for resolving conflicts between fisheries resource protection and economic development. ·No party shall be bound to apply its prov1s1ons to other areas or issues, since this process was developed specifically in theconte~t.of the A~eement, and to fit the conditions in the Puyallup Basin and· Commencement Bay 1. · Scope and Applicability of Procedures . a. Area. This proced~re ~pplies to certai~ projects within the 187 3 Survey Area and Corrunertcement Bay, as that area ~s defined in Section VIII_ of the Agreement. The procedure may be applied to projects outside that· ·area if the Tribe and the developer agree to do so. b. Projects; This: procedure applies to and is re- quired of any project to be undertaken by a party to this· Agreement that will - require· the issuance of . a permit under the authority of any of the following statutes, including regulations enacted pursuant Document 4 - ·Page 23 . August 27, 1988 ---PAGE BREAK--- thereto; provided said procedure shall apply only to r tha~_. portion of the project subject to the statute: ( 1) The ~ashington Shoreline . Management Act of 1971j RCW Ch. 90.58; Section 404 of the federal Clean Water Act, 33 u.s.c. §1344; Section 10 of the Rivers and Harbors Appropri- ations Act of 1899, 33 u.s.c. §403; and ( 4) 22 u.s. c. §491, requiring the approval of. the Secretary of Transportation for the construction of bridges. · _ . The State Hydraulic Act, RCW 75.20. . ' - . . . ~ The procedure may be applied to other pr~jects in cases where the Tribe and the· developer agree to do so. . . : . It is . the intent of the ·parties that this . will be a permanent process. Accordingly 1 if the type and scope of projects requiring pe.tml ts under any of the ·statute~ . listed above are diminished, the Tribe may request anct=' ·shall receive amendments to this document that incorpo- rate the requirements of those regulations-in existence. as of the date of implementation of .,this Agreemertt. . . This procedure is not appLicable to gravel. removal and flood control activities of Pierce County See Subsec- tion J.d. of this document . for- sp?tific• provisions governing those activiti~s. Parties . . ( 1} Government. Part:ies _ The goverrun:ents that are parties to the Agreemeitt are also pc;trtles to this procedu;ral requirement._ This procedure does . not apply to. specified Por:-t · of Ta.coma projects wlth advance •as specified in Sectiorl -.IV of the AgreemeJit. This document satisfies the provisions of the portion of · tha-t '·agreement entitled· "FISHERIES ._RESOURCE AND HABITAT PROTECTION . AND ENHANCEMENT AGREEMENT" which established that Port development and_ construction projects meet acceptable stan- dards 1 contain a fisheries enhancement el!=ment 1 and . Document ~ - Page 24 August 27, 1988 ---PAGE BREAK--- F· - f I . f. r L I_ [ L_ L d. establish a mec~anis~ for resolving disputes over U10se commitments . ( 2) Other Participating Developers. This proce- dure is also available to other persons or entities where there is mutual agreement by the Tribe _ and developer to use this process. Tribe. hereto. The Puyallup Indian Tribe is a party Exclusi~ity of Procedure ( 1) In General. The parties agree that this is the exclusive procedui~ for the resolution of disputes between the · Tribe and participating developers as to project~ described above and, sJbject to the retained rights specified below, the rights and remedies of the parties are limited to those set forth in this sub-document. Specifically, the Tribe agrees not to oppose any project in any Federal, State or local permitting process, or to seek a restraining order o~ injunc- tion, or otherwise to seek ·to delay or stop con-· struction of a proje~~ for which the developer has followed and complied with the procedure and requirements imposed by this~ sub-document . . · . . . Additionally, projects utilizing and complyingwith these procedures are not subject -to the "Land • Use Matters . Land- Use _-Decision-Making" :procedures, _ standards_ or remedies pertaining to land use and ·consultation in DocumEtiit 7. ( 2) _Collateral Attack. _ is. the intent of --the parti~s tha~ the effect of this sub-document not be diminished or evaded by any means _ A participating developer agrees·- not to change its business or project identity for.the-~rimary purpose of evading its obligatioris~ The Tribe agrees not to avbid this_ process by lending direct or indirect support; financial or· otherwise, to persons 6r entities opposing a particular development- project._ Document 4 - Page 25 August 27, 1988 . . ---PAGE BREAK--- . - e. Retained Rights Tribal Rights · For any project which does not utilize this procedure, the Tribe retains ~hatever rights, remedies and ·authority ·it may have to protect . the fisheries resource and its fishing rights. The Tribe, shall not· be obligated to refrain from opposing such project in any manner, including .actions . in federal court and/or under federal, state, or local permitting procedures, to address its· concerns. . The Tribe agrees, however, ·not to attempt to exercise direct regulatory authority over non-Indians on non~trust land, including enforcement in Tribal court. Developer Rights. Any developer who does not utilize this procedure, for the reasons set forth above, retains all of its otherwise available rights, defenses and remedies with respect to such project or the property · to be utilized for the project. f. Term of . this Procedure·· Go~ernmental jaities. the Port of Tacoma. 2 0 years, except · for Pcirt of Tacoma. 50 years. Provided, thcit at the expiration of 20.years, the Port and the Tribe shall undertake a comprehensive review and ienego- tiation of this docum.ent. Any issues . unresolved after such. renegqtiaticins. shall be. submitted to. an .arbitrator or a tripartite pane( of arbitrators for .·binding·. reso'lution u.~ilizing. preeedures similar. to . those provided beiow·. :Any revisiqhs agreed upon or imposed by·. arbitration : Jnust leave in · place · a. binding dispute resolution system effective during the entire term· of •this process~-.·· · · · g. Periodic Review. The parties agree to conduct a formal review of this process every five years, or more: frequ~ntly by mutual consent, and to engage in good faith negotiations on amendments desired by ·arty party. This covenant is in . addition to the_ requirement for renegotiation between. the Port of Tacoma and the Tribe at the expiration of 20 years. Documen~ 4 ~ Page 26 August 27, 1988 f '1 1 l ' I . , c I . I i ·J · . · . · l l ---PAGE BREAK--- r-C r r r L 1 · r . f I - I- L 2 0 Review and Arbitration Procedure a. Formal Notice to Tribe:--- The developer will formal- ly request that the Tribe review the proposed project. Information concerning the nature of the project will be provided by the develop~r at a level of detail normally provided to fed~ral regulatory agencies. b. Tribal Participation in the Agency Review Process. The Tribe, in addition to other appropriate governmental units, may participate in federal, state, and/or local scoping sessions and all other joint agency sessions held pursuant to federal, state, or_ local -laws and regulations to review the proposed project. The parties shall make every reasonable effort to_ arrange mutually satisfactory times for these joint agency seeping and review sessions. ~ A developer will establish reasonable notice and oppor- tunity for the Tribe~s_partic~pation by sending certi- fied letters to the Fisheries Management Division and Law Office of the Tribe proposing a session at least 15 calendar days after the -Tribe's receipt of the letter. If the Tribal officials or staff have a conflict in attending the session, they must, within the -15-day period, provide written notice of the conflict and propose an altern~tive meeting date within 28 calendar days of the receipt of the developer's letter, or another ~utually agreed upon date. Failure of the Tribe to participate in these joint sessions after such notice will constitute its concurrence in theproposed-project for purposes of this Agreement. - . . . . . c. Formal Review_ Joint I!-roject _Revi-ew.- In addition to_ participatin9 in the ag~ncies' review process, the Tribe_ may request a joint. Tribal/Developer review to be coriunenced within 30- days after it receives notice 0 'l'he revi~w ~ill cover the project and the proposed mitiga- tion arid _ enhancement measures, with the -_intent of mufually resolving any diff~r~~ces concerning the nature of the facility, preliminary design, level of impacts to existing habitat, and acceptability of the proposed type and level of mitigation and enhancement to be provided. d. ·.Formal Objections. - If the Tribe has an objection to the proposed development- plan, or if the 'l'ribe believes that further information or studies are needed, it must state in writing th~ nature of its objections or the information sought, and deliver that statement. to DocumP.nt 4 - Page 27 August 27, 1988 ---PAGE BREAK--- the developer within 45 calendar . days following· formal notice by the develo.per·. If further information is provided, the Tribe has 15 calendar• days from the receipt Of such information or studies to file its written objections to the proposed development plan with · the developer. · . The. Tribe may ·obtain a 15-day extension of this period by notifying the developer prior to the end of the first 15-day period.· If. a binding decision is issued by a mediator that no further studies are needed, the Tribe has 15 talendar days to file its· written objections to a proposed development plan with the developer. Failure to provide a written statement. of objections within the required .time periods will constitute the Tribe's concurrence in the project. . ' - : Request for Studies. The Tribe may request studies to establish information not previously available and to evaluate the acceptability of the proposed design of the project or mitigation and enhancement measu:r:es. The Tribe and the developer should make · every effort to anticipate all study requirements and contingent study requirements, and to agree upon their. timing and se- quence. The studies required shall be · only those necessary to allow a reasonable decision concerning the design of the project a:nd appropriate mitigation ·and enhancement. Gerierally, such st~diei will be reasonable· in scope, in length of time . to conduct, in expense relative to the likely magnitude· of· 'the fisheries impact, . in benefit to be gained from such· studies, and in ·relation to the.· size and cost . of · the· development . project. · . If the necessity for. and scope. of studies is mutually agreed to between ·the . de veloper . and - the Tribe, or ordered by the mediator/arbitrator 1 the studies. will be· accomplished. ·Once the spedified · s~~dies and any contingent studies are completed, • no further ·-studies · will be required of the developer, ·unless bring .any book; record, document or ,other evidence. · Deposi- tions of any party may be ~aken in the ~ame manner and upon the. same . grounds . as provided for in the taking of .dep()sitions in the Federal Rule~ of Civil Piocedure. · The arbitrator Is award. is final and bindif1g on the parties,_exc~ptwhen: Document 4 - Page 30. · Augus~ 27, 19B8 f ; I l I I I : :J 1 l I t 'l J l t I l I l ---PAGE BREAK--- t f [ [ [ { . L L [ i. 1. ~he award was procured by fraud, corruption or other undue means; or 2. the award or the procedure by which it was issued exceeds the arbitrator's authority; or 3. arbitration was. held. without proper notice to the aggrieved party. Post...:hearing briefs,. ·if. required, shall be submitted within 14 calendar days from the final day of hearing. Written arbitration awards shall be issued within 20 calendar days :from the date of hearing or the arbitrator's receipt of post-hearing briefs, shall be short and succinct, and shall be limited to the stan- dards and criteria set out in this document. Unless otherwise agreed, such ruling shall not require. mitigation and enhancement of the developer which are more onerous than those pr6posed by the Tribe, nor less onerous than those proposed by the developer. The parties' contract with. the arbitrator(s) shall provide that a reasbnable portion of.the arbitrator's fees. will be paid only after. a decis1on is timely rendered. Unless otherwise agreed, the selected arbitrator{s) will retain continuing jurisdic...: tion to: ' . - 1 modify an award in order to correct evident miscalculation of figures or an evident mistake in the description of any· person; thing or . property referred to in the award; · · · · · 2. ~ule on issues regarding compliance with a . prior award; enhancement and mitigation credits; and penal ties, forfeitures and ~ther such remedies. - ' . Selection of the Mediator or Arbitrator ( 1) Qualifications. A mediator should have the personal characteristics and demonstrated skills Dbcu~ent 4 ~ Page 31- August 27, 1988 ---PAGE BREAK--- i . I ~ . i ' ' needed for effective mediation. That person ~preferably should be~ capable fish~ries biologist. An arbitrator should have th~ skills and expe~ience nec~ssary to hold a satisfactory.hea~ing ~nd render a· reasoned decision.·· ·While a capable fisheries . biologist is preferable, other persons who are · neutral in their perception of the issues,· such as foriller judges, environmental officials and experi,- ehced arbitrators, are acceptable. If necessary, the parties may· select or the. arbitrator may appoint .a capable fisheries biologist to assist the · arbitrator in the resolution. of factual disputes. ( 2 ) Procedure. The parties may informally · meet · . and confer to select the mediator or ·arbitrator. If agre~ment is ··not reached, ~ the party re- ques~ing mediation or arbitratibh ~hall submit to the other the name ( with needed .bio- graphical data; of one · or more qualified · persons to act as· a mediator or arbitrator.· The other. pa.rty has 10 calendar days to select a name from the list, orto propose.one or· more qualified persons (with needed bio-. graphical data) to · the oth~i; party. The · requesting party has 10 ca.lendar days to respond. Failure to respond within the 10 day period constitutes acceptance of· the other · party's proposed name agre~meht is· not teached with those . procedures, ,oel ther party , may invoke the tripartite pr6cess set.forth.in the following subsection. . . Alternatively I the parties may agree to fOrego that procedure I and either party may petition to .the · Federal .·District court for the Western District of washington, ·Southern Division, . for appointment of an arbitrator. The court Is selection shall be from a list ··of four names, , two names (with brief biographi~s) having been submitted by . each party · If a party elects to use a tripartite ·.process, then each party has 10 calendar days to selett an arbitrator, and the parties' selected arbitrators shall choose a third - Document 4 - Page 32 August 27., 1988 ---PAGE BREAK--- L L I I_ L L j . neutral arbitrator.· lf agreement cannot be. reached as to the third · arbitrator, then a petition shall be made to the Federal District Court for the appointment of an arbitrator, using the procedure in the preceding subsection. Cost Sharing for Mediation and Arbitration. The parties shall equally share the total media- tion/arbitration cost~ (including costs of a mediator who also .reriders a· bindi~g decision.) Other Provisions Selection of Study Entity~ Where the develop- er and the Tribe cannot agree as to who will conduct any additional studies, the mediator/ arbitrator will make that determination based on the following criteria: The entity should have expertise in fisheries science, including familiarity with the subject matter and geographic area of the proposed project; · The entit~ should have the personnel and equipment needed to carry out the studies in a competent~ objective; and ti~ely manner; The entity should have the ability to present the sttidyresults in a written foim in an accurate, 6bjecti~e and understandable manner; . . The e.ntitymust be willing to perform the. work for a reasonable fee; . Any work . which · the· . entity has done ·previously involving fisheries-related studies must · demonstrate that it . meets the above qualifications;. . Subject ·to the following subsection, in those cases where the- Tribe's Fisheries Management ·Di~ision has the resources and qualifications to conduct the studies, it shall be given strong consideration as the· appropriate entity, taking into account its Document 4 - Page 33 ·August 27, 1988 : . ' ---PAGE BREAK--- . ' - . - . . knowledgeof and experience with the Puyallup River watershed arid its-fisheries. · The Tribe and -the~ developer each retain the right to veto the other's~fi~st choice of study entity; if such veto is ~xe~cised, then the vetoed_ entity -will _ not be designated. ( 2) Summary of - Time Constraints. 3. · Mitigation Standards an<;l Procedures See page 45. - ' Introduction: Purpose. The parties have jointly developed standards and procedures for ·mitigation, to be applied by developers and the Tribe.- The standards include scope, design and timing criteria which incorporate the intent _of_ the parties contained in the Agreement, as well as other "performance type criteria."- "Performance type criteria" address the desired- results rather than the _means- by which they are accomplished. _ - . It is the intention of the parties to this document that future developm~nt projects within the area .defined above shall- contain mitigation elen1~nts. a. Definitions Development Plan. The term "development plan" means a comprehensive plan pertaining to mitigation and any enhancement measures, as well as those elements- of project design that will relate -to pr6tec.tion of the fisheries habitat.< Such plan must be agreed to or· spe-cified by t_he arbitratqr prior to any loss pf,habitati~and ~ust -incl~d~ the design, scope arid timfngo£ mitigation and enhance-_ ment measures,_ any -contingency plans,. standards for . 1i1easuring the plan's success· ( 1. 'performance standards),- the post-project monitoring, study and - evaluation obligatio_ils ·-of the developer,-- and - th~ specific obligations_ of.· the developer should its - plans·- fail. - · · - - -Habitat. The term -"habitat"_ means- those portions of the land- or water • which- are necessary elements of aquati~ food re~uirement~. - - - - Impact Ratio. dredge/fill project's "impact ratio" is the ratio o"f the -intertidal area ~mpacted by the developfuent to the total,intertidal Document 4 Page 34 · A~~ust 27, 1~88 ~ 1 l { l l { L I L I , I L ---PAGE BREAK--- r- r [ r ri L L ( - L I - [ I I area existing at the time of development in that F half of the bay where the proposed development would be located, and the ratio of the wetland area impacted by development. to the total wetland area existing at the time of development in that half of the bay where the proposed development would be located. · Prior to the· implementation- of the Agreement, the parties will jointly undertake, utilizing existing information, a baseline and classification study to designate existing wetlands and intertidal areas and to determine the appropri- ate line· dividing Commencement Bay into half-- ·sectors. · This study will take place as mutually ·agreed by the parties. ' Mitigation. The term "mitigation" means those projects.undertaken to provide compensation for any and "all impacts of a proposed development ori the production and habitat ·of naturally. spawning and artificially spawning stocks. b. Utilization of Criteria. ·The criteria and require- ments set forth inthis section shall be utilized: by the developer to establish proposed mitiga- tion ·and enhancement; ( 2) by the Tribe in its · evaluation of proposed mitigation ~nd enh~ncement; and ( 3) by the mediator or arbitrator in resolving disputes. c. Mitigation Replace~ertt. of Habi-tat ·.Design,_ -Timing ·and Location Goals Biological Value: · Mitigation projects must ·have the same or equivalent biological value and function ·a.s the habitat· proximately damaged or lost as a result of· the project. Timing. I 1. All ·projects. Mitigation projects must . proceed concurrently with the loss or impact of habitat' meaning that ordinarily the development· project will not result in a temporary loss of habitat Document 4 - Page 35 August 27, _1988 ---PAGE BREAK--- during critical migration periods. Mitigation projects must be completed simultaneous with completion of the development project. 2. Larger impact development projects.· As to dredge/fill projects having a greater than 1% impact ratio, the follow- ing steps will be taken, unless mitiga- tion takes place prior · to development: o All design for the mitigation project, including geotechnical investigations and designs, as well -as final plans and specifications will be complete before the start of the development project. o Tribal ±epresentatives ~ill be welcomed and encouraged to partici- pate closely ·throughout the entire design arid planning.process. o Both the mitigation project and development project planning and construction contract specifications· will include coordinated, detailed sch~duling and contractor. con- straints.-. to accomplish the project with- minimum impact ·to the fishery during the progress of> construction. ' - . - ~ o - All permitsfor the mitigation project will_ be. in ,hi:md before any impact ~to the . fishery :tesul ts from the development project.- - . . . . - - . . Area. Replacement of habitat· will be based upon area of habitat lost o:t harmed as a result of· the proposed . · project - unless a quality credit · is ··found_ to be a viable alternative. - The.· appropriate ratio of replacement habitat to area lost or harmed for each project shall be determined . by agreement of the parties or decision of·the mediator or arbitrator. Document 4 - Page 36 August 27, 1988 . t ' l J 'I t J ---PAGE BREAK--- . r· - L f [ r t r L L L f . L L ; L Location. Mitigation projects ~ust iake place in reasonably close proximity to the impac.ted or lost habitat. ( 2) Evaluation Criteria. - . The _ following consider- ations will be utilized in resolving conflicts: Value and Function. The increased or decreased biological value or function of the replacement habitat as compared to the impact- ed or lost habitat will be taken into account, as will the importance of the lost habitat to the designated fisheries resource. · A1 though the biological- productivity or functions of the replacement habitat. will be taken into consideration, it is understood that biologi- cal productivity and function are not as a general rule a substitute for area of habitat impacted; i.e., productivity is not directly interchangeable with area. The parties agree that the area requirements are of greater importance when the development project involves filling or dredging in intertidal or wetland areas, and are of lesser importance when the development project involves pier· construction or similar activity which does not eliminate the habitat. The _degree of interchangeabilit.y will be determined by this process. Risk of . Temporary ·or Permanent Loss· of Habitat. The following will be taken into account in assessing whether ·the_ mitigation will be effectiv'e: 1. The proven effectiveness 'of the · proposed mitigation measures' considering . their similarity or· dissimilari-ty to neighboring habitat, and· considering whether such _measures in the past have been implemented by _the developer or by third parties. Less risk will be associ- ated with habitat bearing similar charac- · teristics, and greater credence will be given to·measures previously implemented by the de~eloper. 2. The proposed timing of the mi tiga- tion project to the extent that- timing Document 4 - Page 37 · August 27; 1988 ---PAGE BREAK--- ( either results in a temporary loss. of· habitat or affects· the risks (upward or downward) regarding the·effectiveness'of the project;· 3. The· likelihood that the mitigation c measures will be completed on time and the probabilities generally regarding the effectiveness .~of ~itigation projects, coupled with~ · for example, ··the con tin- · gency plans and margins for error built into the mitigation .·development plan. 4. The· degr~~ of reliability in the developer's · p~st record for cofupletirtg mitigation ·.and enhancememt measures on time and correcting .any· subsequent problems. · 5. The willingn~ss of~th~ developer to assume obligations, such as those speci- fied in Subsection(~) below, whi~hwill . encourage the . timely completion of an effective .Project~ 6 . When two or more . dredge/ fill pro- · · jects haviri~ §r~ater th~n 1% impact ratio are to be constructed simultaneously and in the same half of Commencement Bayt .·the. impact, if a,ny; of such simultaneous.· construction ·may 'be considered.··. in deter- mining the risk: to·. the habitat_. ' - . .L . Project< Ih~eriti•/es. . deveioper the ~ribe may ~~ree or if ~easonable~·~h~ mediator/arbitrator may impos~, the. following' incentives to. encourage. the ,timely and. effec- . ti ve coinpletioh of .Initigat.i,on: · · · a. b. a pe:rform~r1c~ bond or other secu.r i ty or financial arrangements to offset the risks ·regarding the effective:.. ness.~f.the,project; . . . addi·tionai resource improvement. to offset the · risks regarding , . the · effe~tiv~rtess of the· project, "bankable~;to'the eitent of success · beycind ,that. · which· is required · to . . ' - ' Document ·4 -·Page·JS .August27, 1988 i 1 ; j ~ I . I I .I l .L ! I ---PAGE BREAK--- r- I - . - r ! 1 c. d. s~tisfy_ the basic mitigation and enhancement obligations ·hereunder; the retention 6f rights to addition- al suitable land to be used for mitigation, coupled with a realistic contingency plan, should iriitial mitigation measures fail;. contingency plans to fund additional enhancement measures to fully offset the negative project impact. Minimum Adjustment Factor. _When consid- eration is made of -the factors- set forth in the preceding subsections, an ass~ssm~nt sh~ll be made· of the probability of the proposed development plan meeting the requirements for mitigation and enhancement. The physical area of replacement habitat which would be required will generally be approximately 10% in order to compensate for the risks · of . failure or delay of such projects. A larger or smaller adjustment factor may be deemed appropriate after consideration of the factors set forth in the preceding subsections. Provided, however, that incremental habitat improvements attrib~table to that 10% mitigation increase, where the mitigation and the increased amount have been proven effective and result in a· net imprtivement to the habit~t, will be credited, to the extent of such net_ improvement' to the. enhancement requirements, if any. They also may be credited )tb a· mi tigafion bank~---- Remedies for Late Com~leti6n. Timeliness. Mitigation . shall be deemed timely when it is completed prior to or simultaneous· with the completion of the associated· development.- project. . A developer will avoid. an assertion of untimely completion by installing the _·mitigation prior to the construction the development project. Remedies - Wetland and Inteitidal Dredge/ Fiil. · Remedies for untimely completion of wetland · and intertidal dredge/fill projects will be agreed upon by the parties or. Docum~nt 4 ~ Page 39 August 27, 1988 ---PAGE BREAK--- ' . ~ 2. Projects with 1% to 10% impact ratio. The remedy shall be a monetary sum or the creation of additional habi- tat, as deemed appropriate 3. Projects with greater than 10% impact ratio. . The remedy shc3,ll be· the creation of additional habitat. Provided that where the late completion was due to reasons of bad .faith, ~ monetary penalty also will be ?SSessed. 4. Multiple Projects. The considera- tions expressed in Subsection above also are appli~able here. Remedies - Other Projects. In all other cases, the parties may agree to, or the arbitrator is limited to; the·_ imposition of monetary remedies for .the · late completion of projects, uniess. there is ··significant·· or lasting harm to. the :fisheries habitat. · Monetary R~nied'.i.es.: ' Al-l m~n~tary remedies: hereunder shalf be _·payable to. the Tribe to be used for fisheries.pur:poses. - ' ( 4) · Other Considerations Evaluation SpeCies. Final· design crite- rla of replacement yhabitat will be mad~ according to habitat requirements of ~ele~ted evaluation species<' · Mitigatiori "Banks~~ Mitigation banks may be created by:.' s~itabl~ measures taken . in advance of development, or by mitigation projects which improve.· the habitat, ·.to. the. extent of such improvement. Mltigati?h banks Document 4 - Page 40 August 27,. 1988 ---PAGE BREAK--- r· r - - {fij r· r r r L f - { - L L 1- r L. . d. should not -·be centralized, must be located to accommodate the needs of the fish, and should not be used to· substitute for critical habi- tat. Mitigation credits banked-previously may be used to satisfy mitigation requirements hereunder. Credits from mitigation banks_ will be used where appropriate only in close proximity to the banked project, and must perform the same or equivalent biological- value and function. Incremental Value. If it is determined that an improvement to existing habitat is entitled to ·mitigation credit, such improve- ment will receive credit only for the in- creased value and/or area created. Termination of Pollution. -Simple termi- nation of an-activity harmful to the fisheries habitat may receiv~ credit as mitigation only if the pa~ties so agree. Cleanup. The cleanup of contaminated areas not otherwise required by law, where such contamination exists as of the date of this .Agreement, · and- where the -area _otherwise would constitute sui table fisheries _habitat, or the removal of _obstructions to- fish pas- sageways, may receive credit -as mitigation. Required Analysis. IIi order to determine whether a projec!t·may go forward, and, if so, what mitigation< steps will be necessary, the evaluation of project impacts must -include an analysis of the impact of -the project on the fisheries resource -and habitat, - and related construction,-- - operation. and _ maintenance activities, ~nd timing. The .current environ- mental ba$eline ·of _the area· and use by the fisheries resource· may- be considered and placed into the context of the development and related mitigation measures. - Mitigation_Qy-Means Other Than-Habitat Replacement. Other measures which improve the fisheries ·resource may receive credit as mitigation, if determined to provide an adequate offset to the project's fishe~- ies impacts. - Document 4 - Page 41 August 27, 1988 ---PAGE BREAK--- , . - · 4. Enhancement Requirements a. Definition. The term "enhancement" means projects undertaken to increase the production of naturally spawning· or artificially propagated ~stocks, or to improve thahabitat of such stocks. Enhancement activi~ ties include, but are not limited to, acquisition, construction, and improvement· of habitat or propagation facilities, protective designation for public lands, provision of· buffer zones, or fish stocking. b. General ·Requirement. The .developer. shall be required to ·contribute to . an . enhancement project or fund, designated by mutual agreement or by the mediator/ . arbitrator, an amount equal to . 10% of the amount the developer spends on ·required mitigation measures. Alternatively, if . mutually agreed, the . developer may undertake an enhancement project, such as one of . the following: Improving substrates; the quality of · Resloping existing intertid~l areas; Creating additional wetlands;· Providing net pens; intertidal. Providing or supplementing a hatchery stocking program; ( 6) ( 7) . - . . Creating new ~pawning channels; _ . . - . : creating new coho overwintering ponds. It is the Tribe's view ·that· if· the >construction or development project is. to take place in the estuary,. items ( 1) ··through ( 5) usually will ~be the·· ~ppropriate enhancement measures. _ If the. construction or develop-· ment project is to .take place in .an upriver area,_ items through usually will be.the appropriate enhanc~­ ment measure. c. Projects Which Improve or· Increase the Habitat. 'l'he . inc~ementar· costs or ·value,_·· as appropriate, of mitigation measures that are ~roven effectivei and that produce a net improvement :or increase to the habitat, may be credited toward the . enhancement requirement set Document 4 -.Page 42" August 27, 1988 ' r· r r ( l . I - . ) i ---PAGE BREAK--- [ r~ r~ r- [ r L r r· L ! ' I. I r l forth jn the preceding·subsection, or may be banked if permitted by that subsection.· · d. DeMinimus · Impact. Notwithstanding the above., no enhancement is required for ·dredge and fill projects having.· less than a· 1% impact ratio, and · for projects where fisheries impact does riot occur because of the design and execution of the development project. e. Continuing Duties of Developer. . . tl) Responsibility for Succes~~ In all cases, the developer· is responsible for .ensuring that mitiga- tion and enhancement measures, if any, set forth in its development plan are properly implemented, that the completed measu~es operate and function as set forth in that plan, and that such measures continue to function for a reasonable period of time. What constitutes a reasonable period of time is based upon what fisheries biologists would expect for the undisturbed habitat, including naturally occurring upset conditions. In addition, the developer must perform any post-mitigation studies or evaluations_ which were specified at the time of agreement . or decision on the original d~velopment plan. ( 2) Performance Standards. Performance standards measuring the_success or failure of mitigation and enhancement projects either will be agreed upon in advance · by the parties or.·· determined by the arbi- trator. Examples of such standards are: Whether se,lected ~valuation · species, which are to be· specified iri advance • of the mitigation, · are as abundant . as · in the area replaced. Wh~ther ~ater qual~ty is at least as good as in the area replaced. Whether the fill ~at~rial used to create habitat is at least as good a quality as agreed to in project plans. Whether the amount of habitat created has· been maintained over tim~, Document 4 - Page 43 August 27, 1988 ---PAGE BREAK--- - : t: Other · Obligation of Tribe~ Whe~ ··the Tribe under...; takes development as described in Section D .l.b of this document, it will deliver notice to the planning departments of · the ·affected governmental parties. Those parties will designate one party to review the Tribe -proposed. development· plans and to enforce the requirements of this document. All procedures, standards· and requirements · stated·. herein will apply to·. the .Tribe.·. Provided, ·however, the Tribe's Blair Waterway property development is considered a preagreed project where the required _mitigation and enhanceinerit·will be accomplished-for the purposes of this Agreement by Blair Waterway · bank improvements to he carried out by the Port as a. part of the Blair Navigation project~ to stan- dards established fOr such slopes. Pier construc- tion by the Tribe· will 'be· typical· pile-pier construction and.. not fill-type construction. Slopes under the piers in the range of -10 to +8 will be no steepet than•2 horizontaL to ·1 vertical. . . . . ( 2) Habitat Repla~eme~t- - Natural and Artificial Stock. To the extent that, . in the future; the Puyallup system . is not ·.managed by the Puyallup 'l'ribe for natural.· stocks, the parties · and ·the c. arbitrator may take' that . fact into account in determining the . impOrtance pf habitat ·.·replacement where the use· of such· habitat is different. for -artificial ·stocks than,J:or.nattiral. stocks. Fishing Activity and Access. ~f:the Tribe~ as ·part of this proc~dt1re, alleges that a proposed ·project will inter.ferewith or obstruct the .\lsual ·and . accustomed fishing·· activities of its members, including access ·to usual-. and accustomeci fishing . grounds, that issu~, . _unless. resolved . in this Agreement or muttially.re~olved to the satisfaction of the •rribe and the developer, shall be submitted to the· prescribed mediation and arbitration pro- cess,: if necessary. :·:The. standard· for resolving disputes is that. a proposed. project· will ·not unreasonably obstruct or .interfere With"the usual and accus tamed fishing· activities of the Tribe or its members, a:nd will ··not unreasonably .interfere with access. to the.· Tribe's usual and accustomed - fishing grounds . . Document 4 - Page 4'4 · August 27 ,,_1988 ---PAGE BREAK--- [ r . - rt.:\ [ r r L L L L L L L L In determining . whether there is unreasonable interference with the fishing activities or access to the Tribe's · usual and . accustomed fishing grounds~ other sources of access shall be considered. g. Federal Court Jurisdiction. Subject to the exhaus- tion of the procedures specified in Section D of this docum"ent, all parties .·hereto consent to suit in the Federal District Court for the Western District 6f Washington, Southern Division, for actions seeking to enforce (but not review the merits of) decisions of mediators/arbitrator~, as well as development plan obligations and dispute resolution procedures. All. governmental parties to this 'document, including the Puyallup Indian Tribe, . agree to a limited waiver of their sovereign immunity from suit, if any, to ·the extent of the consent expressed herein. That waiver of sovereign immunity and consent to jurisdiction is limited to the following forms of relief: specific performance, or, if the court determines that specific performance is not feasible, a remedy, specified by the court which will. provide a benefit equivalent to that which was contemplated by . the parties with respect to any required performance hereunder. Document 4 - Page 45 A,.ugust 27, 19 88 ---PAGE BREAK--- Action Tribe-developer agency review Joint party review Tribal acceptance, objection, or request for further studies -Negotiations~need for studies/study entity Medi~tor/arbitrator nomination-response · Mediation~need for studies/binding decision Tribal acceptance or objection to development plan Tribal acc~pta:nce or objection to development plan Negotia~ion of plari disputes - Mediation of plan disputes Arbitration hearing Decision Suminaryof TimePeriods Set Forth- in Section Time Period (Calendar Days) 15._28 30 45 5 10 15 15 15+15 15 iS 20-30 20- Document 4 - Page 46 August 27, 1988 - Following. ~Letter proposing a meeting- Notice to-Tribe - Notice to Tribe Request for studies Receipt of ·Availability or .inedlator Decision of mediator-No studies -i1eeded C~mple:tioll of ~~studies,~ordered by mediator -or otherwise -Tribe's ·'objections Avail~'bili ty _of medi"ator - - s'eiectloh- of- arbitrator Hearing or briefs . :1 - I 1 l l l l t { l ( l t • I ---PAGE BREAK--- [ r~ [ [ r r L r I L L L L- L ' INTRODUCTION DOCUMENT 5: JOB TRAINING & PLACEMENT PROGRAM; SOCIAL & HEALTH SERVICE IMPROVEMENTS This document accompanies and is an integral part of the Agree- ment. This document describes the establishment of programs . for job· trairiing and placement, and social ,and health service improvements. A. · JOB TRAINING & DEVELOPMENT To address the long term employment and training needs of the Tri_be, the Washington State Employment Security Department, Bates Vocational/Technical Institute and the Tribal Job _Training Part- nership Act (JTPA) Office will cooperatively administer a compre- hensive program designed to serve 265 Tribal members over a £our ye~r period beginning no later than 24 months after the e£fective date of the Agrem~ent. The program will be· adininistered under the guidance of a steering committee composed of representatives from the 'l'ribe, Employment Security Department, Bates Vocational/ Technical Institute, Tacoma-Pierce County Private Industry Coun- . cil, Commencement Bay Tideland Owners Committee and private employers providing jobs to the Tribe under Section V. ·of. the Agreement. Services provided by this Agreement will include the . following major program components: · pre-employment t:r:ainirig classes, basic skills remediation,. job search wopkshopsj_ .on:-rthe-job training, vocational- training, and·. technical assistance: . for dev$lopment -.of Tribal industries. In ~ddition to the s~rvices listed above; this program will: · · · 1. Provide counseling to employers ·and to employees placed through this program, where needed;. 2. Maintain records of. the job positions filled; the identities of the Tribal members hired, the number of hours worked, and other matters related to this program; 3. Maintain q. list of employers who . are participating in this program and complying with ·the requirements of this document; . Document 5 ~ Page 1 August 27, 1988 ---PAGE BREAK--- I f - 4. Determine whether the employment ' go.;:tl is being met 1 using the standards set forth in Section B. of this document; and 5. Attempt to resolve ·concerns,· problems, and- disputes which may arise under. this program. . · The total value ·of this job training· and development program is $937 1 000. · This amount include's the one-year-. training program developed under the Terminal· 3 agreement between the Port of Tacoma and the Tribe that is valued at. $133,000. . . The elements of the program and detailed implementation provisions are: I. Pre-Employment Training Classes • . - - c All program participants will initiallybe enrolled ~in a six week · pre-employment training class conducted ·each·· quarter 1 valued at $160 I 000. The Tribe will assist iii' the recruitment of Tribal members for the c~ass (up to ·265 ·participants) The instructor ·for this class · will··~ be·. provided by Bates Vocatiortal/ Technic~l Institute On a qucirterly basis provided at· least· 12 1 but no more·_ than 15, •rribal members· enroll· into . the program. in a. given quarter. _·This ··course is_ custom ·designed to overcome the unique barriers to·_ employment ·faced by· Tribal·· members prior entry into. 'the.· labor mar]lo~erit class, all participants will ·.be . assessed for_ reading··--_. and math · skill levels. Those found to be functioning belowminimuin :t;"equire-: ments for the local market will be encouraged enroll into i co~petency-:based basic skill rem~diationp~ogram whic~will operate15 hours per_week;·up·to the_vaitie,'of $601000-for· staffing support.. PartiCipants· will ~continue to receive . .individualized instruction · until minin\um. ·.standards are achieved (estimated at :25 students. per~ yec::fr for. fouE years) . Document 5 - Page 2 August 27, ·1988 . I . l l - I ---PAGE BREAK--- ' r~ [ r r r [ r ( - L L L L L L ' -L 3. - Job Search Workshops -·and On-the~Job Training Following t}J.e pre-employment classes, participants will attend a three day job search strategy workshop , valued -at $32,000. The workshops will be offered_ quarterly by the Employment Security Department at the Tacoma Job Service Center. The workshop is designed to meet the special needs of Tribal members entering the labor ~arket. Each partici~ pant will receive assistance fromthe workshop instructor for placement in on-the-job training (60 participants) or direct placement in unsubsidized employment·· ( 30 participants) . The- on-the-job training portion of the program is valued at $260,000. An Employment Security Account Executive (AE) will work with the workshop instructor to match eligible clients to identified job openings. The. AE will work closely with private businesses in the community that agree tO provide 115 private sector jobs for Tribal members. The Employment Security Department will be responsible for placement of program enrollees in the jobs provided by the private sector. 4. Vocational Training For some pa-rticipants completing the-- pre-employment classes, vocational training may be a more appropriat~ 6ption than job search. Referrals will be mad~ for ari estimated 75 partici- pants for occupational skill_ training with local educational agencies. Occupational skill --training offered under this portion of the program is valued at $200,000. 5. Support Services and Follow-~p -All participants are eligible to' receiV'e up to_ $50 per _week while participating in_ the pre.-ei1lployment__;;_ training- classes. Payments are only made for 'hours in -at_tendance; --Other- support services - to be provided when needed to assure- full participation in program .activities or employment include child care, emergency housing, 'transportation, tools; _ food, and clothing. • _ 'l'he value _ of these S\lpport · serVices is- $140,000. -_Follow-up counseling wi'll-- occur for at least one year after placement in ·~arriploymeilt or _training. - _Counseling will be provided as necessary to resolve problems on the job, in order to- assure long term job retention. - 6. Technical Assistance One professional staff person will- be made available for a nine-month period beginning not later thail 12 months after the effective date of the Agreement; to a~si~t the Tribe in the development of potential busiitess ventures. _ The value of Document 5 - Page 3 August 27, ~988 ---PAGE BREAK--- this technical assistance is . $35,000. /Ideas for business ventures previously considered include a freeze· facility and · a chassis· manufacturing operation~ In addition, a job skills training program valued at $50,000 will·be offered _for up to 25 •rribal members to meet the specific occupational training.· needs ~or such a venture. 7. Implementation In order to effectuate this job . training. and development program," the Tribe will provide sufficient office and class- room space for· operation of the pre-employment and basic skills classes for the four-year period. Th~ Tribe will also~ provide adequate telephone service .·and access ··to normal· Office equipment for tWO Staff perSOnS 1 and Shall COOrdinate . • services.· provided under this program with· services otherwise·· provided by the Tribe's JTPA office~ 8. Audit The Tribe shall have the right to verify amounts expended - _under the job training and development program. 9. Training for Hatchery Operations . . . . The State Departments of Fisheries and Wildlife agree to work with the Tribe and the. Department· of ~mployment Security to>·· provide training to at least four Trial .·members· in the operations of fish hatcheries.·· Such training will be provid._ ed as_a part of ·the State's commitment·fOr. job •training·irtc· Section V. of the Agreement. This training will be provided within two years of the effective date· of this AgreE;!metit. · 1 A job placement program ("Job~:;Program•;)" will be irnple~~< · men ted. by the .·Employment Security ·.nepaJ:'tment·· in cooperation . . with the Tribe to provide for. placement of Tribal members. in·: jobs to match the member's skill_ anci' training~ -115 jobs for Tribal members valued_ at $2,500,000. wil·l ~be provided. by·· . private businesses in the community· with placement through·· the Employment Security Department In. addition, the private ·secto'r will provide a coordinator for .implementation of this conunitment, at. a cost of $100,000. a. Administration . : . The program will-be.jointly administered_by the.Employ""' · rnent Security Department (here~f.ter 'i'Department"J, the I I ~ l l Dbcument 5 - Page 4 August 27, 1988 l I I L . ; ---PAGE BREAK--- t r r [ r L t - I Tribal. Employment Office (hereafter "Office"), and the Commencement Bay Tideland Owners Committee (hereafter "Committee") The Employment Security Department Account Executive (hereafter and the Commencement Bay -Tideland Owners Committee · Employers · Committee Administrator (hereafter "ECA") shall meet regularly to discuss appropriate job ·positions to be made available under this program to qualified Tribal members. The AE shall coordinate job re~erral efforts with the pre- employment training class . instructor, the job search workshop instructor, the Tribe's JTPA office staff, and participants completing the job training and placement program described in Section I. The Tribal Employment Office Director (hereafter "TEOD") shall provide to the AE on a regular basis a list of qualified Tribal members who· meet minimum qualification standards ·for positions . made available by the ECA. The responsibility for providing these 115 jqbs is pladed solely on the private busln~sses in the communi- ty. ·The Department shall n()t be held responsible for providing jobs. The Department will assist the Tribe and the Committee by assuring that ·~ligible. Tribal members are referred to jobs made av13:ilable. by private businesses in the community. 2. Program Guidelines The term "Tribal members"·as used in this document shall include Tribal members and non-member spouses. It is the intent of this to de~elop full-time jobs. There will ·be an . enforceable two-year commitment for a minimumof. 2,000 hours fo:r;. ea:ch.·.job,-subject to quali- fied· Tribal members utilfzing the program and applying for. the jobs. b. The. foliowing guidelines will be used to determine· whether the goal of 115 jobs·is being met: The exten:t to which the Jobs Program is referring· a sufficient number of . applicants who meet the employers' minimum qualification standards for the positions, oh a·job~by-job basis; The extent to·which the employers ar~ provid- ing job openings for which Tribal members have the necessary skills and experience; Document 5 - Page 5 August 27, 1988 - ---PAGE BREAK--- J. ( 3) The extent to which employers are employing 9:ll?,lified applicants referred by the Jobs Program· for job openings. The extent to which Tribal members have obtained employment through_other·channels, such as other special programs, Tribal enter-: prises, and Tribal member businesses; ( 5) -The extent to which Tribal _ members who ha.ve obtained jobs through this program continue to hold those positions. c. At the end of the. two'-year commitment· period spetified abovei the p~rties . participat~ng in this program will evaluate the jobs · program and discuss whether. to continue the program in its. current or modified form. d. Notwithstanding th~ limitations· in this. document, the Committee shall provide job openings which-represent a fair cross-section of the· job market - and provide Tribal members the opportunity to· earn, ·on average,· wages. and salaries roughly conunensurate with the job market as a whole. · Program Operation r ~ f ( I ( . l I ( I a. The Tribe agrees that a Tribalmember (or a spouse of a Tribal member) must meet the following conditions . to . be . considered ·eligible to participate in the Jobs Program·: · · · · · l . The· member mu~t_.Ocbe. certifi.ed a~·-·an enroll~d. member of the Puyai1'hp.'Tndi.3.n Tribe (or spous~e ~of an enrolled member of the Tribe); . ( 2) '!'he . member . (or ' spouse) :.:must . posses$ the. - -minimum ·experience--- and skill_ qualifications ~stab~·_ lished ·by the employer. for the specific job. opportunity;. . . . . . The m~fuber (or spou~e),mu~t meet the e~ploy~ · er' s ·established· terms and conditions · of· employ- . ment; and·· ' ( 4) The member (or. spouse)·· .mu~t ·.meet the employ- er'~ established specifi~ standards for satisfacto- ry job performance .and progress . · · Document 5 Page .6 · August 27; 1988 t l ·t l t t { L ---PAGE BREAK--- r r~ r [ r r l . [ L L L L I - l_ - ! - b. Th_~ parties agree that job openings will be re- ferred and Tribal members will be . hired in accordance with t,he following terms and conditions: ( 1) Each employer agrees to refer all available job openings to the AE with a written statement of the m.tn.tmum skills, qualifications and abilities required for each job opening. · ( 2) Job openings filled from within by current · employees, and job openings filled by former employees with seniority recall . rights, and job openings which must be filled exclusively through a union hiring hall, will riot· be considered as . job openings for purposes·. of the Jobs Program. . In addition, with the mutual writte'n agreement of the employer. and the Jobs Program, other types of categories of job positi.ons may be excluded from consideration in the jobs_ program under this document. Upon rece.1v.1ng notice of a job Opening, the AE will screen the lists of available candidates provided by the TEOD, the pre-employment class instructor, the job search workshop instructor and the Tribe's JTPA office sta~f. If qualified individuals are available, the Jobs Program will .arrange for job applicatiory interviews. . . If an employer decides riot to hire an appli- cant referred by the AE, the reasons for not hiring·· wi'il be discussed on a confidential basis \vith. the Office counselor in o.rder to· e.Rhance the appli- cant's potential for employment in a· subsequent position. · · · ( 5) · Tribal. members . (or spouses) placed by this program will have. the same employee rights . and. benefits as they. would ··have if they were hired apart from this program. Tribal men1bers ·hired under this program ~hall not be discriminated · against in the terms and conditions of employment. The employers participating in the Jobs Program -agree: To provide at least 2, 000 hours of employment per job position pledged. Each job position pledge will be fulfilled after 2,000 hours of paid Document 5 - Page 7 . August 27, 1988 ---PAGE BREAK--- f { ·t . . employment have beeh credited to that position~ A . T:ribal member whg has worked 2,000 .hours shall not_; be. t'eriuinated ~ however, except for good cause · - . . . ( 2) For each Tribal member hired, there will. be a . 60 day. trial period. . If·. the member leaves the position, either voluntarily or involuntarily, .the · number of hours worked . by that· employee shall be subtracted from . the 2, 000 hours . guaranteed.· However, the private sector shall remain obligated to provide the remaining hour_~:>· , . . . ;I ] I . >I If, after that 60 day period, ·a Tribal member placed by this-program" leaves the ·position without cause or is termi11ated for.· cause, the private . sector's obligation· to provide ,that job position shall be deemed fulfilled. . Before ternlinating an employee. for cause, ari employer . must first seek· counseling from th~ Jobs P~ogram~ I I ( 4) If, after the 60 day period, a Tribal member placed by this program leaves· the position ·with cause or is terminate.d without. cause, the number of hours worked by that employee shall be subtracted from the . 2, 000 hours :guaranteed; but .the private sector shall . remain . obligated> :to provide the remaining< hours· for that position~· In order to satisfy the requirement for ·leaving with ·cause under this paragraph, the employee must first ·seek counseling from the .Office. · · · . Hours worked by< ~my .Tribal member hireci:.uncler the Interim Jobs Program .:of .1986 , shall• be· counted toward . the · hours obligated under: . this Agreemen-t. . . . . . . . · - : . . ( 6 ) · Wher~ jobs . are provided· 'flirhugh the develop~ ment of new business with the Tribe, the parties to this document, together·with the_non..;.Indian parties involved -in· such new· buf!inesses, shall·· agree ·.whether. such jobs . shall· b'e ,;~counted toward . the fulfillment of the' employment goal. 4. · Enforcement I 1 Subject to.·. the qualifications contain~d .·in ·this document, ( failure . to meet. the emplo:Yment · goal . shall constitute a violation of the Agreement which shall be remedied as provid- l . ed in that· Agreement and/or . as specified in. this document.· The Commencement Bay Tideland· Owners. Committee . wi].l assume Document 5 · Page 8 August 27, 1988 ---PAGE BREAK--- r c- r [ r r L [ r j. ~ l , b. The parties agree that job openings will be re- ferred ·-and Tribal members will be hired in accordance with the following terms and conditions: ( 1) Each employer agrees .to refer all available. job opening~ to the AE with ~ written statement rif the m.tn.tmum skills,· qualifications and abilities - required- for each job opening. ( 2) Job openings filled from within by current employees, and job operiings filled by- form~r employees with seniority recall rights, arid job openings which mtist be filled·exclus~vely through a union hiring hall, will not be- considered as job openings for purposes of the Jobs Program. In addition, with the mutual written agreement of the · employer and the ·Jobs Program, other types of categories of job positions may be ·excluded -from consideration in the jobs program under this document. Upon receiving notice_of ajob opening, the AE will screen the lists of available candidates provided by· the TEOD, the pre-employment_ class instructor, the job search wo~kshop instructor and the Tribe's JTPA office staff; - If qualified indi victuals are available, the Jobs Program_ will- arrange for job application interviews. ( 4) If an· employer decides riot_ to hire an appli- cant refe-rred by the AE, the rea sops for not hiririg · will be discussed on a confidential basis \vith th~ ' Office counselor in _order _to --enhance tha appli~ . cant's potential for•· employment: in . subsequen-t· position. · ( 5) ·Tribal members - (or - spouses)· placed by th-is program will have the same· employee - and benefits as they would have if they -were hired apart from this . program~ Tribal- >members · hired under this program shall not be discriminated against in ·the terms -and· conditions of employment._-· . c. The _employers . participating · irt ·.the Jobs _Program agree: ( 1) To p:~;ovide at least 2, 000 hours of employment · per job position pledged. Each job position pledge will be - fulfilled after 2, 000 _ hours of p~.td · Document 5 - Page 7 August 27, 1988 . ---PAGE BREAK--- ' ' employment have been credited to that position.·. A Tribal member who has worked 2,000 hours shall not be· terminated, howeve:r ~ · · except : for · good cause. . . ; . For each Tribal member hired, there will be a. 60 day trial period. · If . the member leaves the position, either-voluntarily or involuntarily, the number of hours worked. by that . employee . shall be subtracted from the· 2, 000 hours guaranteed. However, the ~rivate sector shall. remain obligated to provide the remaining hours. · ( 3) If I after that 60 day period,.·. a Tribal member placed by this programleaves the:position without cause or is terminated. for' cause~ the. private sector's obligation to provide that job position shall be deemed fulfilled. Before terminating an employee for cause, an' E!mployer must first seek counseling from the Jobs Program. · If, after the 60 day period;. a Tribal member placed by this program leaves the position with cause or is terminated without cause·, the number of hours·. worked ·by that employee shall ·be· subtracted from the 2, 000 hours guaranteed,· but ·the private sector shall · remairi obligated · to provide · the remaining hours·· for that position. In ()rder to satisfy the requirement for leaving with cause u'nder this paragraph,·· the employee. must first seek cbunseling from the Office. · · ( 5) Hours worked by al1y:Tribal ·member hired under the Interim Jobs Program of 1986. ~shall> be cqunted toward the . hours obligated under: _this Agreement. . ! ~ • - ( 6) Where jobs.· are ·provided through ·the develop- ment of new business.with'the Tribe, the parties to this document, togetherwith the non-Indian parties involved . in such . hew::·. businesses/ sha11. agree whether such jobs> shall be counted te)ward the fulfillment of the employmerrt goal Enforcement - . ~ . Subject to the . qualifications :contained in this document, failure to meet the employment· goal shall .constitute a violation of the Agreement whic~ shall be remedied as provid- ed in that Agreement and/or as~ specified in this document. The· Commencement Bay Tideland Owners Committee will . assume Document 5 - Page 8 August 27; 1988 f r I I I I I I . I - - I I t t ·l t l L ---PAGE BREAK--- ~ r [ r [ L. ( l. c. responsibility to obtain s~~ficient job opportunities to meet the goals of· Section v. B. of the Agreement and section B. 1. of this document within 24 months of. the effective date of this Agreement. SOCIAL & HEALTH SERVICE IMPROVEMENTS A. The following funds will be provided for the· capital. purposes set forth·below: CAPITAL PROJECTS 20 Bed Elder C~re Facility 20 Bed You~h Substance Abuse Facility 42 Child Day Care Center Mental Health Center Computer TOTAL CAPITAL FUNDS- Capital Projects Explanation $ 500,000 $ 500,000 $ 250,000 $ 5,000 $1,255,000' The Department. will provide $1,255,000 ·'for construction and equipment ccisLs associated with_- the._ four projects noted above. Funds will be disbursed coincident with the construe~ · tion schedul.e of the projects c3.nd must .be used or committed within 24 moriths of the effec.tive date of the Agreemeilt. The Department wiLl,. not purchase 1 donate ·or supply land for the facilities. The amounts shown are for construction and equipment. Responsibility for OWDershipj operat~on arid s~Ciffing rests solely with the Tribe~· ·.The estimated amounts.···· aie sufficient to build ~nd eqHipthesef~dilities 1 to safely· meet building code sta1~dards and appropriate car?. as reflect~ ed in State. ).icensure provisions~ < · E:xpern:litures.- above the . . pledged amounts will -be borne by the Tribe. . . - . - . . The size of the day -dare ~ehter. refl~c'ts p~rceived needs and State .-licensure _ provisions.- A forty-tw-o_ child facility. can ····handle eight infants (staff ratio at 4:1 1 .14 to~dlers (staff . ratio at 7: 1) and 20 preschoolel;'s (staff. ratio . at 10:1). A· full staff includes seven day care teachers. and orie adminis~ trator in order to staff the facility for a teh. to twelve . hour day. The computer is intended to permit the existing Tribal mental health services to tie into the State mental health computer systems, and may additionally be tised for other Tribal purposes Document 5 - Page 9 . · · August 27 1 • 1988. ---PAGE BREAK--- . · 2. The following funds will be provided for the: training purposes set,_ .forth below: TRAINING TRUST FUND. Qualified Alcoholism Counseltir Training Day Care Training Child Welfare Training Mental H~alth Training Social Service Management T~aining ' TOTAL TRAINING FUNDS TOTAL ALL FUNDS Ttaining Trust Fund Explanation $ 10,000 $ 20,000 $ 65,000 $ 22,000 $ 1olooo $ 127,000 $1,382 '000. The State ·will provide $127,000 'to fund. training, based on the expected cost over five years. Where possible, training will be provided .to 'l'ribal employees in •DSHS training pro- grams. Tribal employees (through the trust fund) will be ·charged no more than the rate charged·DSHS employees. Where DSHS does .not provide .training, the amount Th€r Sifcum Waterway is included 'in the project for maintenance· only,· as its prescribed depth is already in pl~ce. 3 . Project Costs Estimated-costs are: - Dredging and Disposal Enviromnental, Mitigation, Engineering and Administration; Dredging.and Material Placement (including a coritingency fund) . Bridge All elements (including·a contingency fund) Tota:l Project Estimated Cost $10,0QO,OOO* • • . . - . S4l,·ooo,ooo · $51, qoo, ooo *The actual costs will. be approxim~tely $13 · million. Document 6 Page 2 August 27, 1988 J I E~ I I I I I I I I I ' l \ [ l f l ---PAGE BREAK--- r r r [ { l r - 1 L l r ' : - ' Th~ additional $3 million will be paid by the Port of Tacoma. B. PROJECT FUNDING The parties to this Agreement agree that the common benefit of this project to the United States, Tribe, non-Indian: entities and the. entire community warrants its inclusion in this -.Agreement. Accomplishment of the project will be as prescribed in the follow- ing sched~le of funding and in-kind work: 1. Dredging and Disposal The Port of Tacoma will fund and accomplish all of the project dredging and dredge ~aterial placement as an in-kirid contribution to this Agreement. Although the total estimat~d . value of that work is· $13,000,000,the ·port will limit its contribution credit to - $10,000,000 for purposes of this Agreement~ 2. ·Bridge-Replacement or Bypass Funding Cash funding from this Agreement in the amount of $41,000,000 will be placed into an approp~iately established ~scrow account in the control of the Washington State Department of Transportation, with the precise limitation of its use for accomplishment of the bridge removal and replacement of the bridge or ~s a part of the bypass road p~oject. The proper use of these funds will be monitored by the U.S. ·Army Corps of Engineers or other appropriate federal g.gency for the federal government. C. ACCOMPLISHMENT OF THE PROJECT• All dredglrig and disposal will be completed by the Por-t of Tacoma using their owri funds. Demolition of -the ~as~-1lth Street bri4ge and utility relocations will be completed by -tlie Washington State Department of Transportation using the funds from.·. this Agreement held in escrow. Replacement of the_ East ·11th· Street bridge, - inCluding all elements, if the chosen optiori, will be. performed by - the Washington· State DepartrriE:mt of Transportation using the funds held in _escrow from this Agreement~· ·A bypass road project or.- portion- thereof, if the chosen option, wilL be cons.tructed by the Washington State Department of'Transportation-usingthe funds held ii1 escrow from- this Agreement~ · · D. TRIBAL INCENTIVES It is recognized by the Tribe that this project represents a broad, positive value to the _community, including Tribal . and Non-Indian interests. More specifically, Trib~l interests are~et in the following ways: Docuinent 6 Page 3 August 27, 1988. ---PAGE BREAK--- E. 1. Blair Waterway Properties Simult~neous with the "unlo6kiri~i of all othei lands along the Blair Waterway, these -valuable waterfront and maritime support lands•conveyed to the Tribe will become part of the most· desirable port development area on the West Coast.· The deepening of . the waterway and . widening ·.of the · navigation opening at the East 11th Street.· Bridge site will provide the channel with appropriate depths·and widths·to accommodate the largest· container and general cargo ·vessels anticipated by the maritime industry for the foreseeable future. . . . . - Long Term Annual Participation Payments . As a recognition of Tribal participation in the Blair Naviga- tion Project and. for the Tribe's assistance to the Port during the process of· ·permit issuance'for developments undertaken by the Port during and after the project construc- tion, the Port shall provide long termannual payments to the 'l'ribe which they can use for economic development, including development of their own facilities.· on the Blair Waterway. These payments will be provided over a 20 y~ar period start- . ing upon the date of completion. The. project elements and payment schedule will be: · · Blair Waterway East 11th· Street · Bridge Navigation opening . . Participatory payments . will begin upon. completion of replacement of the existing bridge with a 300 feet wide navigation . opening, or_.· upon completion . of permanent removal of the existing bridge· as part a, permanent bypass solution. They will Continue aimually at one year intervals thereafter through the"20th year.· Upo.n Project Completion . $50,ooo· Total payments $2,500,000. Years.··. 2 to 5 $50,000 Years·· to 10 . . Yea'rs l6to 20 $100' 000 $150,000 $200,000 per year per year .P~f year. per year to · Tribe ·over the· 20 year period BYPASS ROAD RIGHT-OF-WAY = Construction of the bypass road e1emerit. of this project requires that an elevated bridge be placed over the Puyallup River ·and a portion of the Tribal-owned land along the Puyallup River. It is agreed that the Tribe will provide land in f~e for construction Of Docu~ent 6 Page 4 August ·21, 1988 ~ [ r J r I I I I I l I .t l l l l I l. ---PAGE BREAK--- r L L L. t. l. L bridge . supports and their foundations and - easements for the . overhead crossing of the bridge structure. The Tribe will be paid just compensation for the conveyances in fee for the supports and their foundations and the easement for the elevated structu.re. Use and necessity is recognized by the Tribe. and necessary pro- gress of construction will not be delayed by the Tribe while just compensation is determined. The Tribe shall have a reversionary interest in the land occupied by the footings if such lands are no longer used for transp~rtation purposes. It is further agreed that the bridge to be constructed over Tribal lands will be designed within the following·criteria: 1. Crossing of the Puyallup Riv~r will be from and no closer than 300 feet from. the railroad bridge from the Highway 99 Bridge. 2. The required bridge right-of-way will be no greater than 150 feet normal to centerline of bridge. 3. The bridge will be elevated over Tribal lands, not requiring filling over Tribal lands. 4. Support columns and their fbundations placed on Tribal lands will be accomplished such that the land remains accessible for their fishermen under the"bridge. 5. . . If piers for bridge support are found·. to be necessary within the river, no more than two lines of supports will be constructed; such supports shall be con~truct~d parallel to the River bank. Every reasonable effort will be made during de~ign t6 locate each line_ of supports as near as possible to banks, thereby maximiz- ing the opening between. supports; · with·. one . support no · more· than 25 -feet ·from· the east· bank,. and the ·span between supports no less tnan 300 feet; . r' Doctiment 6 - Page 5 August 27, 1988 ---PAGE BREAK--- . ~ ---PAGE BREAK--- - , { , . - r· [ ( " r [ L ! [ _ I_ L. DOCUMENT 7: FUTURE GOVERNMENTAL AUTHORITY, RESPONSIBILITIES, AND -COOPERATION INTRODUCTION This document accompanies and is an integral part of -the Agree- - ment. - This document contains the _agreement among the Tribe, Pierce County, the cities of Puyallup, Fife, and Tacoma, the State of Washington, and the United States _pertaining. to factors for land.use decision-making within the1873 Survey Area;_ a procedure for consultation regarding propti~ed~land use actions and resolviri~ potential future land use and development conflicts, including future trust lands or changes in use of current trust lands; and . law enforcement cooperation. If there is any conflict between this document and the Agreement, the Agreement-controls. A. SCOPE 1. Area The consultation process applies to and is participating parties within the. 1873 Survey scribed in Section VIII of the Agreement. 'i'he p~ocess also appli~s to any l~nd proposed for status or change in use on trust property. 2. Parties required of Area as· de- consultation future _ trupt The parties to t,his document a.te the Puyallup Indian Tr'ibe, _ Pierce County, the ~ities of Fife 1 .Puyallup, and Taboma~ the~ State- ·of _Washington,: and the ,itJnited Sta'Ces. The parties agree -_·to apply- the factors -for land use decision-making, ~tilize the consultation process, .and_ enter int6 ~~ervl~~ agreements. Periodic Review ; . - ' . - The parties_ agree to conduct a formal reviewof this document ·every fiveyears, or more frequently as needed, and to engage in good_ faith negotiations in the_ event· amendments are ·des ired. by_ any p~rty. This·- document_ shall remain in full force unless the parties·_ agree in writing to an1endments as part of. the good fait,h negotiations._- Docu~ent 7 - Page 1 August 27, 1988 ---PAGE BREAK--- B. LAND USE PLANNING AND REGULATORY DECISIONS 1. Preamble The parties to this documertt,agree to consult-and discuss all ·development and revisions to th~ir respective_ land use plans. In dev~loping these plans and resolving future problems, the Tribe and general purpose local governments cities and county) agree to use the standards described .below and intergovernmental compacts in resolving . their differences. The Trib~ and the general purpose local governments agree to us~ the consultation process described in Section c. of this document as the procedure for resolving any differences or concerns over proposed plan~ or plan chang~s within the-1873 Survey Area. · Befor~ the Tribe or its members filesany tr~stland applica- tions in the future 1 or authorizes ·a substantial change in use of land in trust under Section VIII of the Agreement, the Tribe will use the consultation process-set forth in Sec~ion C. of this document 1 to allow other governments to raise concerns~ The Tribe agrees to develop a comprehensive. l.:md use 'plan -'of its 'own' within a reasonable period of time after the effec- tive date of this Agreement. The- Tribe .may adopt :by refer- ence the appropriate local government land. use plans.· The Tribe's land use plan shall address all or a· part of the 1873 Survey Area,_ consistent with Section VT!I\A. of the Agree-:- ment. The Tribe agrees not to assert the 'jurisdiction of i.ts · plan or land use regulations over non-trust lands. · . . - . ~ . - 2 -Guidelines for Evaluatin(j, _La~d_Use JThbisions Land use planning and land usy ~egulatOry: decisions made by ·the _Tribe, Pierce County, the-· cities of Fife, Puyallup, and Tacoma,· the State· of Washington,·· and -the·· United States affecting ariy property within. th~ 1873: Survey Area, as described in Section VIII. of the Agr~ement, will be made Only after consideration of community interest~,-both Indian and non-Indian. When adopting or amending·_land .use plans or- regulations within the 187 3 Survey Area~·· the· parties will utilize the land use facto.rs set forth below to guide their review and. deliberations, and· each government will give careful consideration to and will accommodate:· as many of the listed factors as possible. - Dqcument 7 - Page 2 August 27 ~ · 1988 ---PAGE BREAK--- ; i' . " .I r· r [ t L L l. L It· is recognized by the parties that, in ·evaluating and acting upon- permit applications within their jurisdiction, each"party is required to follow applicable laws, ln6luding land lise plans-and regulations. Each party will in addition tq their adopted land use plans, programs, . and regulations give ~onsideration to the following land us~ guidelines and will accommodate as many of. the listed factors as possible. However, the land use factors set forth below shall only be additional considerations to the provisions of the applicable land use plans and regulations, and shall not supersede or otherwise r~place the provisions of such plans or regula- tions. The factors to b~ considered are: a. The rteed of the Tribe and its members for increas~d larid; b. The objectives of federal Indian policy; c. The protection of established or planned residen- tial areas from uses or developments which would versely affect such residential areas. ("Planned areas, development, or uses, " as utilized in this factor and following factors, shall mean areas, developments; or uses ·provided for or pe.tmi t ted under adopt:ed land -nse. plans~ zoning regulations, land use programs, or other official actions of any participating government~); d. Protection. of the health, safety, and welfare._ of· the cmmnunity; · e · Preservatiort . of op~n spaces, which are publicly. owned and/or officially designated ·and whose intended purpose is clearly for- open space.-· Also, ·the protection Of riye.tS( Streams 1 and marine Waters, . includiJ1g· their ability to support the fisheries resource; • • I . PI;"otection of the physical environment from adverse impacts; g. Opportunity for _economic growth and diversity, consistent with the other factors set forth herein; and · ·in the location of Indian economic enterprises, the extent of ·the Tribe's economic ·base and land ·base to support economic activities; . . . h~ Piovisions for providing public facilities and services necessary to support development, such . as utilities, .tocids, public transport~tion, parks, recrea- tion facilities, and schools; · Document 7 - Page 3 · August 27, 1988 ---PAGE BREAK--- i. Avoidance of adverse effects on · existing planned development and uses. on ·adjacent lands within· surrounding neighborhoods;-·' · - and and j. Concern that land may be put into. tru.st for the primary purpose of allowing non-Indian· businesses to avoid state and local taxation, . or where the •rribe. receives no significant immediate.· benefits from the transaction; k. Of particular importance to the local governments whd are parties to this Agreement in evaluating a proposed change from fee to trust status. is the impact resulting from the removal of the land. from the local government tax rolls. · The ·local ··governments and the· Tribe will address their concerns about'the appropriate division of lands between trust and non-trust status and between •rribal and local ·governmental.· tax rolls. If these issues cannot be resolved through .later negotia- . ,tions, then. the local governmef}tS reserve the right to ~bje~t to proposed impacts of individUal parcels or the aggregate impacts of the total amount of land placed in t4e trust status, pursuant to 25 · 151 or its sti?cessor. · \ . In ·acting upon a proposal, each party.· shall take intO consideration the · other's adopted land· use plans arid regulations 1 ~rid, further, each partyreserves the riQht to use its land use plan and regule}tiohs when it applies the above guidelines to a propo!')al or wherr reviewing arid commenting upon a proposal· pursuant>. to the consultation ··process set forth in Section C of .thj,s do'cument. . . - . . . C. . . CONSULTATION FOR SUBSTANTIAL ACTIONS CONCERNING ~TRUST AND NON-TRUST LANDS . . . , 1. . Preamble . . When the Tribe or any general purpose which ·is ·a party to this docm.nent receives. an :.application for· a · permit which is defined' as "substantial ~action" in subsec- ticm 2 of this section, or itself proposes to take · a II substantial action 11 as herein defined concerning property. located within· the. 187 3 Survey Area, the issuing government agency ~ill notify the other _affected governfuent and give ari opportunity for consliltatidn and discussion~ Document 7 ~ Page 4 'August 27, 1988 ;t . . l l t ---PAGE BREAK--- - r r· t I . { f. r. L ( L L. L . . ; - L. L 2. 3. Definitions a. General purpose local governments participating in- this Agreement are Pierce Coqnty arid the cities of Fife, Puyallup, and Tacoma. . b. A '·'substantial action 11 is any regulatory action requiring a public hearing such as a rezone,. shoreline pernht, of--s~or conditional use permit, or subdi- vision, a legislative action such as the adoption of land use plans or amendments thereto, and certain environmental review actions such . as environmental impact statements related to any of· the, preceding regulatory or legislative actions, proposed dec lara-\.. tions of non-significance pursuant to the State Environ-J mental Policy Act (SEPA) Rules (WAC 197- 11340(2){ as adopted and in effect at the . time of the execution of the document. Also, any similar land use or environmen- tal actions to those noted above and any substantial change in use of tru~t or non-trust lands shall consti- tute a "substantial action~» Further~ any propbsal to pi ace lands in trust shall · constitute a 11 substantial· action." Administrative and- ministerial actions which are non- discretionary in nature ~nd: which may not· require a 1 public hearing, such as I administ§ative site plan 1 re- ! views, temporary use penni ts, buil ing permits,_ occupan- 1 1 . cy permits, enforcement orders, or short plats . are· not to be considered "substantial actiofis" for.the ptirposes of the consultation process .~et forth herein. { Procedures a. The Tribe or general .purposelocal government which receives an application for or~intendi to ~ake~a "sub- stantial action, 11 aS defined . in paragraph 2 ~ b • above 1 within· the ·1973 Survey Area will give timely notice to the other party in writing arid will transmit a sumn\ary · of _the request, a copy of the project plans, any envi- ronmental docu~ents~·and any other pertinent· information filed in conjunction with the application. · b. The Tribe or th~ general purpose lo~al governfuent, taking or responsible for approving the "substantial action;» will provide an opportunity for written and/or oral comment by the other party, consistent with estab.,.. lished land use, permit ·and· environmental· review proce- dures. The Tribe and local government will make Document 7 - Page 5 August 27, 1988 ---PAGE BREAK--- ( . . ~ . available appropriate representatives to discus's concerns or-questions. raised by the other·entity. any c. The Tribe or_ the general purpose lodal government will make good faith efforts-to accommodate the concerns of the other party in rendering ·its decision~ consistent with the adopted plans, programs, and legal standards - governing the decision. Ih each case where an objection is filed and this consultation process is invoked, the 'decision-maker will entet~a decision in 'writing setting forth the reasons for the decision and explaining the evaluation of all relevant factors. d. To the extent a decision is adverse to an objecting entity, thedecision-maker.will.explain in the decision why an adverse decision was necessary and will set forth any restridtioris or conditions intended to minimize the . . < ? adverse impact on the objecting entity. ~i •rhe local governments have no duty to provide services to trust lands unless the-Tribe or its members reqtiest such services, and there a mutually satisfac- tory agreement regarding payment for such serv lees. f. As provided in Secti~~-VIII.B. of the'Agreement for the future placement of lands intrtistandio~ changes ln the use of existing trust _ lancts, the Secretar~ of Interior shall _comply with _applicable federal law, regulations and procedures. The Tribe. shall notify_ the:_other parties~ of the decision of the Secretary as to requests f{)r the acquisi~ion of land in trcist Status. This doctiment does not limit wha,tever Jtirisdi_c,tion' the· appropriate court would-·: otherwise· have to review the merits of_ a decision in -cases- filed pursuant tO·sectlon -XI _ of. the Agreement. _ Further, . the··_ parties - retain . whatever authority they would- otherwise have: to bring su-it in Federal·. court to remedy violations _of_ .Federal law which are independent of· this ; docuritent. · In addi- tion, :the parties retain whatever ·authority they would otherwise ·have to file suit .in the State, local or T~ibal courts to remedy violations··-- of State, l~cal or .Tribal law; - Proposals that _ are subject· to. the·- fisheries ·dispute\ resolution procedure set ---forth in • Document 4 to the; I Document 7 - Page 6 ' August 27, 1988 I . ' ' ' :J I l :t L ---PAGE BREAK--- r r. I l . • L L L. l - L L ' ( D. Agreement shall not_ be subject to the consultation process set forth herein. Ori the fifth (5th) year following the effective date of this Agreement the participating local governments and the Tribe shall review how the system for placing new lands in trust has worked. To the extent that any party determines the system is not working~ it will suggest changes and attempt to reach agreement with the other parties. The 'l'ribe ·and the local governments reserve the right to propose changes in the federal process for placing lands in trust,· .in the ,event there is no agreement. LAW ENFORCEMENT· In order to exercise the highest degree of cooperation, the Puyallup Indian Tribe and the State and ~its political subdivi- sions, through their respective law enforcement authorities, .agree to the following program: 1. The Puyallup Tribal police will be ~rima~ily responsible for law enforcement over Tribal members on trust land~ in the 187 3 Survey area. Local and state police agencies shall be. primarily responsible for law enforcement over non-Tribal members and on non-trust lands, aspresently provided_by law. . . 2. Each jurisdiction is responsible for its own criminal investigations, pursuit of alleged ·.criminals, and arrests, and for all. liability or.· damage arising from incidents or. actions involving its officers~ whether or not the authority being exercised. is that of the employing. jurisdiction or of . other. jurisdictions under deputization ~ '!'he · erriplo.yirig · jurisdiction will • hold . harmless· other jurisdictions_. whose· authority is being exercised by officer. 3. . All parties agree to minimize· j~risdictional disputes by formal and informal consultation onmatters of mutual inter-. est. Specific jurisdictional problems shall -be the subject·· of continuing and regular consultations.· · · 4. When investigations, h6t pursuit, or potential arrests might. involve a jurisdictioncH dispute, police activities shall be guided by the followingi When the criminal investigation, pursuit., or potential arrest is not time-sensitive, the. involved police agency shall consult with the appropriate nther police agencies in. order to determine which agency has Document 7 - Page 7 August 27 1 1988 ---PAGE BREAK--- jurisdiction, which court should arraign any suspect, and other matters; and When time is 6£ the ess.erice to· stop a crime in progress, to prevent injury to person or .damage to property, or to apprehend suspects, the police.· agency involved shall notify immediat.ely the appropriate counterpart ·police agencies a:nd shall take only such steps necessary to prevent injury or,damage or·to arrest criminal suspects~ · 5 Each jur;isdiction may agree to limited, reciprocal cross-deputization of Tribal police and non-Indian police when necessary to carry out the law enforcement functions described herein. · : . Further, the various police agencies, _·the· Puyallup Indian Tribe, and the local governments agree to facilitate partici- pation . of the respective police agencies in any local or Tribal training programs. Document 7 - Page 8 August 27, 198[ . ~ ~ ' ( i I I