May 25, 2000

KITTITAS COUNTY WATER PURVEYORS

Item 1: Call to order

Pat Clerf declared the agenda for the May 25, 2000 meeting approved as presented. The minutes of the March 30, 2000 meeting were approved as presented.

Item 2: NMFS Approaches To Recovery; Dr. Kate Vandemoer, NMFS, Mid-Columbia Recovery Coordinator.

Dr. Vandemoer expressed her appreciation for the opportunity and quality of the tour held prior to the meeting. Dr. Vandemoer explained came to NMFS in October, 1999 from the Interior Department and her background is in geology and hydrology. Dr. Vandemoer further explained her position with NMFS is Mid-Columbia Area Coordinator/Recovery Planning Coordinator explaining Recovery Planning is a formal procedure under the endangered species act and her goal is to pull together conservation activities that are in place and work through the mechanics of the ESA. Dr. Vandemoer explained she will address questions on "where is NMFS going". Dr. Vandemoer explained NMFS is heading towards recovery and getting the fish off the endangered species list. Dr. Vandemoer explained no one has a vision of what recovery will look like in terms of numbers explaining you cannot tag any one particular thing to the number of fish here because there are dams, fishermen, seals, and ocean trollers in between and if the numbers are here this year and not next year what would that mean in terms of recovery. Dr. Vandemoer acknowledged it is a difficult issue to talk about as the agricultural community is feeling a lot of pressure now from people saying it is your fault as well as people saying now it is up to you. Properly Function Condition is a condition in which there is a persistence of habitat forming processes. In a watershed, properly functioning condition, the water runs of and peaks and low flows are maintained and they are within their natural variability which means restoring habitat forming processes; enough of the right sediment in the right place in the stream and the right size of the sediment, enough water in the stream, temperature control in the stream, not pristine conditions or returning to predevelopment or pre-settlement scenario, maintaining the spring freshets that move the fish out when they need it. Dr. Vandemoer explained if there are large fields with excessive runoff it is bad for the farmer and fish. Properly Functioning Condition is not just related to fish but to the whole health of the soil and Eco system. Dr. Vandemoer agrees that it sounds idealistic and pie in the sky and perhaps properly functioning condition is because there are irrigation ditches, systems and structures with the challenge to marry the two. Dr. Vandemoer discussed the properly functioning condition in the urban environment explaining the hydrologic cycle in the urban environment is out of control and you work with the conditions like the water running off the parking lots and create open spaces for filtering the water before it gets back to the stream making it a long term project. Dr. Vandemoer explained there are many theoretical papers on what the viable salmonid population is and how you get there but cautioned they are theories. Dr. Vandemoer explained her view, and a fair representative of NMFS, is to reach properly functioning condition and once you get there recovery will begin to happen. Dr. Vandemoer explained the whole conservation burden should not be the responsibility of the irrigation community and her job with NMFS is to work with private landowners. Dr. Vandemoer discussed the designation of critical habitat in the Kittitas Valley and where to go from here. Dr. Vandemoer explained properly functioning conditions in the Kittitas Valley which means doing what you can to restore the habitat explaining she saw a lot of good stuff on the tour today. Dr. Vandemoer explained she has an open mind in a lot of ways and here you can do what you can do and if you can provide a home for the fish if they can get back here what more can one ask because the numbers are related to so many other different things.

Dr. Vandemoer explained the 4(d) Rules for Steelhead and Chinook are coming out on June 19^th with an effective date of August 19^th for Steelhead and an estimated effective date of December 1999 for Chinook. Dr. Vandemoer explained Section 10 Habitat Conservation Plan Option is for pursuing conservation activities

Dr. Vandemoer explained The Endangered Species act has 18 sections; Section 7, which applies to Federal Agencies; Section 4(d), which applies to threatened species, and Section 10, which is a Habitat Conservation Plan. These are tool by which local governments, entities and individuals can assure the activities they conduct are consistent with the Endangered Species Act. Section 7 is the big one and applies to Federal Agencies; Congress said Federal Agencies have an affirmative responsibility to make sure their activities do not reduce the likelihood that the species will survive and recover. Dr. Vandemoer explained there are arguments and interpretations but one could argue that Federal Agencies are required to recover the salmon but the obligation requires that any federal action; permit, federally funded program, federal ditch/culvert replacement, any federal action that may impact salmonids requires consultation with Fisheries Services, U.S. Fish & Wildlife Service or NMFS. When a federal action can come to the conclusion of jeopardy in which they conclude the federal activity is going to reduce the likelihood of survival, reasonable and prudent alternative must be developed. If the Federal Agency does not feel its activity is going to have an impact, NMFS does not have to be informed. Dr. Vandemoer explained Section 7 is a good tool with the down side being it takes a great deal of time, the up side is if money is a factor you can get the federal agency to provide the technical expertise you need to go through the agencies. NMFS is swamped with Section 7.

Section 4(d) Threatened Species requires development of protective regulations and that is what was done for a number of Salmon and Steelhead in December, 1999. The new part of 4(d) opens up the door for local entities to come forward with their plans to have them verified/certified as sufficiently protective of salmon. The current 4(d) Rule has 12 programs that have been adopted as sufficiently protective.

The only program for irrigation is the requirement for screening and the screening has to be done according to NMFS criteria, which match Washington and Oregon criteria. There is nothing in the 4(d) Rule that embraces agriculture and its protected practices and says they are OK for the Endangered Species Act. Discussions are currently going on in the AFW with the possibility Ag. Fish Water could go 4(d) with agricultural practices worked out between the AFW and NMFS could end up in a 4(d) Rule. Dr. Vandemoer explained she believes there may be a placeholder in the current 4(d) Rule for the AFW discussions. Dr. Vandemoer explained she has recently been invited into the AFW discussions. She is currently working with three counties on wheat, cattle and hay with the concept of creating a 4(d) umbrella with the idea to pull in all the NRCS programs, on farm programs, planning process and pull them all under a 4D umbrella with the goal of getting them all approved and essentially add what is needed for fish and NRCS Practices. She is also taking Bonneville Power Administration Programs for habitat restoration and putting them under this 4(d) umbrella with the idea that any farmer that signs up with the NRCS Program and implements those practices according to specifications has complete ESA Coverage and NMFS will go into court with you on that.

Dr. Vandemoer presented information on the AFW activity regarding irrigation and the Field Office Technical Guides process explaining the Oregon process is stepping back and starting with a 9 step planning process if you have the right check list and if not adding additional stuff for fish and practices are reviewed for how they impact fish and if other practices are needed or adjustments required. Not all FOTGs are reviewed, only the ones where flags come up related to fish which is a different approach. In Oregon NMFS is starting with the fundamental value on agriculture with the primary goal to keep agriculture alive and functioning and not merely surviving but thriving and to also bring the fish back. The goal is the same in that a soil erosion problem on a farm is a problem for the farmer and a problem for the fish. Dr. Vandemoer believes NMFS has set aside an ambitious time frame and hopes to have a draft of the 4(d) Rule in 6 months and to submit it for publication within a year.

Dr. Vandemoer explained Section 10 is the Habitat Conservation Plan option and is called incidental take. Section 10 says you activity is legal and it incidentally results in the take of fish. The applicant in Section 10 is applying for an incidental take permit. The Habitat Conservation Plan is a plan to conserve the habitat. The permit terms are as long as 50 years and as long as you are in the habitat conservation plan and are doing those activities in the plan you are covered and cannot be sued by a third party unless you violate the plan.

Dr. Vandemoer explained NMFS asks federal agencies to identify the status of the fish, what factors have caused the decline in the region, what activities the agency is going to do mitigate, minimize or eliminate the take and how they are going to monitor it. Dr. Vandemoer explained this is what NMFS would ask an individual or collective basis to do. Dr. Vandemoer explained NMFS goal is not to destroy agriculture their goal is to keep it alive and NMFS believes the process will identify the big issue; funding; they cannot break backs or create a new class of victims to fix the other class of victims. NMFS thinks providing funds will lessen the time needed and put the burden back on federal agencies first to deliver what they want and where they will see it and realize that this is a long complex process with a lot of cultural, social and economic factors that must be included and that figuring that out will help identify the large scale funds needed.

Dr. Vandemoer addressed a question regarding what would happen with a change in administration explaining she felt ESA will not go away and believes the process will slow down or the process may become more user friendly.

Dr. Vandemoer addressed a question regarding what happened in Okanogan County explaining it is on the record as being a train wreck and what happened there was using a Section 7 hook to get at private users. The good coming out of Okanagon County is that NMFS has been told what standards they must pursue if they are going to enforce on anybody and those standards are pretty severe with the likelihood of another Methow is rapidly diminishing and simply is not a way to go.

Dr. Vandemoer explained she would like to highlight every conservation activity that is ongoing now in the Mid Columbia area and wants no enforcement actions taken on people she is in discussions with. She stated she does not see any enforcement plans within the next year and unless NMFS sees a dead fish and can directly tie it to a specific person they have no case. Dr. Vandemoer continued explaining habitat modification is a problem but it is difficult to tie one person’s habitat modification to a dead fish somewhere else as it is cumulative and requires strong proof. NMFS is much more interested in talking first and not ending in another Okanogan County.

Dr. Vandemoer addressed the local NMFS staffing, explaining Dale Bambrick has been hired for Washington State as of May 22^nd and will be working with three additional staff. The office will be based out of Ellensburg.

Dr. Vandemoer addressed a question of when an individual can be sued explaining no written document offering protection during the talking process explaining "prosecutorial" discretion can be enacted. Dr. Vandemoer addressed a question regarding third party lawsuits explaining if you are in an endangered ESU you are at risk right now for unscreened diversion and dewatering of a stream; in threatened species August 20^{th is} the critical date for unscreened diversions, willful taking of salmon is touch and go. Dr. Vandemoer further explained if there is a plan and are currently working with NMFS or working with the AFW process NMFS would go to court with you.

Dr. Vandemoer addressed a question regarding Kittitas County developing their own recovery plan explaining the option is always there and NMFS would make staff time available to assist and would offer qualified coverage. It is conceivable to have a Kittitas County Salmon Recovery Plan that would meet the 4(d) Rule and being located at the top of the watershed makes a lot of sense.

Dr. Vandemoer addressed a question regarding responsibility for irrigation water delivered by a District to a landowner and who would be responsible if water with a lot of silt is returning to a stream. Dr. Vandemoer explained all the liability would be with the landowner if the District delivered the right amount of water and the landowner uses the water wrong the landowner would be liable.

Dr. Vandemoer addressed a question regarding screening explaining screens sized to protect all life stages of fish is a bare bones essential and a real simple enforcement issue for NMFS.

Dr. Vandemoer addressed the need for local control explaining there is no incentive for conservation and state water agencies need to deal with this.

Dr. Vandemoer addressed the authority she has within NMFS explaining enforcement people talk with the area coordinator for guidance on where to go enforce and administrative people talk with the area coordinator on where there are promising opportunities for conservation, policy people talk with area coordinators when issues need to be elevated above the local field person or state director or others. The area coordinator has a lot of discretion mainly because of the amount of information. The area coordinator can enter into discussions on 4(d) Rule and initiate the discussion and facilitate the frame work and get the NMFS personnel to meet your needs provide appropriate field personnel. Dr. Vandemoer explained she reports to the Assistant Regional Administrator for Protective Resources Division, Donna Darm, and works in three states. Her specific goal for the next year is to produce an atlas of conservation practices in the Mid Columbia ESU with a 5 year goal of saying the Mid Columbia ESU is on track with programs going in every tributary.

Dr. Vandemoer addressed a question on Section 7 coverage of irrigation districts and private entities as it relates to the Bureau of Reclamation explaining she believes they will probably be covered for water delivery if the water is delivered according to the rights and the diversions are screened.

Dr. Vandemoer explained from the land and an economics perspective it is not an acceptable solution to kill farming to conserve salmon.

Carol Ready presented the draft Mission and Objectives Statement and requested input be submitted to her in the next two weeks so it can be presented for approval at the next KCWP meeting. Carol further explained this will be published in a KCWP brochure.

Item 4. KCWP Activities Update

Carol Ready presented logo and letterhead samples for the Kittitas County Water Purveyors and requested input. Carol distributed copies of "The Ditch Line". Roger Satnik presented information from the March, April and May water quality samples explaining there are areas in violation of the standards in fecal coliform and E. coli. Roger further explained the source of the violation, in the areas of violation, needs to be determined. Carol explained she is organizing a water quality sampling meeting to discuss techniques and water quality sampling.

Item 5. Pat Monk, Joint Board Fish Biologist, Fish Counts

Pat Monk discussed the fish counts this year explaining there have been in excess of 13,000 spring Chinook salmon counted at the Pasco counting station with over 5,000 counted above Roza. Pat continued explaining this is the highest count in the last decade with various speculations as to why the count is up.

Item 6. Meeting Schedule

Chairman Pat Clerf announced the next meeting is scheduled for July 27, 2000 with the time to be announced.

All Business having been concluded the meeting adjourned.

Respectfully Submitted,

Pat Clerf, Chairman