2008 Columbia Basin Fish Accords Memorandum of Agreement between the Three Treaty Tribes and FCRPS Action Agencies 3 TREATY TRIBES-ACTION AGENCY AGREEMENT TABLE OF CONTENTS Section Page I. INTRODUCTION .................................................................................................................. 1 II. HYDRO COMMITMENTS ................................................................................................... 2 A. Hydro Performance ....................................................................................................... 2 A.1. Performance Standards, Targets, and Metrics: .................................................... 2 A.2. Performance and Adaptive Management: ............................................................ 2 A.3. Research, Monitoring, and Evaluation. ................................................................ 3 B. Spring spill/transport ..................................................................................................... 3 C. Summer spill ................................................................................................................. 4 D. Monitoring and Verification; Fish Passage Center ....................................................... 5 E. Spring Creek Hatchery Releases ................................................................................... 5 F. Status of the Lyon’s Ferry production program ............................................................ 5 G. Flow Actions (including flow surrogates) .................................................................... 6 H. Lamprey protection ....................................................................................................... 6 I. Emergency Operations for Unlisted Fish ...................................................................... 9 III. HABITAT AND HATCHERY COMMITMENTS.............................................................. 10 A. BPA Funding for Habitat and other Non-Hatchery Actions ....................................... 10 A.1 General Principles: ............................................................................................. 10 A.2. Types of Projects: .............................................................................................. 10 A.3. Expense Projects: ............................................................................................... 11 A.4. Non-Hatchery Capital Projects: ......................................................................... 11 B. Funding for Hatchery Actions .................................................................................... 12 B.1. General Principles: ............................................................................................. 12 B.2. Expense and Capital Hatchery Actions: ............................................................ 12 B.3. John Day Dam and The Dalles Dam Mitigation: ............................................... 13 B.4. Implementation Sequence: ................................................................................. 14 C. General Provisions For All Projects ........................................................................... 14 D. Council and ISRP Review .......................................................................................... 15 D.1. General principles: ............................................................................................. 15 D.2. ISRP review of projects implemented pursuant to this Agreement: .................. 15 E. Replacement Projects and Adaptive Management ..................................................... 16 E.1. General Principles: ............................................................................................. 16 E.2. Replacement Projects: ........................................................................................ 17 E.3. Adaptive Management ....................................................................................... 17 F. Inflation, Ramp Up, Planning v. Actuals, Carry-over: ............................................... 17 F.1. Inflation: ............................................................................................................. 17 F.2. Treatment of Ramp-up of new/expanded work: ................................................ 17 F.3. Assumptions regarding Planning versus Actuals: .............................................. 17 F.4. Unspent funds, and pre-scheduling/rescheduling: ............................................. 18 G. Compliance with the in lieu provision of the Northwest Power Act .......................... 18 IV. FORBEARANCE, WITHDRAWAL, AND DISPUTE RESOLUTION ............................ 19 A. Forbearance ................................................................................................................. 19 iii 3 TREATY TRIBES-ACTION AGENCY AGREEMENT B. Affirmation of Adequacy ............................................................................................ 21 C. Council Program Amendment Process ....................................................................... 22 D. Good Faith Implementation and Support .................................................................... 23 E. Changed Circumstances, Renegotiation/Modification, Withdrawal .......................... 24 F. Dispute Resolution ...................................................................................................... 26 F.1. Negotiation ......................................................................................................... 26 F.2. Mediation ........................................................................................................... 26 G. Modification ................................................................................................................ 26 V. MISCELLANEOUS PROVISIONS ..................................................................................... 27 A. Term of Agreement ..................................................................................................... 27 B. Applicable Law ........................................................................................................... 27 C. Authority ..................................................................................................................... 27 D. Consistency with Trust and Treaty Rights .................................................................. 27 E. Effective Date & Counterparts .................................................................................... 27 F. Binding Effect ............................................................................................................. 28 I. Waiver, Force Majeure, Availability of Funds ........................................................... 28 J. Notice. ......................................................................................................................... 28 K. List of Attachments ..................................................................................................... 30 iv 3 TREATY TRIBES-ACTION AGENCY AGREEMENT MEMORANDUM OF AGREEMENT AMONG THE UMATILLA, WARM SPRINGS AND YAKAMA TRIBES, BONNEVILLE POWER ADMINISTRATION, U.S. ARMY CORPS OF ENGINEERS, AND U.S. BUREAU OF RECLAMATION I. INTRODUCTION The Bonneville Power Administration (BPA), the U.S. Army Corps of Engineers (Corps) and the U.S. Bureau of Reclamation (Reclamation)( the “Action Agencies”) and the Confederated Tribes of the Warm Springs Reservation of Oregon, the Confederated Tribes of the Umatilla Indian Reservation, the Confederated Tribes and Bands of the Yakama Nation, and the Columbia River Inter-Tribal Fish Commission (CRITFC) (“the Tribes” or “the Treaty Tribes”) (collectively “the Parties”) have developed this Memorandum of Agreement (“Agreement” or “MOA”) through good faith negotiations. This Agreement addresses direct and indirect effects of construction, inundation, operation and maintenance of the Federal Columbia River Power System1 and Reclamation’s Upper Snake River Projects,2 on fish resources of the Columbia River Basin.3 The Action Agencies and the Tribes intend that this Agreement provide benefits to all the Parties. Reasons for this Agreement include the following: • To resolve issues between the Parties regarding the Action Agencies’ compliance with the Endangered Species Act (“ESA”) regarding these FCRPS and Upper Snake Projects; • To resolve issues between the Parties regarding compliance with the Pacific Northwest Electric Power Planning and Conservation Act (“NWPA”) and the Clean Water Act (“CWA”); • To address the Parties’ mutual concerns for certainty and stability in the funding and implementation of projects for the benefit of fish affected by the FCRPS and Upper Snake Projects, affirming and adding to the actions proposed in the draft FCRPS and Upper Snake Biological Opinions; and • To foster a cooperative and partnership-like relationship in implementation of the mutual commitments in this Agreement. 1 For purposes of this Agreement, the FCRPS comprises 14 Federal multipurpose hydropower projects. The 12 projects operated and maintained by the Corps are: Bonneville, the Dalles, John Day, McNary, Chief Joseph, Albeni Falls, Libby, Ice Harbor, Lower Monumental, Little Goose, Lower Granite, and Dworshak dams. Reclamation operates and maintains the following FCRPS projects: Hungry Horse Project and Columbia Basin Project, which includes Grand Coulee Dam. 2 The Upper Snake River Projects (Upper Snake) are Minidoka, Palisades, Michaud Flats, Ririe, Little Wood River, Boise, Lucky Peak, Mann Creek, Owyhee, Vale, Burnt River and Baker. 3 This Agreement does not comprehensively address impacts to wildlife from the construction and operations of the FCRPS and Upper Snake Projects. See Section IV terms related to wildlife. 1 3 TREATY TRIBES-ACTION AGENCY AGREEMENT II. HYDRO COMMITMENTS A. Hydro Performance A.1. Performance Standards, Targets, and Metrics: The Tribes concur in the use of the hydro performance standards, targets, and metrics as described in the Main Report, Section 2.1.2.2 of the Action Agencies’ August 2007 Biological Assessment (pages 2-3 through 2-6) and the draft FCRPS BiOp at RPA No. 51 (pages 63-64 of 85). Provided that, the Tribes and their representatives may recommend to the Action Agencies actions that may exceed performance standards, which will be considered and may be implemented at the discretion of the Action Agencies. A.2. Performance and Adaptive Management: The Parties agree that the BiOps will employ an adaptive management approach, including reporting and diagnosis, as described in Section 2.1 of the Biological Assessment. The Parties agree that if biological or project performance expectations as described above are not being met over time as anticipated, diagnosis will be done to identify causes, and remedies will be developed to meet the established performance standard. The performance standard for species or the federal projects will not be lowered during the terms of the BiOps (although as provided in the BA, tradeoffs among Snake River and lower river dams are allowed). In addition the Parties agree that the current delay and SPE metrics described in Attachment A will not be lowered unless they impede survival. The Parties recognize that new biological information will be available during the term of the MOA that will inform the methods and assumptions used to analyze the effects of hydro operations on fish species covered by this Agreement. The Parties will work together to seek agreement on methods and assumptions for such analyses, building on analyses performed in development of the FCRPS Biological Opinion as warranted. As described in the FCRPS BiOp, a comprehensive review will be completed in June, 2012 and June, 2015 that includes a review of the state of implementation of all actions planned or anticipated in the FCRPS and Upper Snake BiOps and a review of the status and performance of each ESU addressed by those BiOps. The Parties agree that they will jointly discuss the development, analyses and recommendations related to these comprehensive evaluations and, in the event performance is not on track, to discuss options for corrective action. This coordination between the Parties is in addition to any coordination that the Action Agencies do with additional regional entities. John Day Pool Operations The Action Agencies will meet with the Tribes in the near-term to discuss relevant existing hydraulic and biological information to better understand the biological benefits and/or 2 3 TREATY TRIBES-ACTION AGENCY AGREEMENT detriments associated with John Day reservoir operations. JDA MOP is a contingency and so may be decided as a product of the 2015 comprehensive review. A.3. Research, Monitoring, and Evaluation. Maintaining and improving research, monitoring, and evaluation programs is critical to informed decision making on population status assessments and improving management action effectiveness. The Action Agencies will implement status and effectiveness research, monitoring and evaluation sufficient to robustly track survival improvements and facilitate rebuilding actions accomplished, in part, through projects and programs identified in Attachment B. The Parties further agree that the Action Agency effort should be coordinated with implementation partners including other fishery managers. The Tribes rely heavily on the services of the Fish Passage Center, an organization which the Tribes were instrumental in creating. BPA agrees to provide funding to maintain the Fish Passage Center to provide evaluation resources required by the Tribes, as set forth at Section IID. B. Spring spill/transport The Parties agree to the initial spill and transportation protocols set out in the draft BiOp with one exception: the Parties have agreed to an adjustment of the initial transportation protocols in order to benefit adult returns of Group B steelhead, while also taking into account spring and fall Chinook. Initial Transportation Plan When flows are less than 65 KCFS4, full transport (no voluntary spill or bypass provided except as needed for research purposes) will be initiated at the Snake River collector projects from April 3 through early June. Summer spill will commence at collector projects when subyearling numbers exceed 50% of the sample at each of the collector projects for a 3 day period after June 1. This low flow transport strategy is unchanged from the draft FCRPS BiOp When flows are greater than 65 KCFS1, spill will begin on April 3, 5, and 7 at LGR, LGS, and LMN dams (all fish to remain in-river until April 21 when collection and transport will begin) and continue through May 6 consistent with the draft FCRPS BiOp. From May 7 through May 20 full transport (no voluntary spill or bypass provided except as needed for research purposes) will be initiated at the Snake River collector projects with spring spill and transport operations resuming May 21 and continuing through early June. Summer spill will commence at collector projects when subyearling numbers exceed 50% of the sample at each of the collector projects for a 3 day period after June 1. All other transport protocols shall be consistent with the draft FCRPS BiOp. 4 The seasonal average flow projection will be based on the Corps’ STP model and the April final forecast (late March report). 3 3 TREATY TRIBES-ACTION AGENCY AGREEMENT The Parties agree that this transportation adjustment is part of the broader Group B steelhead package that is based on the best available scientific information and is aimed at addressing both FCRPS and US v. Oregon objectives. The spill reduction component of this package is the "action of last resort." The Action Agencies agree to fund the implementation of the actions included as part of the Group B steelhead survival improvement package, Attachment C, with specific projects and budgets identified in Attachment B. Through the adaptive management provisions of the BiOp and otherwise as consistent with the provisions of Section IV of this Agreement, the Parties will review the transportation protocols taking into account new information concerning adult returns, in-river and transportation SARs, and model results. If new information indicates a modified transportation protocol is warranted, adaptive management will be used to make the appropriate adjustments in timing and triggers for transportation, recognizing that spring spill reduction is the “action of last resort”. This transport operation would result in a reduction in spring spill compared to the 2006 through 2008 operation. The Group B steelhead survival improvement package is Attachment C. C. Summer spill The Parties agree to support the following alternative, based on the summer spill approach described in the draft FCRPS BiOp, recognizing that the alternative would not be implemented until the 2009 season: Beginning August 1, curtailment of summer spill may occur first at Lower Granite Dam if subyearling Chinook collection counts fall below 300 fish per day for 3 consecutive days (beginning July 29, 30, and 31 for August 1 curtailment). Using the same 300 fish criterion, the curtailed spill would then progress downstream with each successive dam on the Snake River, with spill at LGS ending no earlier than 3 days after the termination of spill at LGR, and ending at LMN no earlier than 3 days after the termination of spill at LGS assuming the 300 fish criterion has been met at those projects. Spill would be curtailed at IHR no earlier than 2 days after LMN, without use of the 300 fish criterion. Spill will end at 0600 hours on the day after the necessary curtailment criteria are met. If after cessation of spill at any one of the Snake River projects on or after August 1, subyearling Chinook collection counts again exceed 500fish per day for two consecutive days, spill will resume at that project only. Thereafter, fish collection count numbers will be reevaluated daily to determine if spill should continue using the criteria above (300 fish per day) until August 31. As this new program is implemented, the Parties will continue to gather data and investigate at least the following issues: • Adult returns; • Juvenile passage timing; • Juvenile fall Chinook salmon life-history diversity traits (i.e. subyearling and yearling emigration attributes); • Other as agreed to. 4 3 TREATY TRIBES-ACTION AGENCY AGREEMENT The Parties acknowledge that this summer spill is supported by currently available information, and that the operation will be reviewed and may be adjusted to take into account more recent information through the adaptive management provisions of the BiOp and otherwise consistent with the provisions of Section IV of this Agreement. If new information indicates support for a change in timing or triggers to accomplish anticipated coverage of the run (e.g. not a substantially lower percentage of the run as compared to 2005 to 2007 for Snake River fall Chinook),adaptive management and the provisions of Section IV of this Agreement will be used to consider the appropriate adjustments. D. Monitoring and Verification; Fish Passage Center The Action Agencies acknowledge that the Tribes' ability to monitor and verify performance of the FCRPS under the BiOps is essential to their participation in this MOA, and the Action Agencies support such monitoring and verification and will so state in any forum. The Parties agree that monitoring and verification functions are currently provided via funding for the Fish Passage Center. BPA will continue funding the Fish Passage Center, with funds for a manager and for technical and clerical support in order to perform the functions of the Center as stated in the Council’s 2003 Mainstem Amendment, for the duration of this MOA unless the Parties agree on an alternative. If the Council changes the Fish Passage Center responsibilities in Program amendments, BPA would consult with the Tribes in advance about what changes BPA would propose, if any, in response to ensure BPA’s continued funding is done in a manner consistent with the terms of this Agreement, the Program and Ninth Circuit case law. If a change in Center functions impacts the Tribes' ability to monitor and verify performance of the FCRPS BiOp or this Agreement, BPA would provide funding to the Tribes or an agreed-upon alternative to continue this work. E. Spring Creek Hatchery Releases Spring Creek Hatchery commitments are described in Attachment D. The Parties agree that their common priority is to modify Spring Creek Hatchery production so that the early hatchery releases and spill at Bonneville Dam are unnecessary. Consistent with Section IV, the Parties commit to affirmatively support these commitments in appropriate forums. F. Status of the Lyon’s Ferry production program The parties to US v. Oregon have agreed to monitor the Lyon’s Ferry production program over the term of the 10-year US v. Oregon management plan. Any US v. Oregon party may propose changes to that program by invoking the modification provisions of the US v. Oregon management plan. The Action Agencies understand that that Tribes’ willingness to accept spill operations as outlined above is directly related to their expectation that the Lyon’s Ferry production program remains stable and substantially unaltered than as currently designed for the term of this Agreement. Should that fundamental expectation be upset, the Tribes will consider this a material change and grounds for withdrawal from the Agreement, and may, after notice to the Action Agencies, advocate for spill actions that deviate from those contemplated in this Agreement, using the dispute resolution procedures under Section IV.F. Tribal advocacy for 5 3 TREATY TRIBES-ACTION AGENCY AGREEMENT spill actions outside the dispute resolution procedures may be considered by the Action Agencies a material change that would trigger withdrawal. G. Flow Actions (including flow surrogates) The Parties agree to the following actions in addition to those in the draft FCRPS BiOp: • Improve forecasting methods and tools to optimize reservoir use for fish operations; see Attachment E. • Federal Government coordination with Tribes on objectives and strategies for Treaty/Non-Treaty water negotiations; see Attachment F • Libby/Hungry Horse Operations -- Implementation of the Libby/ Hungry Horse Operations as described in the 2003 Council Mainstem Amendments and the Draft FCRPS BiOp for modifications to the storage reservoirs in Montana. H. Lamprey protection The Parties understand that the Pacific Lamprey is a species of fish that is significant to the well- being of the Tribes, who use these fish for food and medicine. Lamprey abundance has diminished in the Columbia Basin in the last 30 years and this diminishment is of high concern to the Parties. The Parties agree to undertake the actions to protect lamprey described below and in Attachment B. The Parties will work together to combine Action Agency, Tribal, and other agency lamprey actions into a comprehensive lamprey improvement program. Beginning in 2008, the Parties and the Tribes will meet periodically to discuss the lamprey implementation and funding issues including priorities and impediments. The Parties agree that being proactive for lamprey is critical to seek to avoid ESA listing. The Tribes’ commitments to forbearance regarding lamprey as described in Section IV.B are contingent on good faith implementation of the actions described in this lamprey section of this Agreement. Material modifications of the lamprey implementation and related funding under Section II.H may, after resort to the Dispute Resolution provisions, result in modification of the Forbearance provision regarding lamprey. Bonneville Power Administration BPA will fund the Tribal projects for Pacific Lamprey identified in Attachment B, with a total overall programmatic commitment of $1.866 million per year for lamprey projects. This funding commitment is made with the recognition that lamprey funding may be adjusted between fiscal years in a manner consistent with Section III.F.4, so long as the total funding does not exceed $18.66 million (unadjusted for inflation) except as the Parties may agree otherwise. 6