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United States v. Port of Everett

United States District Court, W.D. Washington

July 24, 2019

UNITED STATES OF AMERICA, STATE OF WASHINGTON THROUGH THE WASHINGTON DEPARTMENT OF ECOLOGY, SUQUAMISH TRIBE, AND TULALIP TRIBES, Plaintiffs,
v.
PORT OF EVERETT, Defendant.

          Jeffrey Bossert Clark, United States Department of Justice Assistant Attorney General, Environment and Natural Resources-Division.

          Danica Anderson Glaser Trial Attorney United States Department of Justice, Environment and Natural Resources Division, Environmental Enforcement Section.

          Kent E. Hanson Senior Attorney United States Department of Justice, Environment and Natural Resources Division, Environmental Defense Section.

          John A. Level Assistant Attorney General State of Washington.

          Tim Brewer, Reservation Attorney, Tulalip Tribes Office of the Reservation Attorney.

          Saza Osawa, Reservation Attorney, Tulalip Tribes Office of the Reservation Attorney.

          CONSENT DECREE

         I. BACKGROUND

         A. The Plaintiffs have filed a complaint in this matter against the Port of Everett ("Settling Defendant" or "Port") pursuant to the Model Toxics Control Act ("MTCA"), chapter 70.105D RCW; chapter 90.48 RCW; Section 311 of the Clean Water Act ("CWA"), 33 U.S.C. § 1321; and Section 1002(b)(2)(A) of the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C. § 2702(b)(2)(A) for Natural Resource Damages as a result of releases of hazardous substances and discharges of oil into the Port Gardner Bay Area. Potential claims of the non-federal Trustees against the United States on behalf of the Settling Federal Agency are deemed filed and some or all of the allegations in such claims are deemed denied. The Port Gardner Bay Area (as defined below and depicted in Appendix A) includes the lower Snohomish River, Everett Waterfront, East Waterway, and a portion of Possession Sound in and near Everett, Washington. Several industrial facilities - including those owned and/or operated by the Settling Defendant and owned and/or operated by the Settling Federal Agency, identified in Appendix B - have contributed hazardous substances and oil to the Port Gardner Bay Area. This Consent Decree (the "Decree") addresses the claims asserted in the Complaint against the Port and potential claims against the Settling Federal Agency.

         B. The United States Department of Commerce, acting through the National Oceanic and Atmospheric Administration ("NOAA"); the United States Department of the Interior; the Washington Department of Ecology on behalf of the State of Washington ("State"); the Suquamish Tribe; and the Tulalip Tribes, (collectively, "the Trustees" and, individually, a "Trustee"), under the authority of Section 107(f) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607(f); Section 1006(b) of OP A, 33 U.S.C. § 2706(b); 40 C.F.R. Part 300, subpart G; and RCW 70.105D.040(2), serve as trustees for Natural Resources for the assessment and recovery of damages for injury to, destruction of, or loss of Natural Resources under their trusteeship.

         C. Investigations conducted by the Trustees and others have detected hazardous substances in the sediments, soils and groundwater of the Port Gardner Bay Area, including, but not limited to, polychlorinated dibenzodioxins and furans ("dioxins"), polychlorinated biphenyls ("PCBs"), organochlorine pesticides and related products, polycyclic aromatic hydrocarbons ("PAHs"), metals (including lead, mercury, copper, chromium, and arsenic), volatile and semi-volatile organic compounds (including 4-methylphenol), perchlorate, herbicides, organic solvents, antifouling agents such as tributyltin and other butyltins, and wood waste degradation products (including sulfide and ammonia).

         D. Plaintiffs allege that hazardous substances and oil released to the Port Gardner Bay Area from facilities owned and/or operated by Settling Defendant and facilities owned and/or operated by the Settling Federal Agency, identified in Appendix B, have caused injury to, destruction of and loss of Natural Resources under Plaintiffs' trusteeship, including fish, shellfish, wildlife, marine sediments, and resources of cultural significance. Plaintiffs further allege that each of them and the public have suffered the loss of natural resource services (including ecological services as well as direct and passive human use losses) as a consequence of those injuries.

         E. Although the Trustees initiated but have not completed a full natural resource damage assessment for the Port Gardner Bay Area, the Trustees have developed and analyzed information sufficient to support a settlement that is fair, reasonable and in the public interest.

         F. The Trustees issued a Damage Assessment Restoration Plan and Environmental Assessment for the Port Gardner Bay Area in August 2016, which the Trustees adopted as final in October 2016 after a public comment period, selecting the Blue Heron Slough Restoration Project ("Restoration Project" or "Project") as the preferred alternative to restore, replace, and/or acquire the equivalent of injured Natural Resources and services.

         G. As contemplated by this Consent Decree, the Port will resolve its liability as set forth in Section XIII by constructing, monitoring and maintaining the Blue Heron Slough Restoration Project as described in Appendix C. The Project will restore and protect in perpetuity approximately 338 acres of habitat in the Snohomish River estuary that is highly beneficial to injured Natural Resources in the Port Gardner Bay Area. As set forth in this Decree and Appendix C, the Port shall purchase 469.39 natural resource damage restoration credits ("NRD DSAYs") equivalent to 34.79 acres of the Project Site upon Final Completion of the Project. The Project will also be a certified conservation bank, maintained in perpetuity by Wildlands of Washington, LLC, as outlined in the Puget Sound Salmon, Steelhead, and Bull Trout Umbrella Conservation Bank Agreement and Addendum #1, Blue Heron Slough Conservation Bank Agreement ("Conservation Bank Agreement" or "CBA"), approved by NOAA's National Marine Fisheries Service on June 18, 2008.

         H. To facilitate the resolution of natural resource damage claims, relying upon the results of remedial investigations, regulatory standards, and scientific literature, and as set forth in the final Damage Assessment Restoration Plan and Environmental Assessment, the Trustees developed an estimate of the amount of injury to Natural Resources that had occurred as a result of releases of hazardous substances and discharges of oil to the Port Gardner Bay Area. The Trustees used a metric called discounted service acre-years ("DSAYs") to quantify the effects of the injuries in terms of the losses of ecological services over affected areas and over time, discounted to the current year. The Trustees used DSAYs to describe both the scale of the injuries, and the amount of habitat restoration they are seeking to compensate for the injuries. The Trustees first calculated the DSAYs lost due to contamination to the Port Gardner Bay Area, then calculated the DSAYs associated with the Port's Restoration Project, determining that purchase of NRD DSAYs by the Port, described in the preceding paragraph, is sufficient to resolve the liability of the Port.

         I. Consistent with Sections 7.4 and 8.1.3 of the Trustees' Damage Assessment Restoration Plan and Environmental Assessment, Port Gardner Bay Trustee Council Resolution No. 2019-01, and the March 7, 2019, Memorandum of Agreement ("MOA") between the U.S. Fish and Wildlife Service, acting on behalf of DOI, the Tulalip Tribes, and Settling Defendant, after approval and entry of this Decree by the Court, the Trustees anticipate using the natural resource damages payments received by the Trustees pursuant to the Consent Decree entered in United States, et al. v. Jeld-Wen, Inc., et al, Civil Action No. 2:18-cv-00113 (W.D. Wash.) ("Cashout Consent Decree") to purchase restoration credits in the Blue Heron Slough Restoration Project equivalent to the 399.74 NRD DSAYs (equivalent to 29.63 acres of the Project Site) allocated to the Potentially Responsible Parties ("PRPs") that entered into the Cashout Consent Decree. The purchase of these restoration credits will be in addition to Settling Defendant's obligation to purchase 469.39 NRD DSAYs, as described in Paragraphs G and 29.

         J. Plaintiffs assert that hazardous substance releases and oil discharges to the Port Gardner Bay Area have become dispersed and commingled to the extent that the effects of releases of one PRP cannot be readily distinguished from another's. Plaintiffs further assert that the circumstances of the contamination make all PRPs who contributed to the contamination jointly and severally liable for all injuries to Natural Resources that have resulted from the contamination. As a consequence, Plaintiffs assert the right to recover for the loss of all the calculated DSAYs and associated damage assessment costs from any PRP. Without prejudice to their position and solely for purposes of facilitating settlement with individual PRPs, the Plaintiffs have determined that settling with the Settling Defendant and the Settling Federal Agency for a portion of the Natural Resource damages attributable to all Port Gardner Bay Area sources would result in a fair and equitable resolution of Plaintiffs' claims. The Trustees have estimated the cash damages equivalent of the DSAYs allocated to Settling Defendant (469.39 of the 1, 019 total DSAYs assessed by the Trustees for the Port Gardner Bay Area) to total $4, 634, 287.47. In lieu of payment of damages, the Port will implement the Restoration Project as set forth in this Decree. The State and the Tribes have agreed to settle their claims against the Settling Federal Agency for the equivalent of 80 DSAYs (having a cash damages equivalent of $789, 840).

         K. The Parties agree, and this Court by entering this Consent Decree finds, that this Decree has been negotiated by the Parties in good faith, that settlement of this matter will avoid prolonged and complicated litigation between the Parties, that this Decree will expedite the restoration and protection of Natural Resources at and near the Port Gardner Bay Area, that the timely implementation of the Restoration Project and payments to be provided under this Decree constitute appropriate actions necessary to protect and restore the Natural Resources allegedly injured by releases or threatened releases of hazardous substances and discharges of oil by the Settling Defendant and the Settling Federal Agency, and that this Decree is fair, reasonable, and in the public interest.

         NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:

         II. JURISDICTION AND VENUE

         1, This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1345 and 1367, and 42 U.S.C. §§ 9607 and 9613(b) and 33 U.S.C. § 2717(b). The Court also has personal jurisdiction over the Settling Defendant. Solely for purposes of this Consent Decree and the underlying Complaint, the Settling Defendant waives all objections and defenses that it may have to jurisdiction of the Court or to venue in this District. Settling Defendant shall not challenge the terms of this Decree or this Court's jurisdiction to enter and enforce this Decree.

         III. PARTIES BOUND

         2. This Consent Decree is binding upon the United States, the State, the Suquamish Tribe, the Tulalip Tribes, and the Settling Defendant, its successors, and assigns. Any change in ownership or corporate or other legal status of Settling Defendant, including, but not limited to, any transfer of assets or real or personal property, shall in no way alter Settling Defendant's responsibilities under this Consent Decree.

         3. Settling Defendant shall provide a copy of this Consent Decree to each contractor hired to perform any of the work required by this Consent Decree, and to each person representing Settling Defendant with respect to such work, and shall condition all contracts entered into hereunder upon performance of the work in conformity with the terms of this Consent Decree. Settling Defendant or its contractors shall provide written notice of the Consent Decree to all subcontractors hired to perform any portion of the work. Settling Defendant shall nonetheless be responsible for ensuring that its contractors and subcontractors perform the work in accordance with the terms of this Consent Decree.

         IV. DEFINITIONS

         4. Unless otherwise expressly provided in this Consent Decree, terms used in this Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA shall have the meaning assigned to them in CERCLA or such regulations. Whenever terms listed below are used in this Decree or its appendices, the following definitions shall apply solely for purposes of this Decree:

         a. "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.

         b. "Commerce" shall mean the United States Department of Commerce and its successor departments, agencies, or instrumentalities.

         c. "Consent Decree" or "Decree" shall mean this consent decree and all appendices attached hereto (listed in Section XXI) and any final approved plans required hereunder. In the event of a conflict between this Consent Decree and any Appendix or plan, the Consent Decree shall control.

         d. "Conservation Bank Agreement" or "CBA" shall mean the Puget Sound Salmon, Steelhead, and Bull Trout Umbrella Conservation Bank Agreement and Addendum #1, Blue Heron Slough Conservation Bank Agreement, approved by NOAA's National Marine Fisheries Service on June 18, 2008.

         e. "Day" or "day" shall mean a calendar day. In computing any period of time under this Consent Decree, where the last day falls on a Saturday, Sunday, or federal holiday, the period shall run until the close of business of the next working day.

         f. "Default" shall mean circumstances constituting default as defined in the Performance Bond attached as Appendix F.

         g. "DOI" shall mean the United States Department of the Interior and its successor departments, agencies, or instrumentalities.

         h. "DSAYs" means discounted service acre-years, the metric established by the Trustees to quantify the scale of Natural Resource Damages liability associated with the Port Gardner Bay Area and the natural resource restoration efforts needed to compensate for injury to, destruction or loss of Natural Resources giving rise to liability.

         i. "Effective Date" shall mean the date upon which the approval of this Consent Decree is recorded on the Court's docket.

         j. "Federal Trustees" shall mean DOI and Commerce, acting through NOAA.

         k. "Final Completion" shall mean the completion of construction of the Project, as defined in Section 10 of Appendix C.

         1. "Initial Maintenance and Monitoring" shall mean the maintenance and monitoring activities during the first ten (10) years after Final Completion, described in Section 7 of Appendix C.

         m. "Lodging Date" means the date on which this Consent Decree is lodged with the Court.

         n. "Long-Term Maintenance and Monitoring" shall mean the maintenance and monitoring activities during the twenty (20) years after completion of Initial Maintenance and Monitoring, described in Section 8 of Appendix C.

         o. "Maintenance and Monitoring" shall mean the maintenance and monitoring activities during the first thirty (30) years after Final Completion, and includes both Initial Maintenance and Monitoring and Long-Term Maintenance and Monitoring.

         p. "MTCA" shall mean the Washington Model Toxics Control Act, Chapter 70.105DRCW.

         q. "Natural Resource Damages" shall mean any damages, including the costs of damage assessment, recoverable by the Trustees under Section 107 of CERCLA, 42 U.S.C. § 9607; Chapter 70.105D RCW; Section 311 of the Clean Water Act ("CWA"), 33 U.S.C. § 1321; Chapter 90.48 RCW; and Section 1002(b)(2) of the Oil Pollution Act of 1990 ("OP A"), 33 U.S.C. § 2702(b)(2), for injury to, destruction of, loss of, loss of use of, or impairment of Natural Resources, including, but not limited to: (i) the costs of assessing such injury, destruction, or loss or impairment of natural resources; (ii) the costs of restoration, rehabilitation, or replacement of injured or lost natural resources or of acquisition of equivalent resources; (iii) the costs of planning such restoration activities; (iv) compensation for injury, destruction, loss, impairment, diminution in value, or loss of use of natural resources; and (v) each of the categories of recoverable damages described in 43 C.F.R. § 11.15, and applicable State or tribal law, resulting from releases of hazardous substances or discharges of oil to the Port Gardner Bay Area, where such release or discharge occurred on or before the Effective Date of this Consent Decree, at the locations identified in Appendix B. Damages, injury to, destruction of, loss of, loss of use of, or impairment of Natural Resources resulting from releases of hazardous substances or discharges of oil originating from Settling Defendant's operations or activities at properties other than the property identified in Appendix B are not included in Natural Resource Damages, for purposes of this Decree, even if those hazardous substances or discharges of oil reach the Port Gardner Bay Area by flowing over, under, or through any portion of the property identified in this subparagraph.

         r. "Natural Resources" shall mean that definition as provided in 42 U.S.C. § 9601(16).

         s. "Parties" shall mean the United States, the State of Washington,, the Suquamish Tribe, the Tulalip Tribes, and the Settling Defendant.

         t. "Performance Standards" are the standards for performance of the work for the Project set forth in Appendix C.

         u. "Plaintiffs" shall mean the United States, the State of Washington, the Suquamish Tribe, and the Tulalip Tribes.

         v. "Port" or "Port of Everett" shall mean the Settling Defendant.

         w. "Port Gardner Bay Area" shall mean the area depicted on Appendix A, attached, including the lower Snohomish River, Everett Waterfront, East Waterway, and a portion of Possession Sound in and near Everett, Washington.

         x. "Project" or "Restoration Project" shall mean the Blue Heron Slough Restoration Project, including all work and other commitments identified in Appendix C.

         y. "Project Abandonment" shall mean a circumstance in which Settling Defendant, directly or through its contractors, (a) has abandoned construction or has abandoned Maintenance and Monitoring of the Project, without Trustee permission or approval, or (b) is seriously and repeatedly deficient in construction or in Maintenance and Monitoring of the Project in accordance with Appendix C.

         z. "Project Site" shall mean the areas outlined for the Restoration Project as identified in Appendix C.

         aa. "Settling Defendant" shall mean the Port of Everett.

         bb. "Settling Federal Agency" shall mean the United States Navy and its successor departments, agencies, or instrumentalities.

         cc. "State" shall mean the State of Washington, dd. "Stewardship" shall mean actions intended to preserve, protect or maintain the Project and the Project Site in perpetuity after the completion of Long-Term Maintenance and Monitoring, as required by the Conservation Bank Agreement, including (a) maintaining, restoring or replacing the ecological function of the Projects; and (b) maintaining, restoring or replacing physical components of the Project.

         ee. "Tribes" shall mean the Suquamish Tribe and the Tulalip Tribes, ff. "Trustees" shall mean Commerce, acting through NOAA; DOI; the Washington State Department of Ecology, on behalf of the State of Washington; the Suquamish Tribe; and the Tulalip Tribes.

         gg. "United States" shall mean the United States of America and each department, agency, and instrumentality of the United States, including Commerce, acting through NOAA; DOI; and the Settling Federal Agency.

         hh. "Wildlands" shall mean Wildlands of Washington LLC, a business entity that, among other things, designs, constructs, and maintains natural resource restoration and enhancement projects on behalf of persons that are liable for natural resource damages at properties that have suffered a loss of Natural Resources pursuant to CERCLA. The Port is working with Wildlands to plan, restore and manage habitat within the Project Site.

         V. GENERAL PROVISIONS

         5. The Complaint states claims upon which relief may be granted.

         6. This Consent Decree shall not be used as evidence of Settling Defendant's or Settling Federal Agency's alleged liability in any action or proceeding other than an action or proceeding to enforce the terms of this Decree.

         7. This Decree is not, and shall not be construed to be, a permit issued pursuant to any law. Where any portion of the activities undertaken pursuant to this Decree requires a federal, state or local permit or approval, Settling Defendant shall submit timely and complete applications and take all other actions necessary to obtain such permits or approvals. Settling Defendant may not seek relief under the provisions of Section X (Force Majeure) of this Decree for any delay in the performance of the Project resulting from a failure to obtain, or a delay in obtaining, any permit or approval required for the Project.

         8. Settling Defendant shall ensure that all work performed under this Decree shall be conducted as set forth in Appendix C to achieve the objective of constructing and maintaining the Project to meet the Performance Standards identified in Appendix C. If the Trustees determine that Settling Defendant is not complying with the requirements set forth in the Decree, including Appendix C, the Trustees shall provide written notice to Settling Defendant specifying the basis for their determination of noncompliance. Settling Defendant may correct the noncompliance or invoke the dispute resolution procedures set forth in Section XI. The Trustees may require Settling Defendant to take actions to alter, suspend or cease ongoing activities, and to alter, postpone or refrain from taking proposed actions, as are necessary to ensure compliance with the terms of this Decree and any plans or proposals adopted hereunder. If Settling Defendant disputes any such requirements imposed by the Trustees, the Settling Defendant may invoke the dispute resolution procedures set forth in Section XL Notwithstanding the foregoing, if in connection with the noncompliance the Trustees seek to exercise one of the performance guarantees in Section VI.F, the procedures described in Paragraph 26 will control.

         9. The Plaintiffs do not, by their consent to the entry of this Decree, warrant or aver in any manner that Settling Defendant's compliance with this Decree will result in compliance with CERCLA or any other law. Compliance with this Decree does not diminish or affect Settling Defendant's responsibility to comply with any applicable federal, state, tribal or local law or regulation. The Parties agree that Settling Defendant is responsible for achieving and maintaining complete compliance with all applicable federal, state, tribal and local laws, regulations and permits (including those related to Settling Defendant's operation, maintenance and repair of the 1-5 Dike identified in Sections 6.1, 8.2 and 10.1 of Appendix C).

         VI. PERFORMANCE OF RESTORATION PROJECT BY SETTLING DEFENDANT

         10. Settling Defendant shall fund and perform all activities required for design, construction, and Maintenance and Monitoring of the Blue Heron Slough Restoration Project, in accordance with the requirements and schedule set forth in Appendix C, and shall make arrangements for Stewardship of the Project in accordance with the Conservation Bank Agreement. The Parties stipulate that the time period for implementing the Project is a significant factor in the settlement reached in this Decree and that delay in carrying out the activities required in this Decree may diminish the compensatory value attributable to those activities.

         A. Design and Construction of the Blue Heron Slough Project

         11. Settling Defendant shall reach Final Completion of the Project by no later than four years after the Effective Date of this Decree. If Settling Defendant has not reached Final Completion by this date, then Settling Defendant shall either (i) pay to the Trustees the sum of $50, 000 as compensation for the additional delay in restoration of Natural Resources, or (ii) perform additional restoration work agreed upon in writing by Settling Defendant and the Trustees. For each subsequent year beyond four years after the Effective Date of this Decree in which Settling Defendant has not reached Final Completion, and the Trustees have not taken over restoration work by requiring payments in accordance with Paragraphs 26 or 28, Settling Defendant shall either (i) pay to the Trustees the sum of $50, 000 as compensation for the additional delay in restoration of Natural Resources, or (ii) perform additional restoration work agreed upon in writing by Settling Defendant and the Trustees, Settling Defendant's obligations under this paragraph are in addition to any other obligations or applicable penalties under this Decree. If a condition constituting default under the terms of the Performance Bond (Appendix F) occurs, Settling Defendant may request, and the Trustees may consider and agree to, adjustments to the construction deadline described in this paragraph and the related deadlines set forth in Appendix C.

         12. Within ninety (90) days after Final Completion, Settling Defendant shall submit a written Notice of Final Completion to the Trustees. The Trustees shall review the results of the development of the Project to determine whether the Project has been constructed in accordance with, and as designed to meet the Performance Standards set forth in, Appendix C. Within ninety (90) days after receiving the Notice of Final Completion, the Trustees shall submit to Settling Defendant either (a) a written notice identifying specific deficiencies the Trustees determine must be satisfied for the Project to be completed in accordance with Appendix C (Notice of Deficiencies); or (b) a written notice of the Trustees' determination that the Project has been so completed (Notice of Approval of Final Completion). Failure by the Trustees to provide any notice within the specified time shall be deemed approval. Within one hundred eighty (180) days of receipt of a Notice of Deficiencies, or as otherwise agreed to in writing by the Trustees, Settling Defendant shall correct the identified deficiencies and complete the Project in accordance with Appendix C, and submit to the Trustees an amended Notice of Final Completion for review and response in accordance with this paragraph. Any delay in completing construction of the Project as a result of the operation of this paragraph shall not in and of itself constitute grounds for relief from the requirement to pay compensation under Paragraph 11 of this Section or stipulated penalties under Section XII (Stipulated Penalties) for compliance delays.

         B. Initial Maintenance and Monitoring Requirements

         13. Settling Defendant shall develop and submit to the Trustees for review and approval an Initial Maintenance and Monitoring Plan, by the deadline set forth in Appendix C (Sections 9.3 and 10.1), to maintain and monitor the vegetation and habitat of the Project to meet the Performance Standards set forth in Appendix C for a period often (10) years from Final Completion, including any needed Contingency Measures or Adaptive Management Plans as directed at the sole and unreviewable discretion of the Trustees. Upon completion of the ten- year period, Settling Defendant shall provide written Notice of Completion of Initial Maintenance and Monitoring Obligations to the Trustees in accordance with Section XIX (Notices and Submissions). Within forty-five (45) days after receiving the Notice of Completion of Initial Maintenance and Monitoring Obligations, the Trustees shall submit to Settling Defendant either (a) a written notice identifying specific deficiencies the Trustees determine must be satisfied for the Initial Maintenance and Monitoring obligations to be completed in accordance with Appendix C (Notice of Deficiencies); or (b) a written notice of the Trustees' determination that the Initial Maintenance and Monitoring obligations are completed (Approval of Completion of Initial Maintenance and Monitoring Obligations). Failure by the Trustees to provide any notice within the specified time shall be deemed approval. In the event the Trustees identify, in a Notice of Deficiencies, specific deficiencies with Settling Defendant's compliance with its obligations, Settling Defendant shall correct the identified deficiencies and complete the Project in accordance with Appendix C. Within one hundred eighty (180) days of Settling Defendant's receipt of a Notice of Deficiencies from the Trustees, or as otherwise agreed to in writing by the Trustees, Settling Defendant shall complete all corrective actions and submit to the Trustees an amended Notice of Completion of Initial Maintenance and Monitoring Obligations for review and response in accordance with this paragraph.

         C. Long-Term Maintenance and Monitoring Requirements

         14. Settling Defendant shall develop and submit to the Trustees for review and approval a Long-Term Maintenance and Monitoring Plan, by the deadline set forth in Appendix C (Sections 9.3 and 10.1), for maintaining vegetation and other habitat attributes, for controlling invasive vegetation and debris removal, and for undertaking corrective actions for any perturbation that affects the ecological integrity of the Project, as set forth more fully in Appendix C (Section 8). For purposes of this Decree, Settling Defendant's responsibility for active maintenance and corrective action of the Project (Long-Term Maintenance and Monitoring) shall extend twenty (20) years from the Notice of Completion of Initial Maintenance and Monitoring Obligations, or sooner if the Trustees agree that a "force majeure" event makes corrective action or further maintenance impossible. Perturbations include events with a foreseeable probability of occurrence (such as, for example, flood events up to a 100 year flood event) but do not include "force majeure" events.

         15. Settling Defendant shall be responsible for continued maintenance and corrective actions for the Project in accordance with Paragraph 14, regardless of ownership of property within the Project Site. Settling Defendant is solely responsible for securing the cooperation of any property owners, including Wildlands, in order to successfully complete and maintain the Project in accordance with Appendix C. Any failure by Settling Defendant to successfully complete or maintain the Project in accordance with Appendix C resulting from disputes with any property owners, including but not limited to, Wildlands, shall not constitute a "force majeure" event.

         16. If Settling Defendant transfers ownership of any property within the Project Site prior to the expiration of Settling Defendant's obligations in Paragraph 14, such transfer shall not affect or lessen Settling Defendant's obligations under that paragraph, or any other provision of this Decree, and as a condition of any such transfer, the entity to which any property is transferred shall be required to provide Settling Defendant with all access necessary to fulfill Settling Defendant's responsibilities under Paragraph 14. Within sixty (60) days of any proposed transfer of property within the Project Site, Settling Defendant shall provide the Trustees with written notice of the proposed transfer, identifying the entity that will own the property, certifying that Settling Defendant provided a copy of this Decree to such entity and providing a copy of the proposed access agreement for review and approval by the Trustees.

         D. Stewardship Requirements

         17. The Parties' intention is that the ecological functions provided by the Project be maintained in perpetuity. In order to ensure permanent preservation of the Project Site, and ensure all ecological functions provided by the Project be maintained in perpetuity, Settling Defendant shall grant and record a conservation easement for the Project Site, including for its property, and obtain necessary agreements to grant and record such a conservation easement for property owned by Wildlands. The conservation easements shall be in the form set forth in Appendix D, and shall be executed within thirty (30) days of the Effective Date of this Decree. Settling Defendant shall take all other appropriate actions necessary to ensure that the Project Site will not be used in a manner inconsistent with the requirements of this Decree.

         18. Prior to the completion of Long-Term Maintenance and Monitoring, Settling Defendant shall make arrangements for Stewardship of the Project, consistent with the requirements of the Conservation Bank Agreement.

         E. General Project Requirements

         19. Settling Defendant shall not take any action that is inconsistent with this Decree and that would adversely affect the Project, including those prohibited actions set forth in the Conservation Easement (Appendix D) and the Conservation Bank Agreement.

         20. Settling Defendant shall undertake all activities required to address cultural resource issues associated with the Project, including, as applicable, consultation with tribes and the Washington State Department of Archaeology and Historic Preservation, conducting a background and project review by an archaeologist who meets the Department of Interior's professional qualification standards at 36 C.F.R. Part 61, conducting cultural resource surveys or monitoring activities, and meeting the requirements in Sections 5.1.5 and 6.3 of Appendix C.

         F. Performance Guarantees

         21. Purpose of Performance Guarantees. Settling Defendant shall provide certain Performance Guarantees, described in this Section VI.F, in order to ensure that there are sufficient funds to properly construct the Project and conduct Maintenance and Monitoring, notwithstanding any noncompliance with the terms of this Consent Decree by Settling Defendant or Wildlands. The Performance Guarantees are intended to provide sufficient funds to Settling Defendant to complete, maintain, and monitor the Project in the event of noncompliance by Wildlands; and to provide sufficient funds to the Trustees to complete, maintain, ...


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