Arizona Department of Environmental Quality

Forest Service Agreement Number: 09-MU-11030514020

MEMORANDUM OF UNDERSTANDING
between
USDA FOREST SERVICE, REGION 3,
CORONADO NATIONAL FOREST
and
STATE OF ARIZONA
DEPARTMENT OF ENVIRONMENTAL QUALITY
PHOENIX, ARIZONA

This MEMORANDUM OF UNDERSTANDING, to cooperate in the National Environmental Policy Act process concerning the Rosemont Copper Project, is hereby entered into by and between the USDA Forest Service, Region 3, Coronado National Forest (hereafter, Forest), hereinafter referred to as the Forest Service, and the State of Arizona, Department of Environmental Quality, Phoenix, Arizona, hereinafter referred to as ADEQ.

A. PURPOSE

The purposes of this Memorandum of Understanding (MOU) are to:

1. Provide the framework for a mutually beneficial, cooperative, and productive intergovernmental relationship between the Forest Service and ADEQ with regard to the development of the Forest Service's environmental impact statement for the Rosemont Copper Project.
2. Define the respective roles and responsibilities of the Forest Service and ADEQ as they relate to the process the Forest Service will use in developing an environmental impact statement for the Rosemont Copper Project.
3. Affirm the parties' willingness and agreement to cooperate in the environmental study for the Rosemont Copper Project.
4. Identify the Forest Service as the lead Federal agency and ADEQ as a cooperating agency.
5. Affirm that the Forest Service has primary responsibility for National Environmental Policy Act (NEPA) compliance and preparation of the environmental impact statement for the Rosemont Copper Project.
6. Affirm the commitment of the Forest Service to fully consider the views of the ADEQ in the development of the environmental impact statement for the Rosemont Copper Project.
7. Establish the parties' agreement and commitment to jointly review the environmental impact statement developed under NEPA for the Rosemont Copper Project.
8. Affirm that the Forest Service has sole and ultimate decision-making authority regarding the use of National Forest System lands for the Rosemont Copper Project

B. BACKGROUND

The Council on Environmental Quality regulations, codified at 40 Code of Federal Regulations (C.F.R.) Parts 1500-1508, apply to the Forest Service. The Forest Service also has its own regulations and policies for implementing NEPA. NEPA requires Federal agencies to prepare an environmental impact statement prior to undertaking a major Federal action significantly affecting the quality of the human environment. NEPA also requires Federal agencies to study, develop, and describe appropriate alternatives to any proposal involving unresolved conflicts concerning alternate uses of available resources. NEPA also requires disclosure of the potential impacts of the proposed action and its alternatives.

The Rosemont Copper Project was generated externally by the Rosemont Copper Company. It is a major Federal action that may significantly affect the quality of the human environment. The proposed project is construction, operation, reclamation, and closure of an open-pit mine. The proposed project also includes associated infrastructure.

As proposed, the project would be located in Pima County, Arizona approximately 30 miles southeast of Tucson, Arizona on approximately 995 acres of private land, 3,670 acres of National Forest System land, 15 acres of land administered by the USDI Bureau of Land Management, and 75 acres of State of Arizona State Trust Lands. Ore extraction is proposed to be conducted primarily on private lands. Ore processing, waste management, and other support facilities and infrastructure are proposed to be located on the Forest. Project infrastructure is also proposed to be located on land administered by the USDI Bureau of Land Management and the State Trust Lands.

Annual production estimates include 234 million pounds of copper, 4.5 million pounds of molybdenum, and 2.7 million ounces of silver over a period of approximately 20 years. A further summary of the proposed action is provided in the Forest Service's "Notice of Intent to Prepare an Environmental Impact Statement" published in the Federal Register on March 13, 2008 (Volume 73, Number 50, pages 13527-13529). The complete proposed action consists of the material provided by the Rosemont Copper Company identified in Forest Supervisor Derby's letter of October 19, 2007, and the 28 items responsive to her request for additional information. An electronic composite of this information has been compiled to facilitate its use. It will be referred to hereafter as the composite Mine Plan of Operation (MPO). The composite MPO is available through links at: http://www.fs.fed.us/r/3/coronado/rosemont/mpo.shtml.

The General Mining Act of 1872 confers a statutory right to enter upon public lands open to location in pursuit of locatable minerals, and under valid existing mining claims to conduct mining activities, in compliance with federal and state statutes and regulations. The Multiple-Use Mining Act of 1955 confirms the ability to conduct mining activities on public lands, locate necessary facilities, and conduct reasonable and incidental uses to mining on public lands, including National Forest System lands. Forest Service mining regulations at 36 C.F.R. Part 228 Subpart A correspondingly recognizes the rights of mining claimants.

Although the Forest Service may reasonably regulate mining activities to protect surface resources, there are statutory and constitutional limits to its discretion when reviewing and approving a mining plan of operations. The Forest Service cannot categorically prohibit mining activity or deny reasonable mineral operations under the mining laws. Although selection of a no-action alternative is outside the discretion of the Forest Service Responsible Official, the impacts of no action will be disclosed in the environmental impact statement. In practice, the Forest Service works with the mining applicant to develop an acceptable, legally-compliant plan of operations as an alternative to be considered during the NEPA process, thereby precluding selection of the no-action alternative.

C. MUTUAL BENEFITS AND INTERESTS

In the interest of mutual benefits and interests, both agencies wish to:

1. Develop procedures to ensure that each may efficiently and effectively meet its responsibilities as a public entity.
2. Cooperate to help achieve better outcomes while ensuring each agency's key mandates and legal requirements are adequately and appropriately met.
3. Communicate openly and provide a conduit for the timely exchange of information.
4. Provide a framework to fully consider the physical, biological, social, economic, and cultural impacts of the Rosemont Copper Project as part of their respective and collective planning and decisionmaking processes.
5. Resolve conflicts at the lowest administrative level without having to resort to judicial review.
6. Conduct a periodic review of this MOU for evaluation of its effectiveness.

D. FOREST SERVICE RESPONSIBILITIES

The Forest Service shall:

1. Retain its sole and ultimate decision-making authority regarding the use of National Forest System lands for the Rosemont Copper Project, using the "Rosemont Copper Project Final Environmental Impact Statement," and supporting record as the basis for determining the Final Mine Plan of Operation.
2. Retain its primary responsibility for NEPA compliance including, but not limited to, content of the environmental impact statement, public distribution of the "Rosemont Copper Project Draft Environmental Impact Statement" for review and comment, public distribution of other project materials, management of the comments received on the environmental impact statement, public notice and filing requirements, and arrangements associated with any public meetings to be held.
3. Identify any requirements necessary for compliance with the Land and Resource Management Plan for the Coronado National Forest, 1986, as amended or revised, (hereafter, Forest Plan) or to further amend the Forest Plan as needed.
4. Designate ADEQ as a cooperating agency in the environmental impact statement.
5. Share with ADEQ data and other information that is relevant to the development of the environmental impact statement and within ADEQ's special expertise.
6. Hold, on its own accord or upon request, government-to-government meetings and field reviews with ADEQ as determined appropriate, without general public notice or participation.
7. Confer with ADEQ on relevant technical studies and reports that may be required for the project.
8. Include, to the extent feasible, sufficient documentation in the environmental impact statement and supporting record to allow use by ADEQ to meet their compliance requirements or other responsibilities.
9. Request ADEQ's review of internal working drafts of select portions of the environmental impact statement.
10. Provide ADEQ with copies of the internal working drafts of the "Rosemont Copper Project Draft Environmental Impact Statement" and "Rosemont Copper Project Final Environmental Impact Statement" for review prior to printing of such for public distribution, and negotiate a reasonable amount of time for review.
11. Ensure that contributions by ADEQ are considered and appropriately incorporated into the project.
12. Notify ADEQ of any public notices made by the Forest Service pertaining to the project.
13. Keep ADEQ apprised of the project schedule and provide an updated schedule as it becomes available.
14. Additional responsibilities of the Forest Service in cooperating specifically with ADEQ are contained in Attachment 1.

E. COOPERATING AGENCY RESPONSIBILITIES

ADEQ shall:

1. Perform the duties of a cooperating agency under NEPA for the Rosemont Copper Project.
2. Participate only in those areas under its special expertise, unless otherwise invited by the Forest Service.
3. Provide the Forest Service with responses to data requests to the degree the data are reasonably available within time limits that will meet the project schedule.
4. Share with the Forest Service, data and other information within its special expertise that are or may be relevant to the development of the environmental impact statement.
5. Provide copies of the existing and proposed laws, regulations, and policies within its special expertise that are or may be relevant to the project.
6. Explain the relationship of existing and proposed laws, regulations, and policies within its special expertise to the project.
7. Make a good faith effort to raise concerns about the project and offer solutions relative to its special expertise in a timely and specific manner.
8. Upon request, participate in government-to-government meetings and field reviews with the Forest Service, if feasible.
9. Review and provide written comments on internal working drafts of select portions, as deemed appropriate by the Forest Service, of the environmental impact statement, within a negotiated reasonable amount of time.
   
   
   1. Review is to ensure technical accuracy and conformance with laws, regulations, and policies within ADEQ's special expertise.
   2. Review is to provide recommendations for improvement of reviewed internal working draft material where the materials are found to be incomplete, inadequate, or inaccurate.
10. Review and provide written comments on the internal working drafts of the "Rosemont Copper Project Draft Environmental Impact Statement" and "Rosemont Copper Project Final Environmental Impact Statement" prior to the Forest Service printing of such for public distribution, within a negotiated reasonable amount of time.
    
    
    1. Review is to ensure technical accuracy and conformance with laws, regulations, and policies within ADEQ's special expertise.
    2. Review is to provide recommendations for improvement of reviewed internal working draft material where the materials are found to be incomplete, inadequate, or inaccurate.
11. Provide input to and/or review responses to the public comments received on the "Rosemont Copper Project Draft Environmental Impact Statement," at the request of the Forest Service.
12. Proceed with work as expeditiously as possible to comply with the project schedule.
13. Provide the Forest Service with as much advance warning as possible should budgetary or program constraints prevent ADEQ from fulfilling its commitments identified in this MOU.
14. Make the Forest Service aware if, at any point in the process, its needs are not being met.
15. Additional responsibilities of ADEQ in cooperating with the Forest Service are contained in Attachment 2.

F. MUTUAL AGREEMENT AND UNDERSTANDING

It is mutually agreed and understood by all parties that:

1. JURISDICTIONS. This MOU does not affect each agency's jurisdictions that exist as a matter of law.
2. LEAD AGENCY. The Forest Service is the Lead Federal Agency, and has the authority through the Forest Supervisor to enter into this MOU.
3. COOPERATING AGENCY. ADEQ's participation in preparation of the environmental impact statement for the Rosemont Copper Project as a cooperating agency is appropriate due to its legislative authority and statutory mandate to protect ARizona's public health and the environment through regulation and pollution prevention, and special expertise in evaluating project debelopment to minimize the effects of less desirable environmental conditions.  Additional information as to ADEQ's special expertise is containe in Attachment 3.  ADEQ has the authority through Arizona Revised Statute (A.R.S.) 49-104(A)(4) and (B)(2) and A.R.S. 49-203(B)(6) and 40 Code of Federal Regulations (CFR) 1508.5 and 1501.6 to enter into this MOU (reference Attachment 5 for Arizona Revised Statute citations).
4. INFORMATION MANAGEMENT. The Forest Service will share draft and deliberative materials with ADEQ to further accomplish the putposes of this MOU in achieving the previously stated mutual benefits and interest.  While the Forest Service seeks to conduct a transparent process, not all shared information may be ripe for disclosure to the public.  Sometines confusion and angst is created by the premature release of information to the public.  To minimize this, the Forest Service asks that ADEQ does not proactively make public notice of shared information.  However, the Forest Service recognizes that ADEQ may receive and process, within its authorities, external requests for information.  To reduce external requests for information, the Forest Service intends to post select items of shared information that it deems ripe for public dissemination to the worldwide Internet at www.RosemontEIS.us.  Information furnished by ADEQ in response to a formal request by the Forest Service under this MOU will become part of the Forest Service's official record and subject to public release pursuant to the Freedom of Information Act and other applicable federal statutes.  To allow full and frank discussion of preliminary analysis and recommendations, meetings with cooperating agencies to review draft and deliberative materials will not be open to the public.
5. PARTICIPATION IN SIMILAR ACTIVITIES. This instrument in no way restricts the Forest Service or ADEQ from participating in similar activities with other public or private agencies, organizations, and individuals. Parties may meet separately with any other cooperating agency.
6. COMMENCEMENT/EXPIRATION/TERMINATION. This MOU shall be effective upon the signature of the Forest Supervisor and the ADEQ signing official, and shall remain in effect until public release of the "Rosemont Copper Project Final Environmental Impact Statement" by the Forest Service. This MOU may be extended or amended upon written request of either party and the subsequent written concurrence of the other. Either party may terminate this MOU following the delivery of a 60-day written notice to the other.
   
   Consistent with information tracked by the Council on Environmental Quality, below are some reasons for terminating a cooperating agency agreement:
   
   
   • Cooperating agency lacks special expertise and jurisdiction by law.
   • Cooperating agency lacks authority to enter into an agreement.
   • Cooperating agency lacks agreement with the Lead agency (e.g.: unable to accept the scope of the analysis or the purpose and need for the proposed action; unable to accept responsibilities and/or milestones for analysis and documentation; unable to develop information/analysis of all reasonable alternatives; unable to prevent release of predecisional information; misrepresents the process or the findings presented in the analysis and documentation).
   • Cooperating agency lacks capacity (training or resources) to participate (e.g.: unable to participate during scoping and/or throughout the preparation of the analysis and documentation as necessary to meet process milestones; unable to identify significant issues, eliminate minor issues, identify issues previously studied, or identify conflicts with the objectives of regional, State, and local land use plans, policies, and controls in a timely manner; unable to assist in preparing portions of the review and analysis and to help resolve significant environmental issues in a timely manner; unable to provide resources to support scheduling and critical milestones).
7. RESPONSIBILITIES OF PARTIES. The Forest Service and ADEQ and their respective agencies and offices will oversee the activities set forth herein as individual roles and responsibilities and will utilize their own resources, including the expenditure of funds, in pursuing these objectives. Each party will carry out its separate activities in a coordinated and mutually beneficial manner. While the parties agree to make reasonable efforts to resolve procedural and substantive disagreements, the Forest Service retains final responsibility for determining the content of the environmental impact statement and its related processes.
8. PRINCIPAL CONTACTS. The principal contacts for this instrument are:

   Forest Service Project Technical Contact		State of Arizona Department of Environmental Quality Project Technical Contact
   Salek Shafiqullah		Dennis L. Turner
   Hydrologist		Water Quality Section
   Coronado National Forest		1110 West Washington Street
   300 West Congress Street		Phoenix, Arizona 85007-3210
   Tucson, Arizona 85701		Phone: 602-771-4501
   Phone: 520-388-8377		E-mail: dt1@azdeq.gov
   FAX: 520-388-8305
   E-Mail: sshafigullah@fs.fed.us
   Forest Service Project Management Contact		State of Arizona Department of Environmental Quality Project Management Contact
   Teresa Ann Ciapusci		Dennis L. Turner
   Forest Service Project Manager		Water Quality Section
   Rosemont Copper Project		1110 West Washington Street
   Coronado National Forest		Phoenix, Arizona 85007-3210
   300 West Congress Street		Phone: 602-771-4501
   Tucson, Arizona 85701		E-mail: dt1@azdeq.gov
   Phone: 520-388-8350
   FAX: 520-388-8305
   E-Mail: tciapusci@fs.fed.us
   Forest Service Administrative Contact		State of Arizona Department of Environmental Quality Administrative Contact
   Grants and Agreements Specialist		Henry Darwin
   Coronado National Forest		Director
   300 West Congress Street		Office of Administrative Counsel
   Tucson, Arizona 85701		1110 West Washington Street
   Phone: 520-388-8325		Phoenix, Arizona 85007
   FAX: 520-388-8331		Phone: 602-771-2328
   E-Mail: nnorris@fs.fed.us		FAX: 602-771-1616
   		E-mail: hrd@azdeq.gov

   At its sole discretion, an above-named party may designate an alternate representative. Each agency's designated authorized representative is authorized to act in its behalf with respect to those matters contained in this MOU. Each agency may change the designation or its authorized representative upon oral notice given to the other, confirmed promptly by written notice.

   Each agency may request that additional persons with special expertise attend meetings to present and discuss information. Such attendance must be requested and confirmed by the other party in writing prior to the meeting.

   The Forest Service will be the main contact with the project proponent and its consultant(s) and sub-consultant(s) providing support to the project.

   ADEQ may communicate with the Forest Service's third-party environmental consultant, SWCA Environmental Consultants, only through the Forest Service's Project Management Contact representative or with the specific written permission of the Forest Service's Project Management Contact.

9. NON-FUND OBLIGATING DOCUMENT. Nothing in this MOU shall obligate either the Forest Service or ADEQ to obligate or transfer any funds. Specific work projects or activities that involve the transfer of funds, services, or property among the various agencies and offices of the parties will require executions of separate agreements and be contingent upon the availability of appropriated funds. Such activities must be independently authorized by appropriate statutory authority. This MOU does not provide such authority. Megotiation, execution, and administration of each such agreement must comply with all applicable statures and regulations.

10. ESTABLISHMENT OF RESPONSIBILITY. This MOU is not intended to , and does not create, any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity, by a party against the United States, its agencies, its officers, or any person.

11. AUTHORIZED REPRESENTATIVES. by signature below, the cooperator certifies that individuals listed in this document as representatives of the cooperator are authorized to act in their respective areas for matters related to this agreement.

Attachment 1

Additional Forest Service Responsibilities for Cooperating with ADEQ

The Forest Service acknowledges its prior Memorandum of Understanding with ADEQ (08-MU-11031600-041 dated February 15, 2008) that establishes an intergovernmental relationship for addressing federal and state objectives related to the Clean Water Act of 1972 (86 Stat. 816). To the extent the requirements of the February 2008 MOU pertain, the Forest Service will incorporate them into the environmental study for the Rosemont Copper Project. (See Attachment 4 for the full text of the February 2008 MOU)

Attachment 2

Additional ADEQ Responsibilities for Cooperating with Forest Service

ADEQ is subject to and will follow the below-listed provisions of Arizona Revised Statutes, which are not binding on the Forest Service:

1. Pursuant to A.R.S. §35-214, ADEQ will maintain its records regarding this Memorandum of Understanding at its Phoenix office located at 1110 West Washington Street, Phoenix, Arizona, 85007.
2. Consistent with Arizona Public Records Law (A.R.S. §39-121 and §39.121.01), ADEQ will not disclose Rosemont Copper Project documentation where such disclosure would be detrimental to the best interests of the State of Arizona or where such disclosure would invade privacy and that invasion outweighs the public's right to know.

Attachment 3

Description of ADEO's Special Expertise

ADEQ has four programmatic divisions — Air Quality, Water Quality, Tank Programs, and Waste Programs — to carry out its core responsibilities. As a cooperating agency ADEQ's special expertise includes:

Pollution Control

• ADEQ issues permits, approvals, and certifications to ensure that facilities are legally constructed and operated and that any discharges to the air, water, and soil are within healthful standards established by law.

• ADEQ planning specialists develop management practices and control strategies in areas where standards are not being met.

Monitoring and Assessment

• ADEQ collects air, water, and soil samples for laboratory analyses to monitor for the presence of contaminants.

• ADEQ staff interprets data from field research to draw conclusions about environmental indicators and trends and form the basis for future planning and policy decisions.

Attachment 4

MOU 08-MU-11031600-041 between the Forest Service and ADEQ

February 15, 2008

08-MU-11031600-041

MEMORANDUM OF UNDERSTANDING
between
USDA Forest Service, Southwestern Region
and the
State of Arizona Department of Environmental Quality

This MEMORANDUM OF UNDERSTANDING is hereby entered into by and between the USDA Forest Service, Southwestern Region, hereinafter referred to as the 'Forest Service,' and the State of Arizona Department of Environmental Quality hereinafter referred to as 'ADEQ,' together known as the parties.

A. PURPOSE:

1. To respond to the water quality objectives defined by Congress in the Federal Water Pollution Control Act (Clean Water Act), as amended. The objective of the Clean Water Act (CWA) is to restore and maintain the chemical, physical, and biological integrity of the nations' waters;
2. To respond to the goals and policies of the State of Arizona as defined in the Arizona Environmental Quality Act (EQA) of 1986;
3. To identify the responsibilities and activities to be performed by each agency in carrying out the State Water Quality Management Plan developed pursuant to § 208, 33 U.S.C. § 1288, of the Clean Water Act; and Non-point Source Management Program as related to activities on National Forest System (NFS) lands, as defined by 16 U.S.C. § 1609(a).
4. To foster a collaborative effort in implementing a watershed approach to restore those watersheds not meeting clean water, natural resource and public health goals and to sustain healthy conditions in other watersheds.

Whereas:

1. Arizona Revised Statutes (ARS) § 49-202(A) authorizes the ADEQ to serve as the designated agency in Arizona to implement the Clean Water Act, and ARS § 49-203(A)(3) requires that the Director of ADEQ "adopt by rule a program to control non-point source discharges of any pollutant or combination of pollutants into navigable waters;"
2. ARS § 49.203(B)(5) authorizes ADEQ to enter into agreements with a Federal agency to implement Federal environmental statutes and programs;
3. The Forest Service is authorized and directed by acts of Congress, including but not limited to, the Organic Act of June 4, 1897, as amended (16 U.S.C. § 551): the Multiple-Use Sustained Yield Act of June 12, 1960 (16 U.S.C. § 528-31); and regulations issued by the Secretary of Agriculture to administer and protect the lands and resources of NFS lands and to cooperate with other agencies;
4. The Forest Service, under § 313 of the Clean Water Act, 33 U.S.C. § 1323, is directed to meet Federal, State, interstate, and local substantive and procedural requirements respecting control and abatement of water pollution in the same manner and to the same extent as a non-governmental entity;

B. STATEMENT OF MUTUAL BENEFIT AND INTERESTS:

The Forest Service and ADEQ share the common objective of improving and protecting the nation's waters by implementing progressive watershed-based restoration protection programs, and meeting water quality standards and designated uses.

C. THE ADEQ AND THE USDA FOREST SERVICE AGREE TO:

1. Work together in setting priorities for planning watershed actions and in developing watershed restoration action strategies for watersheds not meeting clean water or natural resource goals;
2. Develop preventative or mitigative land management practices, generally referred to as Best Management Practices (BMPs) to Improve or protect water quality on NFS lands;
3. Jointly identify existing or potential non-point source water pollution problems on NFS lands;
4. Coordinate efforts to assess or monitor water quality or watershed conditions on NFS lands using consistent scientific approaches when applicable;
5. Share data, data analysis, and watershed assessment results to improve future planning and management activities on NFS lands.
6. Use such water quality information for validating existing water quality criteria and designated uses and, when appropriate, develop the data into proposed standards revisions for consideration by ADEQ during regularly scheduled water quality standards reviews;
7. Share training opportunities;
8. Provide, on request, technical expertise and support not otherwise available to the other party, to the extent the supplying party's program priorities, budget, and availability of expertise allow;
9. Meet annually, to maintain coordination and communication, report on water quality management progress and problems, and review proceedings under this memorandum; and
10. Work together to evaluate complaints regarding potential water quality standards violations, to ensure that sources of potential violations are addressed.

D. THE FOREST SERVICE SHALL:

1. Serve as the Designated Management Agency within the context of the Arizona Water Quality Management Program for all NFS lands within the State of Arizona;
2. Acknowledge Arizona Identified designated uses of water and non-point source management program objectives;
3. Ensure all Forest Service projects where water quality Is an issue, meet requirements of State Water Quality Management Plans and the Non-point Source Management Program developed pursuant to federal regulations, and the Clean Water Act
4. Identify program elements needed to meet State programs adopted pursuant to §§ 208 and 319 of the Clean Water Act and incorporate them into the Forest Service program planning and budgeting system;
5. Ensure that all project work schedules for project implementation on the ground contain site specific BMPs, developed through the Land and Resource Management Plan (°LRMP°) implementation process, and to consider technical, economic, and institutional feasibility and potential water quality impacts from the proposed activity in the selection of BMPs. Monitor BMPs on selected activities to ensure they are implemented and are effective, adjust as necessary;
6. Ensure that all new and renewed authorizations for use of NFS lands contain provisions for compliance with all federal, State and local water pollution control and abatement statutes, regulations, standards, and ordinances, including compliance with Clean Water Act § 401, 33 U.S.C. § 1341, as enforceable conditions to those authorizations;
7. Consult with the ADEQ in situations where the Forest Service does not administer the entire watershed and the parties have mutually determined there will be a significant water quality impact due to an activity within the watershed, that the impact will preclude attainment of water quality standards on or off NFS lands, and that the water does not currently meet water quality standards;
8. Provide the ADEQ appropriate and timely opportunity to participate, beginning with the scoping phase, in project and activity plans that have the potential to impact watersheds, riparian areas, or water quality, including projects requiring Clean Water Act § 401, U.S.C. § 1341, certification. Provide the ADEQ the opportunity for field review of projects and activities on NFS lands, and authorization documents, to ascertain implementation of BMPs and environmental constraints identified In environmental documents such as Environmental Assessments or Environmental Impact Statements as may be required under the National Environmental Policy Act;
9. Provide the ADEQ, to the same extent as required of other non-governmental entities, with an annual general assessment of water quality accomplishments, monitoring results, problems, and priorities, including activities that meet the goals and objectives of Total Maximum Daily Load ('TMDL') implementation plans;
10. Provide to the ADEQ water quality and watershed assessment data collected on NFS lands, Including GIS data;
11. Use Forest Service internal education and training to Increase employee awareness of, and sensitivity to, the importance of maintaining and improving water quality, and of the requirements of State and federal water quality regulations and standards;
12. Participate in the TMDL development process by providing input to the ADEQ on monitoring locations and implementation plans on NFS lands;
13. Provide Clean Water Act § 404, 33 U.S.C. § 1344, applications for Forest Service conducted activities, to the ADEQ in a timely manner as part of Clean Water Act § 401, 33 U.S.C. § 1341, water quality certification review.
14. The Forest Service will grant access to NFS lands to the ADEQ to conduct monitoring on an as-needed basis.

THE ADEQ SHALL:

1. Designate the Forest Service as the designated Planning and Management Agency for National Forest System lands within the context of the Arizona Water Quality Management Program.
2. Provide timely drafts of the ADEQ proposed water quality laws, regulations, standards, and policies to the Forest Service for review and comment during their development;
   Page 3 of 5 State of Arizona – Department of Environmental Quality
3. Participate in the Forest Service LRMP implementation process in a manner consistent with ADEQ's regulatory responsibility and authority, in order to make recommendations on necessary LRMPs and implementing projects, activities, or BMPs;
4. Review water quality standards and designated uses when the Forest Service and/or ADEQ monitoring indicate that criteria or uses may not be attainable;
5. Actively involve the Forest Service in all phases of TMDL development on NFS lands in ensuring that the Forest Service has the timely opportunity to provide input on TMDL monitoring site locations and TMDL implementation plans;
6. Provide information to the Forest Service regarding the Clean Water Act § 319(h), 33 U.S.C. § 1329(h), grant process, including assisting with proposal writing and locating non-federal matches;
7. Give Clean Water Act § 319(h) funding priority to proposals when site-specific corrective treatment measures are necessary on NFS lands to correct water quality problems in conjunction with TMDLs;
8. Provide timely guidance and assistance regarding the Clean Water Act §§ 401 and 402 water quality certification process for Forest Service conducted projects and activities subject to Clean Water Act § 404 requirements;
9. Acquire appropriate authorizations from the Forest Service for activities on NFS lands as deemed necessary by the Forest Service.

F. IT IS MUTUALLY AGREED AND UNDERSTOOD BY ALL PARTIES THAT:

1. TERMINATION. Either party shall provide a 30-day notice in writing to terminate the instrument in whole, or in part, before the date of expiration.
2. PARTICIPATION IN SIMILAR ACTIVITIES. This instrument in no way restricts the Forest Service or the ADEQ from participating in similar activities with other public or private agencies, organizations, and individuals.
3. AUTHORITIES. Nothing herein shall be construed in any way as limiting the authority of ADEQ in carrying out their legal responsibilities for management or regulation of water quality. Nothing herein shall be construed in any way as limiting the legal authority of the Forest Service in connection with the proper administration and protection of NFS lands in accordance with Federal laws and regulation.
4. NON-FUND OBLIGATING DOCUMENT. The Forest Service and the ADEQ and their respective agencies and office will handle their own activities and utilize their own resources, including the expenditure of their own funds, in pursuing these objectives. Each party' will carry out its separate activities in a coordinated and mutually beneficial manner. Nothing in this MOU shall obligate either the Forest Service or the ADEQ to obligate or transfer any funds. Specific work projects or activities that Involve the transfer of funds, services, or property among the various agencies and offices of the Forest Service and the ADEQ will require execution of separate agreements and be contingent upon the availability of appropriated funds. Such activities must be independently authorized by appropriate statutory authority. This MOU does not provide such authority. Negotiation, execution, and administration of each such agreement must comply with all applicable statutes and regulations. This MOU is not Intended to. and does not create, any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity, by a party against the United States, its agencies, its officers, or any person.
5. MODIFICATION. Changes within the scope of this instrument shall be made by the issuance of a bilaterally-executed modification.
6. EXPIRATION DATE. This memorandum of Understanding is executed as of the last date shown below and expires in five years at which time it may be renewed by the parties.
7. CORRESPONDENCE AND NOTICE. Any and all correspondence and notices relating to this MOU shall be directed to the persons identified below.

Attachment 5

References

Note: Full text of the below references are available at the cited source. This attachment contains only selected applicable excerpts from the primary references.

MOU Section F, Item 3
(Source: http://www.azleg.state.az.us)

A.R.S. 649-104. POWERS AND DUTIES OF THE DEPARTMENT AND DIRECTOR

A.R.S. 649-203. POWERS AND DUTIES OF THE DIRECTOR AND DEPARTMENT

40 CFR 1501.6 COOPERATING AGENCIES

40 CFR 1508.5 COOPERATING AGENCY
"Cooperating agency" means any Federal agency other than a lead agency which has jurisdiction by law or special expertise with respect to any environmental impact involved in a proposal (or a reasonable alternative) for legislation or other major Federal action significantly affecting the quality of the human environment. The selection and responsibilities of a cooperating agency are described in Sec. 1501.6. A State or local agency of similar qualifications or, when the effects are on a reservation, an Indian Tribe, may by agreement with the lead agency become a cooperating agency.

MOU Attachment 2
(Source: http://www.azleg.state.az.us)

A.R.S. 635-214. INSPECTION AND AUDIT OF CONTRACT PROVISIONS

A.R.S. 639-121. INSPECTION OF PUBLIC RECORDS
Public records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.

A.R.S. 639-121.01. DEFINITIONS; MAINTENANCE OF RECORDS; COPIES. PRINTOUTS OR PHOTOGRAPHS OF PUBLIC RECORDS; EXAMINATION BY MAIL: INDEX