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HomeMy WebLinkAboutPublic Works March 11 20141P1 WHATCOM COUNTY COUNCIL 20 Public Works, Health, and Safety Committee 30 40 March 11, 2014 5P1 60 CALL TO ORDER 7P1 8M Committee Chair Barbara Brenner called the meeting to order at 1:30 p.m. in the 91a Council Chambers, 311 Grand Avenue, Bellingham, Washington. 10F?1 11M ROLL CALL 12M 13P] (1:34:22 PM) 14P] 150 Present: Barbara Brenner, Ken Mann and Pete Kremen. 16M Absent: None. 17M Also Present: Rud Browne. 180 191?1 20M COMMITTEE DISCUSSION 21P] 221N 1. DISCUSSION OF WRIA JOINT BOARD CONCERNS (AB2014 -120) 230 24M Brenner stated she received an email with concerns from Roger Brown. 25P1 260 Dan Gibson, Prosecutor's Office, gave a staff report and described the history of the 27M Revised Code of Washington (RCW) 39.34.190 regarding using flood control zone district 28M funds for water resource activities. Regarding the concern about misappropriation of funds, 290 The statute was silent on the use of funds until 2003. At that time, those funds could be 30M used for water resource activities. The Council designated 50 percent of revenues from the 31M flood fund to water resource activities in the water resource fund. In 2003, the statute 320 changed to allow only 10 percent of those revenues to fund water resources. The County 33M subsequently changed its procedures to fit the State statute. Mr. Brown's communication 34M accuses the County of doing something that the legislature did not yet address. The last 50 35M percent appropriation was done in 2002 for 2003. 36F?1 371a The other point from Roger Brown regarding lapse of appropriation was about money 380 appropriated from the flood fund and placed in the water resource fund, which went to the 39M Joint Board fund. He said that since the money wasn't spent by the Joint Board, the money 401a should have been returned to the County's current expense fund. He referenced County 410 Charter section 6.80. The County operated under the understanding that the money 42M appropriated was passed to the Joint Board, under the agreement with the Joint Board and 431a subject to the expenditures of the Joint Board. 440 45M Brenner stated paperwork said that the money needed to come to the Council for 46M review and approval before going to the Joint Board. Gibson stated the Council used to hold 47M monthly water resources work sessions. That was the opportunity for the Council to 480 participate. Over time, that process fell into disuse. 49P] 500 Brenner stated the process just started again. It was five or six years ago. 511M Someone told her the Joint Board is allowed to budget. Before the money goes to the Joint 52M Board, it was supposed to go to the Council through the County's representative on the 530 Joint Board. The County would then review and approve it before it went to the Joint Board. Public Works, Health, and Safety Committee, 3/11/2014, Page 1 P1 1E They never eliminated the Council's authority to review and approve before anything was 20 done. The Joint Board is using a lot of County money and making unilateral decisions about 30 how it's spent. Gibson stated he doesn't know why that stopped. He assumed there was 41M discussion during those monthly meetings. 5F?1 60 Kremen stated that according to staff, there was a significant lack of participation 71M and interest. He doesn't know what precipitated it. It would have been nice to have formal 8M closure or an explanation for why the process was discontinued. The Planning Unit effort is 91a worthwhile. It's an opportunity for the general public to participate in a very important 101M issue in Whatcom County. The recommendations are potentially valuable. Currently, the 11M Planning Unit is not as productive, but he hopes that will change in the future. 12F?] 131M Brenner stated Councilmember Browne asked about the membership on the Planning 140 Unit. The County allowed for a broad selection of interests to be represented. The County 151M can't force those interests to participate. A couple of them decided to not participate. The 16M Executive is a great representative on the Joint Board. The Joint Board doesn't include the 170 public. She's not pleased about that. Everything is being done through the Joint Board, not 18M the Planning Unit. They must respect the Planning Unit and give it more independence from 19M the Joint Board. Today's comments from councilmembers were very appropriate. The Joint 200 Board was disrespectful to the Planning Unit when it denied the Planning Unit funding at the 21M beginning. There must be a better process among the Council, the Planning Unit, and the 22M Joint Board. 230 24M Browne stated the original water resource inventory area (WRIA) plan identified a 25M number of caucuses. Some of those parties decided not to participate. He would like to 260 know which parties are currently represented and how those representatives are chosen. 27M He would also like to know why it costs $3,000 to facilitate each meeting. 28F?] 290 Brenner stated Gary Stoyka is the Public Works staff person on the Planning Unit. 30M He would have been the perfect facilitator. 310 32M Browne stated he wants to make sure the process is efficient and the representatives 33M will represent the individual groups. 34(] 35M Brenner stated she's attended all but one meeting. The individual groups that are 36M participating are good representatives. The interests are very different. 370 38M Kremen stated the only caucus that is not currently represented is the environmental 39M caucus, which chose to not participate. The Tribes also do not participate. The process for 400 choosing caucus representatives is different for each caucus. 41F?] 42M Brenner stated she hasn't heard any complaints about the representatives who are 43M participating. 44(] 451] Mann stated he's concerned about the confused mixture of processes for assigning 460 caucus representatives. It may provide an opportunity for folks to undermine the work 47M product by claiming they weren't included. He asked Mr. Gibson's opinion on the different 481] processes for selecting caucus representatives and if some of these processes are valid. 490 Gibson stated he can't answer that question. Some caucus are naturally amorphous. He 50M doesn't worry about it. It's the nature of process. Those who are interested and motivated 51M will show up and participate. 52F71 Public Works, Health, and Safety Committee, 3/11/2014, Page 2 1E Mann stated he is concerned about whether it's okay to have an amorphous caucus 20 with an unclear representative selection process. Gibson stated the Planning Unit is a group 30 that adopts a plan by consensus, and then forwards the plan through the Joint Board and to 41M the County Council, which makes the decision. 5(] 60 Kremen stated they want from the Planning Unit an opportunity for Whatcom County 7M government, which is the sole entity that represents the people from Whatcom County on 8M the Joint Board, to deal with these water issues. The Joint Board doesn't have rule- making 91] authority and aren't elected officials. This is just to give the Council an opportunity to 10M better represent the people who are unrepresented on the Joint Board, except for the 111] County Executive. They're trying to make too much of what they expect from the Planning 121] Unit. It's just an opportunity for the Council and Executive to get a good grasp of what the 13M greater community wants out of this process. Also, he agrees that the $3,000 facilitator fee 140 per Planning Unit meeting is too much. Staff can do it, but at a lesser cost. A paid 15M facilitator isn't essential. 16F?] 170 Browne asked what initiated the reformation of the Planning Unit. The ultimate end 18M product comes to the County Council. Gibson stated a number of members of the Planning 19M Unit said they aren't finished with their work, and they wanted to participate in ongoing 200 decisions. The Council heard that input from a number of Planning Unit members, and 21M decided to reassemble the Planning Unit. The particular trigger was the desire for more 22M input into the lower Nooksack strategy, a decision that was made at the Joint Board level. 230 240 (2:04:35 PM) 25F?1 26M Brenner stated there will be a problem getting a consensus on the Planning Unit to 270 adopt a majority or super- majority vote. If people on the Planning Unit do not want it to 28M work, they won't agree to it. She's bothered that the Department of Ecology is inserting 290 itself into the process. They are only to provide technical assistance. The Planning Unit is 30M supposed to be a local organization. 31F?1 320 Jack Louws, County Executive, stated the number of State agency representatives on 33M the Planning Unit shall be determined by the initiating governments. That was decided in 34M about 1998. Department of Ecology is at the table. The Planning Unit has a role under 350 State law. He doesn't believe the Planning Unit has a role for implementation or funding of 362 the plans. A facilitation fee of $3,000 per meeting is expensive. It's best for the Planning 37M Unit to have an outside facilitator at this time, based on the number of opinions in the 380 community and on the Planning Unit. He's instructed Gary Stoyka to be a member, not 39M facilitator, of the Planning Unit. The County has a seat at the Planning Unit table. The 40M administration can support the Planning Unit in terms of facilitating meetings. It's difficult 410 to have the same person facilitate and participate in the meetings. The County is obligated 42M to see if the Planning Unit can be successful. If the Planning Unit doesn't change its 43M operating rules, they will spend hundreds of thousands of dollars with little to no work 440 product. He recommends allowing the Planning Unit to become a productive body. If they 45M can't, the County can support the Planning Unit in a more limited fashion. The County 461] Council said it would provide direction to the Planning Unit. He encourages the Council to 470 do that. If the Council wants monthly meetings related to what's happening on the Joint 48M Board, he will provide it. Ultimately, the administration and Council must work toward 492 getting the Planning Unit and Joint Board back on track. Hire the facilitator for another 50M couple of meetings. If he doesn't see anything productive, he won't recommend further 51M funding. 521] Public Works, Health, and Safety Committee, 3/11/2014, Page 3 p 1E Brenner stated one Joint Board member on the Planning Unit keeps bringing up the 20 same issues repeatedly. The Planning Unit is more important than the Joint Board, which 30 should be a facilitator for funding the Planning Unit, rather than it's own kingdom. Most 41M Planning Unit members want to be productive. Louws stated they do want to be productive, 51N but are inhibited by their current operating rules. 60 71N Kremen stated the Joint Board structure includes the Lummi Nation and Nooksack 81N Tribe, which represent about five percent of the population of Whatcom County. The City of 91a Bellingham represents about 40 percent of the population. The Public Utility District (PUD) 10M also represents only a portion of the county residents. The County Executive represents 111N everyone. The Planning Unit is the conduit to the constituency that hasn't had adequate 12M representation on the Joint Board. The Planning Unit should be effective so the Executive 131N can represent the citizens. The process has been difficult, but it is a process that must be 140 nurtured to best represent the citizens. 15r?] 16M Louws stated the Planning Unit will be most successful with functioning operating 170 procedures that are democratic and inclusive. The Planning Unit has operated for six months 18M now. The County has asked only for recognition of membership, a work plan, and a budget. 19M The County hasn't received those three things. The Planning Unit can be an asset if 200 procedures change. 21P] 221N Brenner moved to recommend to the full Council to make a recommendation to the 230 Planning Unit to use a system of majority rule. 24P] 25M Kremen suggested a friendly amendment to allow the Planning Unit to produce a 260 minority report in addition to the majority position. It will provide an opportunity for the 271N Executive to understand the different opinions. 28F?] 290 Brenner accepted the friendly amendment. 30F?] 31M The motion carried by the following vote: 32M Ayes: Brenner, Mann and Kremen (3) 33M Nays: None (0) 340 35M Linda Twitchell, Building Industry Association, stated there is a motion at the 36M Planning Unit to do what they're suggesting. The Planning Unit has to change its mode of 370 operation. If the Planning Unit members aren't willing to change, the County Council may 38M encourage the Joint Board members to vote for it. 39Pl 400 Greg Brown stated the Joint Board can't get a meeting together because they were 41M operating without consensus. Don't force the Planning Unit to do what the Joint Board 42M couldn't do. It's insulting. The Joint Board couldn't do it because the Tribes wouldn't agree 430 to it. They are not helping the Planning Unit grow. They're trying to kill it. 44F?1 451a Skip Richards, Planning Unit Nongovernmental Water Systems Caucus member, 460 stated the Planning Unit decision - making is set by State statute. The rules for the Planning 47M Unit, when first adopted, are for all decisions to be made by consensus. The current 481a proposal is to change to majority rule for procedural issues, and follow the statute for 490 everything else. The Joint Board was formed originally to permit the Tribes to participate in 50M the WRIA 1 project. The interlocal agreement just says the purpose is administrative. Now 51M they call themselves a policy board. The County Council hasn't let go of it's policymaking 52M authority. 53M Public Works, Health, and Safety Committee, 3/11/2014, Page 4 1E Regarding the budget, it takes time to get a budget together after they've been shut 20 down for four years. Regarding the facilitator cost, the facilitators spent many hours before 30 and after meetings doing a lot of work. The cost is the going rate. The proposal is to make 41M the County the lead agency that can decide whether or not to hire a facilitator. Their rules 5M are ready to accept a structure that eliminates the need for a facilitator, but the County 60 must play it's role. 7P1 8M The Planning Unit is the only body recognized by statute to deal with the WRIA 1 91a watershed management project, but the Joint Board was created to involve the Tribes. 101M Those two entities should be working together. They worked together before because of the 11M WRIA 1 staff team, which drove the Planning Unit process. They prepared the agendas and 12M managed the Council's surface water work sessions, which is where the Council was briefed 13M on the Planning Unit, Joint Board, and staff team. Those meetings haven't stopped, they've 140 just shifted the focus to other matters. 15P] 16M The draft work plan has the review of the operating rules. They just need to make a 170 decision. The group has produced a 100 -page review of the several thousand pages of 18M documents that have been generated throughout the process, the document he sent this 19M morning, and the work plan. 200 21M He referenced the structure and function document of March 1999 and stated it is 22M the original document that the initiating governments issued that formally started this 230 process. The last formal step was adopting the Planning Unit business rules, done in 24M December 1999. Mr. Gibson indicated then and now that the Planning Unit has its own legal 25M status, and they cannot escape the requirements of subsection 90.82.130 of the Act, which 260 puts the Planning Unit in charge of final review and approval. 27P] 280 Mann asked what the statutory authority for review and approval means. Richards 290 stated that for a WRIA 1 watershed management project plan to have legal status, it must 30M be reviewed and approved by the Planning Unit and Joint Board. The plan becomes 310 something that has a binding effect and can be implemented. 32P] 33P] Mann asked if the Joint Board has to approve it, and it becomes binding with the 340 force of law without County Council approval. Richards stated the Planning Unit and Joint 35M Board have to agree. Then it comes before the Council. At that time, the Council has only 36M two options. The Council can accept it as is or send it back with recommendations for 370 changes. The County cannot unilaterally alter the document. It's a partnership among 38M many different entities, and none is dominant over the others. 39Pl 400 Mann asked what happens if the Council sends it back to the Planning Unit and the 41M Planning Unit cannot agree. Richards stated he agreed to the plan, but it's not being carried 42M out. He raised technical issues with the plan during the January 2009 Planning Unit 430 meeting. At the following staff team meeting in February, they brought up his issue and 44M wanted to get rid of the Planning Unit. If they can't agree how to move forward, there is a 451a section in RCW 90.82.130 that says the process terminates. If the Council wants to go 460 forward with the Joint Board, call it something else, and his name won't be on it anymore. 47M RCW 90.82 for watershed planning is voluntary. 481a 490 Mann stated he was told the Planning Unit is a State recognized authority with the 50M authority to establish instream flows. Richards stated the Planning Unit can recommend 51M that the Department of Ecology engage in rulemaking on instream flows. It can't impose 52M instream flows. 53M Public Works, Health, and Safety Committee, 3/11/2014, Page 5 P1 1E Mann asked if the Planning Unit has any independent authority that does not come 20 through the County Council. Richards stated the instream flow recommendation does not 30 come back to the County first, but the County sits on the Planning Unit. The 4M recommendation would go to the Department of Ecology. 5P1 60 Mann stated he doesn't worry that they don't have a formal mechanism for 7M establishing caucus representatives because they don't have direct, independent rulemaking 81N authority. Richards stated that during the original caucus formation process, there are 91a records about caucus formation. Most recently, the caucuses were left on their own to do 10M whatever. The County required that the representative submit a list of documents and 11M answer questions. The representatives complied. 12F?] 13M (2 :40:33 PM) 140 151M Kremen stated the Planning Unit can make instream flow recommendations, but it's 16M moot if the Lummi Nation and Nooksack Tribe don't agree. 170 18M Bob Carmichael, Water District Coalition representative, stated the governmental 191N entities on the Planning Unit are allowed to make a recommendation on instream flows to 200 the Department of Ecology. It's not a recommendation of the entire Planning Unit. The 21M Planning Unit has statutory authority. The governmental units sitting on the Planning Unit 22M have authority. It's critical to move forward if there is to be any local input on instream 230 flows. 24P] 25M The Council's policy involvement in WRIA goes back to Resolution 99 -050. He read 260 from that resolution. The process has since lost its way. 27F?1 28E A facilitator cost of $3,000 per meeting could be reduced, but it's little compared to 290 what has been spent by the County overall. Ask what the County has to show for the $5.5 30M million it has spent on WRIA. From the perspective of the water district coalition, the 310 Planning Unit is the only process available to be involved. Take the next step to reaffirm 322 the County's commitment under resolution 99 -050 to have periodic updates. There will be 33M better control over expenditures. There are certain points in which the County has been in 340 violation of in the past. He's interested in moving forward. Determine how they will have 352 better fiscal control at the County level and bring the Planning Unit into the process. 36M Reaffirm the resolution and have regular policy reviews. 370 382 Mann stated that if the Planning Unit changes its rules to a simple- majority, it's 39M conceivable some of the entities on the Planning Unit not vote for something, and then be 400 expected to make a request for rulemaking from Ecology. Carmichael stated the Planning 41M Unit can't change the State statute, which outlines the mechanism for requesting 42M rulemaking. The Planning Unit could independently vote for a request for instream flow 430 setting or not. Also, he suggests that the Council consider asking for Planning Unit review 44M and comment on Joint Board policy and financial decisions. 4517 460 Louws stated he commits to putting the WRIA 1 Planning Unit and Joint Board 47M update on the monthly Council surface water work session meetings. They can't change 482 rules specifically outlined in State law regarding Planning Unit responsibility. It's procedural 490 and administrative. He's pleased the process is underway. 50M 510 Lorraine Newman stated the well planner group meetings have been announced on 52M the radio, websites, and through other methods. The information for the public is out there. Public Works, Health, and Safety Committee, 3/11/2014, Page 6 P1 1m 20 3M 4M 51a 6M 7M 81a 91a 10F?1 11m 121a 13M 140 15F?] 16F?] 17M 18F?] 191a 200 21P] 22M 230 241a 25F?] 260 271a 280 290 30F?] 31F?1 32r?1 331a 340 35r?1 36F?1 370 38r?1 39M There was a Joint Board meeting that didn't have a quorum, and they simply picked someone sitting in the audience so they can have a quorum. Treat the entities equally. Karen Brown, Private Well Owners Caucus, stated they have a list of well owners with no contact information. They have spread the word voluntarily throughout the county. The well owners elected her to represent them at the caucus. She attended a Joint Board staff meeting, which approved $40,000 per year for their facilitator. There is no comprehensive list of well owners, which totals between 10,000 and 30,000 people around the county. Mann stated he doesn't question anyone's legitimacy. His concern is whether it can be argued there is an arbitrary or inadequate method of selecting the caucus representatives, which could undermine any future decisions. He wants to avoid that situation. He appreciates the work of everyone who serves. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 2:56 p.m. ATTEST: , Council Clerk -, Minutes Transcription0 p WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Barbara Brenner, Committee Chair Public Works, Health, and Safety Committee, 3/11/2014, Page 7