HomeMy WebLinkAboutNatural Resources July 12 20051
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
WHATCOM COUNTY COUNCIL
Natural Resources Committee
July 12, 2005
Committee Chair Sharon Roy called the meeting to order at 9:30 a.m. in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Dan McShane None
Seth Fleetwood
Also Present:
L. Ward Nelson
COMMITTEE DISCUSSION
1. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY CRITICAL
AREAS ORDINANCE, WCC CHAPTER 16.16 — CRITICAL AREAS AND
ASSOCIATED PROVISIONS OF WCC TITLE 2, CHAPTER 2.33, AND WCC
TITLE 20 (AB2005 -226)
Jeff Chalfant, Senior Planner, submitted a memo (on file) dated July 11, 2005
regarding recommended amendments. It contains a few clean up items. The
proposed changes, which respond to concerns from councilmembers and members
of the public, are highlighted in yellow.
The first item is to section 16.16.225 regarding regulated activities. If the
County is going to allow alternative mitigation approaches, it may result in
alternate critical areas that deviate from the code. The code needs to allow for
that. Also, add "or watershed based management plan."
McShane moved to amend 16.16.225(B), "(6) Alteration is associated with
an alternative mitigation plan or watershed based management plan approved
pursuant to 16.16.260(E)."
Motion carried 2 -0 with Fleetwood absent.
Chalfant stated the next change is to section 16.16.260(E). This correction
addresses concerns from Mr. Tull and Mr. Spencer on the functioning of this section.
These are positive changes that will streamline the process and clarify roles and
responsibilities. Reference the definition in this code for efficiency and accuracy.
Nelson asked who designates the decision maker. Chalfant stated the Council
decides, based on the procedure in the code.
Natural Resources Committee, 7/12/2005, Page 1
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Roy moved to amend 16.16.260(E)(3) and its subsections (b) and (e), as
shown in the memo, with one change, "...requirements of this chapter when
approved by the Teehnieal "dministr-ater designated decision maker as per the
County Code. The process for...."
Elaine Spencer, Graham and Dunn, Seattle, read subsection
16.16.260(E)(3)(c). It was intended to spell out the decision makers in the
process.
Motion carried 2 -0 with Fleetwood absent.
McShane moved to amend 16.16.260(E)(1), "The County shall facilitate
review and /or approval of an alternative mitigation plan for major development
pursuant to WGG 20 as defined by this chapter, a Planned Unit Development..."
Motion carried 2 -0 with Fleetwood absent.
Chalfant stated Councilmember Brenner was concerned about the language in
the next section in the memo, 16.16.275(A). Staff agreed to clarify the intent of
the section.
Nelson asked what a person would have to do to be able to use a barn for a
home business if it's located in a critical area, for example. Chalfant stated the
person would have to do nothing related to critical areas. If the barn is structurally
sound and allowed by underlying zoning, critical areas don't regulate it. It is a
zoning issue.
Roy asked the reason for the language in the first place. Chalfant stated the
intent was to allow mitigation by removing the building and restoring the area if
there were a dilapidated building in a buffer.
Nelson asked if it can be appealed to the Hearing Examiner and repaired.
Chalfant stated it can be.
Roy moved to amend 16.16.275(A), "...If a non - agricultural non - conforming
use is intentionally diseentin, � abandoned for a period of 12 months or more,
then any future use of the non - conforming building, land or premises shall be
consistent with the provisions of this chapter, OF the non cenfeffning building er use
shall be r-emeved and the er;tmeal area ef buffer- r-ester-ed on aeeeFdanee with thus
ehapte ." and to amend 16.16.275, "(E) When a development permit is sought for
a parcel containing a nonconforming building or structure that has been
intentionally abandoned for a period of 12 months or more, the Technical
Administrator may require removal of the nonconforming building and restoration of
the critical area or buffer in accordance with this chapter as a condition of permit
approval."
Motion carried 2 -0 with Fleetwood absent.
Natural Resources Committee, 7/12/2005, Page 2
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Chalfant stated the next section will allow locally prepared plans to be used
for the time travel analysis or emergency evacuation plan for special occupancy
structures or critical facilities to be constructed in lahar hazard areas. Also, add a
section to allow single family developments to be permitted in lahar hazard areas.
Roy moved to amend 16.16.350(C)(1) and (2), "...professional or local,
state, or federal agency...." and to amend 16.16.350, °(E) Single- family
developments and duplexes may be permitted in lahar hazard areas subject to WCC
16.16.320(A)."
Motion carried 2 -0 with Fleetwood absent.
Margaret Clancy, Parametrix, stated the proposals for 16.16.630 in item C
address the standard buffer width being based on the intensity of the adjacent land
use and the functions and values provided by the wetland, unless a lesser level of
impact is appropriate. The information provided by the applicant shall demonstrate
that the proposed land use will have a lesser impact on the wetland than that
contemplated under the buffer standard that is otherwise appropriate. It's the
applicant's responsibility to demonstrate that. The second revision is to break out
the buffer tables into a second paragraph. The last change to that section is to
include additional guidance from Ecology that addresses the big jump in buffer
widths based on score.
Roy moved to amend:
• 16.16.630(C), - ...provided by the wetland—.-44un less ... provided by the
applicant. Information provided by the applicant shall demonstrate
that the proposed land use ... outlined in Article 8. There
:" and "(D)
There are three (3) possible standard buffer scenarios listed in the
following tables:" and
• 16.16.630, "(E) Because there is a large increase in width associated
with a one point increase in the habitat score, the Technical
Administrator may deviate from the buffer requirements outlined in
16.16.630(D) and increase the buffer widths in increments of 20 feet
for every one point increase in the habitat score in accordance with
guidelines developed by the Department of Ecology in Wetlands in
Washington State - Volume 2: Guidance for Protecting and Managing
Wetlands (Publication #50 -06- 008)."
Clancy stated the buffer widths are predominantly based on the habitat
score. It provides increased flexibility.
Nelson asked if the recommendation is to incorporate the Ecology system.
Chalfant stated they are adopting the Ecology rating system by reference. The
ordinance contains additional guidance. The wetlands biologist would come up with
Natural Resources Committee, 7/12/2005, Page 3
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
a score based on the Ecology rating system, which has a separate score for wildlife
points.
Nelson asked if the technical administrator still has flexibility on mitigation.
Chalfant stated there are provisions for allowing buffer reductions, buffer
averaging, and alternative mitigation approaches.
Nelson stated he's not sure if this will work. Clancy stated the property
owner will have more flexibility. This allows the system to have some subjectivity.
It is more fair and balanced.
McShane stated it might also take some pressure off the attempt to push the
score down. Clancy stated the buffer standards are grouped as high, medium, and
low. The change recognizes that there isn't a huge jump in the value of a wetland
with one more point.
Nelson asked the impact of 16.16.630(C). Chalfant stated low impact
development provisions may result in a lesser impact. If the owner is able to
address the impacts of the development on the buffer functions, there may be less
impact. The impact is assessed based on the definition in the Ecology guidance
document, which is incorporated by reference in this proposed ordinance.
However, if someone can demonstrate that other mitigation will reduce the impacts
of the proposal, a smaller buffer may be allowed. This is an alternative to going
with those definition every time.
Clancy stated the Planning Commission recognized that not all high intensity
land uses are created equally. A moderate residential development would fall into
the same category as something like the Bellis Fair mall development. This takes
into consideration the intensity of the use and allows the technical administrator to
mitigate the effects on adjacent wetlands.
Motion carried 2 -0 with Fleetwood absent.
Clancy stated the next change is to the standards for wetland mitigation.
The changes specify the replacement ratios that people need to follow to mitigate
for wetland impacts. They have added a few clarifications. It acknowledges that
the mitigation ratios will not apply to mitigation banks, and they will establish a
crediting and debiting procedure when they establish a bank. These ratios may not
be appropriate and apply to a mitigation bank. The substitute language for
subsection (E) adds flexibility. If people have a track record of successful
mitigation, the County will consider it as insurance against potential failure, which
drives the higher ratios. There may be other considerations for not meeting the
ratio.
McShane moved to amend:
• 16.16.680(C)(3), "The mitigation ratios noted above shall not apply to
mitigation banks as defined by this chapter. Credit and debit
Natural Resources Committee, 7/12/2005, Page 4
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
procedures Replacement Faties for mitigation banks shall be
determined in accordance with the e_A mitigation banking
provisions outlined in WCC 16.16.260(F)." and
• 16.16.680(E), to replace according to the memo "SEE THE MEMO"
Roy stated she is uneasy that they are delineating a lot of ways to get around
mitigation. She is concerned about that. Chalfant stated the provisions aren't
meant to help people get around mitigation, but to allow flexibility to folks who
have demonstrated success in the past. Some of those assurances in the large
mitigation ratios may not be necessary.
Roy stated she respects staff's analysis. She's also concerned that the
technical administrator has a lot of responsibility. Chalfant stated the technical
administrator has less responsibility in this ordinance than the existing ordinance.
The existing ordinance is wide open.
Nelson asked how they delineate the categories. Clancy stated the categories
are based on the use of the Western Washington Wetland Rating System.
Chalfant stated that the Western Washington Wetland Rating System is
referenced in section 16.16.610(D). The actual delineation is in subsection .610(B).
Clancy stated the delineation procedures haven't changed. They are required
to use the State and federal manuals. That practice will continue.
Nelson asked if category IV wetlands have the same mitigation requirements
as before. Clancy stated they do not. The existing regulations only specify the
maximum ratio of 6:1. It does not specify a minimum ratio. The mitigation ratios
don't pertain to the intensity issue.
Nelson asked if seasonal wet spots are classified as category IV wetlands.
Clancy stated they could be.
McShane stated there are minimum size requirements. Clancy stated they
are exempt from County regulations if the wetland is less than one -tenth of an acre
in size.
Nelson asked how to enhance a wetland with no function. Clancy stated
people could plant trees and shrubs, remove invasive species, or screen it from an
adjacent land use to improve habitat value. It's usually the preferred approach.
Nelson asked if enhancement would change a class IV wetland to a class III
wetland. Clancy stated it might. The technical administrator has flexibility to
adjust buffer requirements in mitigation instances.
Chalfant stated it would be approved in an entire package.
Natural Resources Committee, 7/12/2005, Page 5
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Roy stated this doesn't kick in unless the property owner decides to impact
the wetland. Clancy stated that when a mitigation plan is developed, they have to
define the performance standards and then check on them. However, they won't
make someone move their house if the performance standard is met so well that it
increases the category and the buffer requirement.
Francis Jones, 515 White Cap Road, stated the Ecology guidance manual has
a provision for making temporal loss equal to the area of impact. The large ratio,
plus a performance bond requirement, plus ten -year monitoring is excessive. Quite
a few wetlands would be upgraded from category III to category II with the new
standards. The ratios should be lower since a performance bond is required.
(Clerk's Note: End of tape one, side A.)
Clancy stated that in her experience, wetlands tend to go down in class with
the new rating system. In fact, the State looked at over 100 wetlands statewide
and determined the changing categories. The State calibrated the rating system so
there wouldn't be a universal jump in category.
Nelson asked about the ratios being higher than necessary because there is
already bonding and other mitigation. He asked if that is typical. Clancy stated it
is. She doesn't know of any jurisdictions that have one or the other. Bonding
allows for adaptive management and addresses a failure to meet the standards.
That is integral to having a successful mitigation site.
McShane stated the new subsection (E) allows flexibility within the ratios.
Clancy stated that new section was created in response to the previous testimony
from Ms. Jones.
Roy asked if the regulations can assume that the technical administrator will
be sensitive to this unusual situation of a wetland moving up in category. Clancy
stated they won't always know. There isn't an inventory of the previous category
for all wetlands. The technical administrator will be sensitive to it.
Roy stated the property owners would probably tell them what the previous
category was. She assumes it would be factored into the analysis. However, the
analysis needs to be based on the real function of the wetland.
Chalfant stated other wetland consultants who have used the rating system
have said they're not getting the large wildlife scores that drive the big buffers, and
they're seeing things remain the same. In their view, there won't be a huge jump
in buffer size.
Clancy stated that in subsection (E)(1), as long as they get to a goal of no
net loss, the rest of the ratio can be accounted for in some combination, including
enhancement. The basic goal is no net loss, a one -to -one replacement. There are
other ways to get to a higher ratio.
Natural Resources Committee, 7/12/2005, Page 6
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Nelson asked where the ratios came from. Clancy stated they reflect a
variety of factors. They are recommendations from Ecology's guidance document.
Motion carried unanimously.
Bob Tull, attorney, referenced section 16.16.275 regarding nonconforming
uses. These are crucial sections that could affect a fair number of folks. He asked
if subsection (D) means that the shoreline program will govern those three or four
paragraphs. This ordinance imposes a critical areas buffer on saltwater. There are
many houses that are within 150 feet of the high water mark. Amend subsection
(D) " ... _fin governed by...."
Chalfant stated the intent is that those nonconforming uses would be
governed by the shoreline management program. There are different provisions for
those areas.
Fleetwood moved to amend 16.16.275(D), "...fie governed by...."
Chalfant stated the existing critical areas ordinance has a 100 -foot buffer on
all marine shorelines. Critical areas ordinance buffers on marine shorelines is not
new. The technical guidance and science behind marine shoreline buffers dictated
the need for a larger buffer.
Motion carried unanimously.
Nelson asked if shorelines are referenced at the beginning, in the purpose
and intent section. He asked if it would be confusing to the public knowing there is
more than one regulatory practice that will supercede another. Chalfant stated it
doesn't supercede unless it specifically says so. The critical areas ordinance
regulates all critical areas, including shorelines. The shoreline management plan
also regulates shorelines. The legislature has passed some new provisions that say
they need to integrate the two ordinance as they are updated. Staff is working on
that. Even though they will integrate the two, there is some deviation between the
critical areas ordinance and shoreline management plan. They have slightly
different mandates. When staff is done with the shoreline update this year, those
issues will be resolved.
Clancy stated a number of references in the critical areas ordinance point to
the shoreline master program.
Roy stated the public living on shorelines are aware. They are more likely to
go to the shoreline rules than the critical areas rules.
Clancy stated the regulations only apply at the time of a development review
or permit application, when the people work with the County.
Natural Resources Committee, 7/12/2005, Page 7
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
McShane stated it could be advantageous to be under the shoreline rules
rather than under just the critical areas ordinance. They have different goals.
Chalfant stated that when the Council updates the shoreline program, it may
need to do a few updates of this critical areas ordinance.
Chalfant stated they also need to strike all the footnotes related to changes
that have been made and guidance.
Roy moved to strike the footnotes that are in the draft versions of the
ordinance.
Motion carried unanimously.
Chalfant referenced subsection .270 on reasonable use and variances. After
reviewing the document from staff, they realize that in subsection (A)(2)(i), the
language needs to be amended. The Planning Commission added the word
11 successful." This is the only place in the document where "successful" has been
added. There is monitoring and mitigation requirements that ensure successful
mitigation. Saying that someone has to provide successful mitigation in order to
have a reasonable use approved puts the cart before the horse. It is also in
subsection .270(B)(4). It will cause problems for administration.
Roy moved to amend .270(A)(2)(i) and .270(B)(4) to strike "successful."
Motion carried unanimously.
Chalfant referenced subsection 16.16.280(G) about the Supreme Court.
Strike "if not before."
Fleetwood moved to amend section 16.16.280(G), "Any issue not raised—,imf
net " ,e7 by the time of appeal...."
Motion carried unanimously.
Clancy referenced section 16.16.510(C) and stated it should be revised,
'...shall be designated and classified as follows:" and in subsection 16.16.510(C)(2),
...shall be designated considered highly susceptible critical aquifer recharge areas."
Roy moved to amend 16.16.510(C), "...shall be designated and classified as
follows:" and in subsection 16.16.510(C)(2), "shall be designated Considered highly
susceptible critical aquifer recharge areas."
Motion carried unanimously.
Chalfant referenced section 16.16.250(C). There was a concern about the
implications of the new language. Everyone on staff wants to visit a site early in
Natural Resources Committee, 7/12/2005, Page 8
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
the process. However, the concern is what happens if an applicant doesn't reveal
there are critical areas, and the staff doesn't visit the site, through no fault of the
staff.
McShane moved to amend 16.16.250(C), "...efficiently and visit the —site
eaF!y in the pr-eeess to make one...." It comes down to a budgetary matter of
making the Planning Department efficient enough to make these determinations in
a timely manner.
Nelson suggested a friendly amendment, "The Technical Administrator
shall act efficient4y be responsible, in a timely manner, to make one of the following
determinations...." That covers the concerns that staff gets out there to make a
determination, but the technical administrator can determine workload.
McShane accepted the friendly amendment.
Motion carried unanimously.
Chalfant stated consider changes to Title 20 and Chapter 2.33. He submitted
Exhibit 2 (on file). These changes were distributed with the original packet the
Council received. The changes to the permit review procedures in 2.33 and Title 20
are to facilitate implementation. He read the changes from the handout.
Roy moved to approve the amendments to Whatcom County Code (WCC)
2.33 as shown in Exhibit 2 to the ordinance.
Motion carried unanimously.
Chalfant read the proposed changes to Title 20.88.
McShane moved to approve the proposed amendments to WCC 20.88 as
shown in Exhibit 2 to the ordinance.
Motion carried unanimously.
Chalfant read the proposed changes to WCC 20.92 in Exhibit 2 to the
ordinance.
Roy moved to approve the amendments to WCC 20.92 as shown in Exhibit 2
to the ordinance.
Motion carried unanimously.
Chalfant read the changes to the Title 20 Zone Districts as shown in Exhibit 2
to the ordinance.
Natural Resources Committee, 7/12/2005, Page 9
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
McShane moved to approve the amendments to the Title 20 Zone Districts
as shown in Exhibit 2 to the ordinance.
Motion carried unanimously.
McShane referenced WCC 16.16.320 regarding alluvial fan hazard areas.
He's fine with it the way it is.
Chalfant stated they should note that there are areas on an alluvial fan that
may not be hazard areas. Development would be allowed.
Roy stated she still has discomfort with the habitat connectivity issue. She
likes the idea of an overlay for sensitive habitat connectivity. That could be a
starting place to analyzing connectivity. Don't let this issue drop. The effect of
connectivity for wildlife is a growing issue in the county.
McShane stated the Chuckanut Wildlife Corridor is valuable to Whatcom
County. He suspects there are other areas that people haven't paid attention to
yet. There is an idea that connectivity be a program beyond critical areas. An idea
is to use conservation futures funds for those lands.
into it.
Roy stated she agreed. Given the tremendous growth in the county, look
Roy moved to recommend the ordinance, as amended, to the full Council.
Motion carried unanimously.
Roy thanked staff for their hard work on this ordinance.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 10:58 a.m.
Jill Nixon, Minutes Transcription
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Natural Resources Committee, 7/12/2005, Page 10
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Dana Brown - Davis, Council Clerk Sharon Roy, Committee Chair
Natural Resources Committee, 7/12/2005, Page 11