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HomeMy WebLinkAboutNatural Resources June 7 20051 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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 June 7, 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: Seth Fleetwood None Dan McShane Also Present: Sam Crawford L. Ward Nelson COMMITTEE DISCUSSION 1. DISCUSSION REGARDING TUBING ON THE SOUTH FORK OF THE NOOKSACK RIVER (AB2005 -249) Bruce Roll, Assistant Director, stated this discussion has been productive so far. The community and Council asked to have a discussion with the State and federal agencies on this issue. He met with the Department of Fish and Wildlife. Right now, they must gather information and facts from those agencies to understand each jurisdiction's role. Today, get issues on the table and hear from people on the south fork to come up with an action strategy for moving forward. Three issues on the table relate to underage drinking, illegal parking, and inappropriate parking. Collectively, they influence the problem. Think of all three of those things together when developing a strategy to move forward. Captain Bill Hebner, State Department of Fish and Wildlife (WDFW) Enforcement Officer, introduced others with the department and the U.S. Forest Service. Dr. Roll told him this is a fish related issue. It's not the first time he has been asked to address the issue of fish harassment on the South Fork of the Nooksack River. He will address the authority of the Fish and Wildlife Commission, which only has the authority to promulgate regulations that pertain to the time, place, and manner of the a taking or possession of fish and wildlife. If they were so inclined to protect fish, they could not prohibit swimming or rafting. They can prohibit fishing from a raft or inner tube. The commission can't restrict general recreation. The State legislature has the authority to do that. The State legislature could intervene here and help them on the South Fork of the Natural Resources Committee, 6/7/2005, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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. Nooksack River. It's such a small area that it's not a high priority for the legislature. He's talked to Sheriff Elfo on the issue about a potential County ordinance. However, the Sheriff already has an overtaxed workload. He doesn't want to add an additional burden. If the County Council takes action, he would volunteer, with the Sheriff's permission, to coordinate the enforcement effort for this regulation. He would include a large information and education campaign. That is essential to address the problem. He would coordinate the volunteer effort and supply a commissioned officer presence. He has commitments to help from the tribes, the National Marine Fisheries Service (NMFS) with its federal special agents, and volunteers and public information office. NMFS will support some type of protection measures. There is a strong coalition on this problem amongst law enforcement agencies. Even though he has general statewide authority, he doesn't have authority to enforce a County ordinance. However, he has partnered with Sheriff Elfo, who issued him and other officers County commissions. Therefore, they would have the authority to enforce those specific County ordinances. He already has authority to enforce State law, which includes things such as underage drinking. He will work with Sheriff Elfo toward a solution. McShane stated that given the fact that Capt. Hebner put forward an effort on this issue before this meeting, and given Capt. Hebner's attendance today, it seems WDFW takes this as a serious impact on chinook runs on the south fork based on what they see for fish interference. Hebner stated he does. The fish are under stress already from high temperatures and diminished water flows. The floaters and swimmers are an additional stress. Millions of taxpayer dollars are going into salmon recovery. It's shortsighted to not allow the fish to get the eggs into the gravel and allow the eggs to die before they mature. He's been told by enough biologists that this proposal is needed. Phil Kincare, U.S. Forest Service, stated he permits special use operations for commercial operators, such as whitewater rafters and bald eagle float trips on various rivers. There is a closure to boating on the north fork of the Nooksack River during spawning times. The Puget Sound chinook was listed under the Endangered Species Act (ESA) in 1999. They were advised that spawning on the north fork of the Nooksack River coincided with the rafting season. They were advised to consider a rafting closure during the spawning season. They had a meeting with the rafting outfitters and guides to advise them of the possible closure of the Nooksack River and loss of access during the spawning period. In 2000, the advice from WDFW technicians indicated there was interaction between the boats and the redds. Spawners were observed to have left the redds. On the advice from WDFW, they agreed to close the river. Natural Resources Committee, 6/7/2005, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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. In retrospect, they didn't provide much notice to the rafters and companies. The outfitters were surprised that they would consider closing the river. After that experience, they developed a plan that included news releases, better public education, and an enforcement plan. The enforcement plan included monitoring, with enforcement assistance from NMFS. The reality is that they don't have the enforcement presence called for in the enforcement plan. The closure remains in effect throughout the winter, or until the fish emerge from the eggs. They don't have someone stationed in Glacier all the time. There are probably kayakers during the closure period. They've done this annually each August. The closure was originally timed to allow boaters as much access as possible. They waited to close the river until they observed some interactions. From a business standpoint, the outfitters preferred a set closure date. Therefore, they set the closure date at the second Monday of August. That is probably what they'll do from now on unless there is a significant change in the weather. Roy stated she understands that the north fork has more commercial rafting, and the south fork has individuals who decide to take an inner tube and go down the river. She asked if they would affect any commercial outfitters on the south fork. Kincare stated they wouldn't. The north fork of the Nooksack River has more technical, difficult waters to raft. Roy asked the impact on the small businesses since the closure on the north fork of the river. Kincare stated some businesses were affected economically a little bit. The commercial whitewater rafting business doesn't go much beyond Labor Day anyway. Roy asked if they have seen any increase in hatched fish. Kincare stated the WDFW has that information. The fish have a four -year lifecycle. He's not sure of the return rate since this closure began. Also, there are other factors affecting the fish. Steve Seymour, WDFW Watershed Steward, stated they're talking about trying to get relief on the south fork of the Nooksack River from the inner tube riders. About 500 riders float down the river on a sunny day. The south fork has listed chinook that spawn most in the last two weeks of August and early September, further up the river. Fish will hold in the area from Acme to Van Zandt. The river water temperature is about 70 degrees. The south fork is missing a lot of deep pools and cover. South fork restoration would replace a lot of the wood to create those deep pools and cover. In 20 or 30 years, they will have that habitat back, and they can revisit this issue. in the interim, give the fish as much relief as possible. There is not a lot of good sound science showing dead fish related to this activity. However, science shows fish are susceptible to stress and have no place to hide. Few fish are left in the areas. The tubers are getting out of the inner tubes and swimming around. Natural Resources Committee, 6/7/2005, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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. There are several options for a plan. His agency has committed to support the Sheriff. The Nooksack Salmon Enhancement Association (NSEA) has a small grant from the U.S. Forest Service to do public outreach and education. This is an attempt to inform the public and provide relief. There is no organized group that would come forward and protest the closure. Opposition would mostly come from weekend recreation people from the local area and from Canada. Tasha Geiger, WDFW Fish Biologist, stated the north fork of the Nooksack River has a different environment from the south fork. To adjust to the closure in the north fork, the rafters start earlier, in May. However, the south fork has a different environment. The spring chinook are listed as threatened. They are holding in the south fork. The goal for the number of fish in the entire basin is 2,000 wild stock returning to the Nooksack River. The stock assessment numbers, surveyed in different sections of the entire Nooksack, were about 250 returning fish last year. The numbers haven't gone up. That number is in the entire basin. This closure is to provide relief. Allow the fish to spawn wherever they want. The fish aren't going to have a chance to spawn with 500 people jumping around in the river. According to federal regulations, any time a fish is disturbed and pushed around, it's considered a take. The professional rafters are very conscientious and try to avoid the areas where the fish are located, but the public won't provide that cooperation. The Spring chinook are on the threatened list. The fall chinook aren't listed. Fleetwood asked for clarification of the term taking.' Geiger stated the term is a technical term from the federal government. If someone scares a fish from its holding area, and the chinook is knocked away from a redd, it may not have the energy to get back. The reproductive cycle is interrupted, and it's considered a take. A'take' is disturbing a fish during its naturally reproductive cycle. McShane asked to have a hard copy of the definition of a take, for the record. Hebner stated NMFS will not be able to enforce a take violation of the ESA with the inner tubers unless someone actively tries to destroy a fish. There hasn't been enforcement action against people who float on inner tubes because they haven't met the elements necessary to federally prosecute a take. Crawford asked if a similar closure would work on the south fork if they allow times when it's okay to inner tube. Geiger stated the time when it's great to ride an inner tube is when the weather is warm. She would prefer that the activity be stopped altogether. She needs more information to decide if there are certain times that are okay. Roy stated a closure period from June 1 to October 31 was the original recommendation to close a certain section of the south fork of the Nooksack River, from Edfro Creek to Acme Bridge. Geiger stated the closure dates are good. She's Natural Resources Committee, 6/7/2005, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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. not sure about the specific location. The fish move up the entire river. Closing one section doesn't make a lot of sense because fish move up and down the river. Roy stated they picked the one area that was most impacted. Crawford asked about allowing inner tubers during a certain time of day. Geiger stated fish tend to move more in the evening, when the water is cooler. She would need more information to make that kind of decision. She's seen fish moving at all times of the day. Nelson stated any activity around the fish can cause stress. He asked the requirements for having public access to navigable waters. Royce Buckingham, Senior Civil Deputy Prosecutor, stated he researched the navigable water issue. Island County banned the personal water craft. It went to the Supreme Court, which upheld the ban. Banning the floaters can be done. There are pitfalls and technicalities. The reason for the Island County ban was to protect marine life, primarily mammals, but they had almost the same concerns, which were primarily environmental and secondary nuisance. The key to supporting an ordinance is to have good factual findings that made the solid relation of the ordinance to its purpose. (Clerk's Note: End of tape one, side A.) Buckingham stated one problem was that the personal watercraft industry was vehemently opposed. Whatcom County might not get the same sort of fight from individuals unless an organized group puts together a fight. Fleetwood asked if the issue of navigable waterway was presented as a defense in the Island County case. Buckingham stated it was key to the defense. Crawford stated the information on how the tubers impact salmon is more anecdotal than scientific. There seems to be a nexus between activity on the water and stressing the species. There also seems to be a nexus between stressed species and its inability to spawn. He asked if those nexus would help build the case. Buckingham stated the courts give incredible deference to the Council, provided that the Council makes findings, makes them well, and puts them on the record. If the science is significant to the Council, the court will give the Council deference. The court will not overturn the Council as long as the Council makes sense. Also, there may be many different legal challenges beside the navigable water challenge, but they can be overcome. McShane stated he preferred to think about what they've heard today before deciding on an action. Fleetwood stated he would rather complete this item today. Natural Resources Committee, 6/7/2005, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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 there is an offer from WDFW to help the Sheriff's Office with enforcement. She would like to respond to that offer today. They can direct staff to write an ordinance to restrict people from riding inner tubes, or step up the enforcement process on the laws they already have on the books. Gather data before they go forward with an ordinance to restrict the activity. Crawford stated that within the issue of protecting salmon habitat, the WDFW and Sheriff's Office would help to enforce existing laws. That is fine. There are some good reasons to develop an ordinance. It is worth doing. However, if it is very time - consuming, and because there are enforcement problems now, they should accept the help now. Bob Knutson, 6070 Saxon Road, Acme, stated the number of tubers is 500 per hour, not per day. Thousands of people go down the river. The season has started now. The quickest and easiest way for the Council to have an effect is to eliminate parking on Saxon Road from west of the bridge to the hatchery, and on Mosquito Lake Road. The big key is enforcement. Taking out the parking will keep out the people. That will reduce the problem immediately. He personally counted over 400 people in an hour. Roy asked if the parking now is legal. Knutson stated they have to make the parking illegal first. The County recently fixed that section of the road, and there are parking areas along the road and near the bridge. The Saxon gravel pit is closed out, and holds 50 to 75 parked cars. Crawford asked who the inner tubers are. Knutson stated they come from anywhere from Seattle to Vancouver B.C. Crawford asked if this area has a reputation as being the best place to go. Knutson stated it started with a local article in the newspaper in 1962, and again a couple of years ago. All the residents who live along the river want to be able to recreate in the river, but they collectively total very few people. A very restrictive ordinance will make bad guys out of a lot of local people, too. He's seen people spot salmon in the river and dive after them. People drink on the river all the way to Acme, then there are drunk drivers coming back. They don't have the law enforcement they need. Until they come up with a real good program, eliminate all the parking areas. Nelson asked if they would eliminate the problem if they take away the put - in and take -out. Knutson stated the problem would be restricted. Nelson stated that can result in bubbles sometimes. He asked if there are other areas on the river that would become impacted. Knutson stated the area from the Saxon Bridge to the Acme Bridge is all private property. Natural Resources Committee, 6/7/2005, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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 what's to stop a private property owner from charging a fee for parking. Knutson stated he knows of no one who would do that. They've all been hammered too hard. Nelson stated people would, if it were lucrative enough. Knutson stated it's not that lucrative. Roy asked the ages of most of the people who float on the river. Knutson stated the ages of the people floating on the river tend to be 15 years old to 30 years old. John Lamont, 6184 Saxon Road, Acme, stated he agrees with Mr. Knutson. Stopping the parking will stop the people who float on the inner tubes. Last summer, he hauled a lot of garbage out of the river. Numerous church groups use his campground. Many others use his campground and enjoy the river. They are different kinds of people than those who inner tube down the river. He would really be hurting if the County closed down this river. Campers from every State have stayed at his place. The fees he charges are only for maintenance. He and his family would be very hurt if they closed this river. Future generations should be able to use the river. Crawford asked the type of campground. Lamont stated it is a private campground. Fleetwood stated the river use would still be available on the banks. Lamont stated if closed, it is closed to everyone. Crawford asked if Mr. Lamont has had a problem with the parking. Lamont stated the problem is parking and education. The Bellingham Herald must quit running articles about how great it is to float on the river. In 1976, he counted 1,100 people going down the river in one hour. Crawford asked if they could implement a permit system. Roy stated that idea was discussed at a previous meeting. There were concerns about staffing. Fleetwood stated he would prefer to begin putting together a draft ordinance for consideration. He asked for more evidence on whether more enforcement of parking and underage drinking would significantly reduce the number of people who float on the river, which is what they're most concerned about. Roll stated the issues are intertwined. They are strong influences on the behavior they don't want in the stream. Staff's proposal is to address those issues with the existing laws, do emphasis patrol in the river, and educate people in the stream and out of the stream. First, use the existing regulatory mechanisms and patrol mechanisms. During that time, gather data over the summer. Last, come back in the fall with Natural Resources Committee, 6/7/2005, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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 kind of information that would provide insight into the specific questions. Use NSEA and WDFW to do education and emphasis patrol. That will gauge the willingness of the public to come around. Fleetwood stated the river level was very low last year. It's supposed to be even lower this year. He asked if the river would be so low that people aren't going to be able to inner tube this year. Roll stated he can't answer that question. There will be low precipitation this year. Stay vigilant on the issue to gather information. Roy stated someone will have to coordinate all this if the committee takes the staff's recommendation. She asked if the Water Resources Division would take on that role. Roll stated he needs to talk to the County Executive. Capt. Hebner may partner or lead this effort. This problem isn't something that is going away. Don't put it on the backburner. McShane stated they have enough information to put a closure on the north fork for a period of time. He is sensitive to the educational part. Have a closure with no penalty until 2006. Going around the problem by just looking at parking, even though it's a significant factor, is a roundabout way to address the problem of boats causing a disturbance to the chinook. There wasn't a huge amount of people floating on inner tubes on the north fork, yet the U.S. Forest Service quickly restricted boat use there. Roy stated it is already June. They don't have time to put together a closure ordinance this season. It may be more effective to step up enforcement and education, and look at an ordinance in the fall. Maybe parking and underage drinking enforcement is the best they can do this season. Fleetwood stated they should make an effort to do something less restrictive initially. However, consider the end goal of education. The purpose of education is to hopefully cause people to say they are not going to do this activity. However, it is difficult to believe they can reach all the people on education. Be poised to consider some kind of ban. Crawford stated a closure would accomplish a lot of things all at once. There should be other, less impacting places. He asked if the ordinance could exempt property owners on the river with nearshore recreational use of the river. Much of the problem with parking and other things aren't going to happen if there are signs that say the river is closed for that activity. Signs will deter a lot of people. If someone is on the river, that person is in violation. Look at a long -term inner tubing program in which there is a put -in and take -out location with a self - sustaining permit system, possibly administered by the Parks Department. There could be an education /recreation component, but address this immediately. It will not hurt the community, and it will help the fish. Nelson stated explore options such as those already mentioned. Parking is the critical situation for any activity on the river. Floaters need to have a put -in Natural Resources Committee, 6/7/2005, Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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. and take -out location. Taking away the parking will take away a lot of the problems along the river. See how that works, first. Have strict enforcement of the parking restrictions. Then it wouldn't take away the local community's access. Then the attorney can work on a ban for some, but not others. Roy asked how quickly they can put together an immediate closure. Crawford asked why staff doesn't recommend an immediate closure. Roll stated he hasn't explored that option fully. He must have a discussion with legal counsel. Deal with the salmon issues thoughtfully. They want to be thoughtful in how they are dealing with all the salmon issues. There can't be one entity going in and doing it. It has to be supported by the community. If the Council needs to go that path, he needs to discuss it with the Executive on how committed staff will be. Fleetwood stated they can draft some kind of ordinance for consideration. He would work with Councilmember McShane and legal staff to put something like that together. Now, staff should put together information on education and enforcement, and present it to the committee at the next meeting. Roy stated she would be happy to work on an ordinance also. In the meantime, look at the response with the Sheriff's Office and on education. She asked if Dr. Roll would be willing to work with the councilmembers and attorney on an ordinance. McShane stated he would like more information on the timeframe. If they pass something this summer, it would be in effect the entire season. Do not issue a penalty this year, but look at future penalties. Fleetwood stated it would be nice if the end result comes with a multi- agency recommendation. Roy stated WDFW already put their support in writing. Nelson stated they should reduce the activity this year through parking enforcement. Roll stated he needs to talk with others and bring back information about what that means. Nelson stated that is action to take now. Crawford stated he agrees with Councilmember McShane. If they post signs that people can't raft on the river, there is no reason for people to park. Find out the cost of signage in various locations. Roy moved that the committee begins to prepare an ordinance to ban people from floating on inner tubes in the south fork during a certain time and in a certain area, and also to ask Dr. Roll to work with other agencies on immediate enforcement interventions. Natural Resources Committee, 6/7/2005, Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 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. Motion carried unanimously. (Clerk's Note: End of tape one, side B.) 2. 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, handed out a comparison of the existing and new ordinances. They need to make the best use of the consultant's time. He asked for an opportunity to schedule larger lots of time. Roy stated that is an option. McShane stated they need to have a specific work session on an off - Tuesday. There is a lot of detail here. The Council needs time to get comfortable with all the changes. Roy stated she agrees. Fleetwood stated they should wait until after the next committee meeting, when they will be able to predict how much time it will take and what time is available, to decide whether or not they need to schedule an extra meeting. Roy stated there are a tremendous number of changes from the existing ordinance. Crawford stated he agreed with Councilmember Fleetwood. Roy stated she would schedule an extra committee meeting in one week. There is much to talk about. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 11:11 a.m. Jill Nixon, Minutes Transcription Natural Resources Committee, 6/7/2005, Page 10 1 2 3 4 5 6 7 8 9 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. ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Sharon Roy, Committee Chair Natural Resources Committee, 6/7/2005, Page 11