HomeMy WebLinkAboutNatural Resources June 14 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
Special Natural Resources Committee
June 14, 2005
Committee Chair Sharon Roy called the meeting to order at 1:17 p.m. in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Dan McShane None
Seth Fleetwood
Also Present:
Laurie Caskey- Schreiber
Barbara Brenner
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, stated the purpose is to bring critical areas
ordinance (CAO) into compliance with the Growth Management Act (GMA), address
changes in GMA regarding incorporating best available science in a substantive
manner, provide consideration for anadromous fish, integrate with other planning
processes and codes, and to address changes in the Comprehensive Plan.
There has been a lot of public involvement, including from a Citizens
Advisory Committee and Technical Advisory Committee. This product represents
the wishes of the community and the technical science.
Margaret Clancy, Parametrix, Bellevue, Washington, stated the first section
changed is subsection 16.16.100. There are minimal changes. The primary change
is to add statements establishing that a part of the goals of the chapter are to
ensure no net loss of ecological function. That is a GMA requirement. They've
added language that say provisions need to be implemented in light of best
available science. That is also GMA requirement. They allowed reasonable use of
private property. A goal is to maintain and ensure reasonable use of private
property. They included statements regarding protection of Endangered Species
Act (ESA) listed species. A GMA goal is to give special consideration to anadromous
species.
Fleetwood referenced subsection .100(A). The last sentence uses the word
"seeks." He asked what an administrator refers to when reviewing this subsection.
He asked if it is up to the administrator's discretion. Clancy stated the regulation
Special Natural Resources Committee - Critical Areas Ordinance, 6/14/2005, 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.
provisions have clear guidance on standards and threshold of no net loss and
protection of anadromous species. The language in purpose and intent is to set
forth the goals. Regulations implement and ensure those goals are achieved. The
language is consistent with the current code.
Brenner referenced subsection .100(B)(3). The new language is wording that
doesn't say what they mean. Be clearer about what they mean. Instead, "InsuFe
}"^ ~^ aFe ns eliminate or mitigate adverse impacts...."
Roy asked if this is in response to State regulation. Clancy stated this
subsection was a Planning Commission change. Since the provision deals with
quality and quantity of water resources and it doesn't apply broadly to all
resources, it warranted a higher level of protection.
Brenner stated she agrees with making the language stronger instead of
weaker, but define what they are talking about. They are also talking about
mitigating those impacts that are there. Her language is clearer to people about
what they can and can't do.
Roy stated this is an introduction to the ordinance. It's an overall statement.
Clancy stated item ten addresses that clarity.
Chalfant stated ensuring no adverse impacts doesn't preclude mitigation.
Clancy stated there are a number of substantive changes to Article Two,
which establishes County authority and clarifies how it will be implemented.
Subsection .205 is similar to the existing code. The previous code dealt with
maintenance practices. Those were moved to subsections .230 and .235.
Clancy referenced subsection .210. They added a statement to clarify that
no development is allowed without full compliance with the provisions. It
strengthens the section.
Clancy referenced subsection .215. It allows the County to adopt the
findings of other jurisdictions, such as the State Department of Ecology (Ecology),
to meet code requirements. That is unchanged. They only deleted the references
to a specific regulations, which can change.
Clancy referenced subsection .220, which is essentially unchanged.
Clancy referenced subsection .225, which is changed. This section is divided
it into two sections. Some activities are now specifically exempt. Other activities
are allowed with a notification requirement. It identifies regulated activities and
exempted activities.
Special Natural Resources Committee - Critical Areas Ordinance, 6/14/2005, 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 ongoing agriculture is exempt, but there are standards to
follow. Make a change to strike subsection (D), which would not change the intent.
They've realized that the language as it is might lead people to believe that ongoing
agriculture is completely exempt.
McShane moved to strike .230(D).
Brenner asked if the Planning Commission discussed this at all. Chalfant
stated this section was discussed. Ecology brought forward the potential conflict.
He submitted the letter from Ecology dated May 24, 2005 regarding the Planning
Commission recommendation (on file). He forwarded the letter to the local farming
community's representative on the Citizen's Advisory Committee for comment. He
also discussed it with George Boggs, who didn't have any concerns.
Larry Helm, 2660 East 41St Terrace, stated there is no hobby farm association
in the county. The County staff is correct in that the exemptions are confusing.
The County sent him a letter because he has five cows, one of which was standing
in a manmade ditch. He was threatened with a $10,000 per day fine and ordered
to create a farm plan, which requires that he hire a consultant. No one is available
to write a farm plan, so he must hire a consultant. In addition, he was required to
fence all the manmade ditches a minimum of 40 feet out, which is a 80 -foot swath.
The cost of complying makes it too expensive to have the animals. Instead,
people are selling their cows and leaving. They're selling to people who will build
more homes. Allow an exemption. If someone has only one animal unit per acre
or less, then allow an exemption from the CAO. They can justify it with best
available science given the existing natural animals that used to live in the area,
such as elk herds. Other counties are allowing exemptions to hobby farmers. He
made his plea to the Planning Commission, also.
Fleetwood asked if there is a way to clarify that language. Chalfant stated
the Planning Commission made changes to Appendix A to the chapter. If there is
one animal unit per acre that can be grazed or less, the farmer must develop a low
impact farm plan, which is a self assessment checklist and employ best
management practices (BMP's). It is done by the property owner with a guidance
pamphlet from the Conservation District. The farmer may still have to construct a
fence but may not have to hire a consultant.
Helm asked why one would keep four or five animals if it costs $3,000 for
fencing and a farm plan, plus the cost of annual maintenance.
McShane stated take the comments and note them when they get to that
section of the proposed ordinance. This isn't the place to craft an exemption. The
issue that Mr. Helm is facing is based on the current CAO ordinance. This ordinance
is an update of that ordinance, and may make the situation better, depending on
which way they go.
Special Natural Resources Committee - Critical Areas Ordinance, 6/14/2005, 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.
Helm stated that in the current CAO, it is okay to fence out 100 feet from
each ditch without a farm plan. Now it's being increased to 150 -feet. One must
decide to either do the farm plan or not have any animals.
Roy stated they aren't trying to make it hard for people, but they are trying
to keep the animals out of water that is running to other water.
Helm stated he is willing to fence his animals out of water. He is being asked
to fence an 80 -foot swath. That is the issue. The self- managed farm plan is under
the auspices of the State. They don't get to do what they want to do at all.
Roy stated they will definitely talk about it when they get to the appendix.
Motion carried unanimously.
Clancy stated exemptions also apply to extenuating circumstances due to
Homeland Security order, Environmental Protection Agency (EPA) superfund order,
or other extenuating circumstances.
Some previously exempt activities now require notification or full review,
including gravel extraction, removal of beaver dams, and other things. They must
be consistent with shoreline master program provisions.
Brenner referenced subsection .230(B). She asked if they want to be careful
about pesticide use for noxious and invasive species. Clancy stated item (B)
addresses maintenance of lawfully established vegetation, such as a yard. Beyond
the limits of that type of vegetation, there are other provisions.
Brenner stated she wanted to amend subsection (B), "ornamental and
noninvasive vegetation." Many types of invasive plants are ornamental, but they
cause a lot of problems. They should not be in critical areas.
Roy moved to amend subsection .230(B), 'noninvasive ornamental
vegetation." Chalfant stated they often don't know what will be invasive until it's
introduced.
Brenner stated there is a list of ornamental plants that Cooperative Extension
knows about, but are not on the list for noxious and invasive plants. Make the
language stronger. The list is kept by the local Washington State Cooperative
Extension office. Chalfant stated they can create a definition in the definition
section that refers to that list.
Clancy stated it does have to be defined. Some species may not be invasive
if properly maintained and managed. There should be some way to ensure
compliance.
Special Natural Resources Committee - Critical Areas Ordinance, 6/14/2005, 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.
Roy amended her motion to reference the Washington State Cooperative
Extension list in the definition and amend .230(B), "noninvasive ornamental
vegetation."
Fleetwood stated it sounds like work needs to be done to clarify how this
should be defined. They can come back to it later.
McShane stated he is concerned whether or not it is something that can be
administered. He's concerned about something outside of the conservation
easement areas and mitigation areas. He would support it if administratively
workable and can be done with a clear definition.
Caskey- Schreiber asked how an existing homeowner is going to know if he or
she is in a critical area and to consult this chapter. She supports the language, but
there is a reality to consider.
Roy stated it can't hurt to have the information out there. She withdrew
her motion.
McShane referenced subsection .230(E). He asked why they would exempt
those activities. In the past, there were clean up activities that caused a lot of
harm. He would like to see justification for the reason it's okay to allow those
activities. Clancy stated the Homeland Security language was added at the request
of a citizens advisory committee member who felt there might be a requirement to
comply without the time to go through the full development process.
Fleetwood asked how this list came to be. Chalfant stated the clean up
activates exist in the shoreline regulations. In general, activities are initiated by
the EPA and Ecology. Sometimes they are emergency actions that are preempted.
There are limited circumstances where they go to far. In general, they are positive
activities.
Fleetwood asked if this list is exhaustive. Clancy stated it is. They don't
intend to relinquish control to any federal or State law.
Caskey- Schreiber stated she would be hesitant to put in the exemption for
Homeland Security orders. In one instance, they used a gravel pit for target
practice. Now, there are many lead bullets in an aquifer recharge area. She asked
who holds final liability. Chalfant stated there must be a formal order that
preempts local regulations anyway, to get the exemption.
Caskey- Schreiber asked if the County is responsible for cleanup of damages.
Chalfant stated the agency would be responsible for the actions in the order.
Fleetwood stated federal supremacy would preempt them whether or not the
language is in the ordinance.
Special Natural Resources Committee - Critical Areas Ordinance, 6/14/2005, 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.
(Clerk's Note: End of tape one, side A.)
Clancy referenced subsection .235, which allows activities with notification.
A property owner must send a notice to the County in advance of the activity. The
County may follow up with the property owner and provide additional information
on best management practices or special consideration. Maintenance of existing
infrastructure is allowed. Some maintenance activates can affect critical areas.
The regulation asks for notification. Property owners who engage in frequent
ongoing management can provide a notice once every five years.
Brenner stated she has a concern about these activities with notification.
Under subsection .235(C), mowing should be removed. They're talking about
peoples' yards. Allow people to mow without having to provide notification.
Caskey- Schreiber asked if three days notification allows the technical
administrator time to receive and respond to work orders. Chalfant stated the
County is not required to respond. The County can provide guidance or ask for a
permit if there is a concern. Three days is probably good enough. Ecology
suggested a ten -day timeframe.
Caskey- Schreiber stated she prefers the ten -day timeframe. Chalfant stated
there were concerns from the citizens that such work can be impromptu. Three
days will be tight, but it's workable.
Caskey- Schreiber stated getting them to even comply would be the big
hurdle.
McShane stated he can see that three days might be fine for activities in
subsection (A). Under maintenance and vegetation removal, someone should be
able to plan ahead of time. If groups are putting together work parties, they need
to think about it beforehand. A large work crew can do a lot of harm if they don't
know what they're doing. He can understand three days for an emergency. He is
uncomfortable with three days notice for the rest of the activities.
Roy stated three days makes it difficult to have time to work with the public.
It may put the administrator in an awkward position.
Clancy stated that in the majority of these situations, there wouldn't be any
County action.
Brenner stated things such as mowing and pruning are also listed as an
exempt activity. Clancy stated mowing and pruning are only exempt if done in
legally established landscaping, not in forested wetlands.
Brenner stated people consider landscaping all their areas. Take out
mowing, light pruning, and removal of hazardous trees. People won't think to
notify the County before or after some of these activities.
Special Natural Resources Committee - Critical Areas Ordinance, 6/14/2005, 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.
McShane moved to amend .235(B) through (K) to require a 14 -day
notification.
Roy asked if the citizens advisory committee wanted to keep it short.
Chalfant stated more time would allow staff to have more meaningful interaction
with the citizens. The recommendation for a three -day timeframe came from
citizens.
McShane stated that there was no timeframe previously. Clancy stated the
notification requirement was on the notification form itself.
Chalfant stated five days notification was required. The notification for
emergencies isn't necessary. Subsection .235(A)(4) allows for emergency actions
to take place if they can't provide prior notice.
McShane amended his motion to amend subsection .235, "...at least three
{3} ten (10) full business days..."
Fleetwood asked for an explanation of the mowing requirements. Chalfant
stated mowing in the landscaping is allowed, but not in areas separate from the
lawn area.
Brenner stated that's not what the language says. Many people mow their
entire acreage. Making people notify the County about mowing and other things
such as hand removal of noxious or invasive weeds is not going to work.
Motion carried unanimously.
Roy stated there seems to be confusion about the mowing notification
requirements and exemptions. Clancy stated the intent is well- founded, but she
agreed that it may be difficult for someone to distinguish between what is and isn't
lawfully established landscape or garden. Some areas are obvious. That was the
rational. It may pose challenges for administration.
Fleetwood stated the fundamental problem is that there is no definition of
"select vegetation." Define it in this context.
Brenner stated the mowing part should be taken out of the language. They
should be happy when people hand - remove noxious or invasive weeds, especially in
wetlands.
Caskey- Schreiber stated they could add language to subsection .235 to
identify and clarify what can be done without having to provide notification.
Special Natural Resources Committee - Critical Areas Ordinance, 6/14/2005, 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 this isn't something they can resolve right now. He needs to
think about it. The staff understands the confusion. Come back to this item with
suggestions for clearer language.
Bob Tull, attorney, stated the first sentence in subsection .235 (B) is also
confusing. He is not sure what the exclusion is intended to do.
Roy asked staff to reconsider that sentence also.
McShane referenced subsection .235(C)(2). On steep slopes, people might
want to limb trees, remove branches, or top a tree. That is allowed. That material
must be removed from the slope so it doesn't increase the hazard. Also, don't
allow negative environmental consequences when a lot of vegetation is cleared,
then left on the ground. Clancy stated the hazard aspect is addressed. If the
material poses a hazard, it is a reason to remove it. This is intended to address
select vegetation removal, not to address a lot of vegetation that prevents species
from getting through an area. They can add a standard in this section that it not
impede wildlife movement.
Brenner stated subsection .235(C)(2) is confusing. Instead, say that native
vegetation shall be left in the critical area or buffer where practicable.
Caskey- Schreiber stated there is a conflict. Cutting and leaving native
vegetation in a critical area could be considered dumping. Clancy stated they could
omit the word "removed." The thought is cut the vegetation and leave it in place.
Roy asked staff to clarify the intent in section .235(C)(2).
Brenner referenced subsection .235(C)(3). People with a threatening tree
won't think about notifying the County about removing it. She understands the
intent.
McShane stated he disagreed. If someone is required to leave trees
according to the CAO, the owner is responsible for leaving the buffer alone.
Occasionally, the owner may have to take care of a hazard tree, but they would
know to notify the County. Too often, he's seen people take trees down and cause
enormous harm to their property and their neighbor's property.
Roy stated that if there is a true emergency, the technical administrator
would understand. It would stop the abuse of just calling something dangerous
that isn't.
Brenner stated she's not sure how they would get the message out to the
people of the county. There are enough laws already to stop someone from
misusing the claim of imminent threat. Many people will find out later that they've
done something illegal.
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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 amend (G)(1), "This moon. allowed activity shall
not be used..."
Motion carried unanimously.
McShane referenced subsection .235(G)(2). Define "maximum extent
possible." Trees that are 12 inches in diameter or more can be thinned and pruned
without actually being removed. Clancy stated there was some debate on what the
tree diameter threshold should be. Twelve inches was a compromise. There may
be cases were a cluster of trees that size would impede views, and there would be
rationale to cut them. The term is in the ordinance quite often. It's interpreted
subjectively. She's not sure how to address it. They also use the term "to the
extent practicable."
McShane stated anything over 12 inches should be left, unless they go
through some other review process to be removed. He moved to delete
.235(G)(2), "...Trees greater than 12 inches in diameter at breast height shall be
preserved te the maxingurn extent possible, but may be shaped, window /thinned or
pruned."
Motion carried unanimously.
Fleetwood referenced subsection .235(K). He asked how they decided on
two years old or less for removing beaver structures. Clancy stated that time was
suggested and recommended by a Planning Commission member. The commission
settled on two years because it is a structure that is established and probably has
an effect on neighboring properties, but it's not something that's been there for
many many years. There was no real science supporting that length of time.
Chalfant stated most of the commissioners agreed that there be a provision
to remove newer structures, but not those that have been there for many years.
Caskey- Schreiber stated it is a hot issue for farmers. A farmer may not
know of the structure during dryer years. She likes the language.
McShane stated this requires the operator to obtain a hydraulic permit
application (HPA), which isn't that easy.
Tom Pratum, N. Cascades Audubon, stated the Planning Commission seems
to be at war with beavers. This section should apply to certain kinds of lands, such
as just agricultural lands. There are some residential lands where people have
beaver dams they want to remove, and will be able to remove the structures, based
on this section.
(Clerk's Note: End of tape one, side 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.
Brenner asked about beaver -built structures that do not impact farmland, but
impact residential land. Chalfant stated the intent was to allow removal with formal
review if the structure is more than two years old. He's not sure if that type of
alteration was included in the code. If they want to allow that to occur, they will
have to add it to the code.
Clancy stated staff should clean up that language to make it clear that it's for
farming operations.
Chalfant stated they also need a provision for non -farm operators when the
structure causes a flood.
Clancy stated the intent was to allow the removal with notification if it's on a
farm property. There is no provision to allow removal if the structure is on non-
farm land. Staff can add a provision to address it in the fish and wildlife habitat
conservation area section of the code.
McShane stated that if a beaver structure is a threat to homes, the structure
could possibly be removed under the emergency provision.
Roy asked if this is a big problem. Chalfant stated it comes up. He sees
about five cases per year.
Caskey- Schreiber stated beavers can take down some pretty big trees.
Roy stated staff can work on that language for Article Seven.
Clancy referenced subsection .240. This section is updated and modified
from section .230 in the previous code. It clarifies and establishes the authority of
a technical administrator and the Hearing Examiner. She read the provisions for
authorization of a technical administrator and the Hearing Examiner.
Fleetwood asked if the use of a technical administrator and the Hearing
Examiner is consistent with the existing approval structure. Chalfant stated that is
correct.
Clancy referenced subsection .245. It is the same as the existing code. The
County technical administration, in conjunction with the applicant, can convene
outside expertise from state and local agencies or professionals to assist in the
process when warranted. The team would verify data to make sure the critical area
determinations are accurate and best available science is followed. The technical
administrator is the coordinator of that effort. In lieu of convening a team, the
County can hire a third party at the applicant's expense when warranted.
Fleetwood asked how the team of experts is paid. Chalfant stated that in the
past, they have used representatives from governmental and tribal agencies on the
team, and they don't charge a fee.
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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.
Clancy stated that in most cases, those agencies coordinate regularly and
often because they will also have jurisdiction over the proposed activity. Convening
the team and coordinating the review may be in everyone's interests.
Fleetwood asked if the process of convening a team is unusual. Chalfant
stated it is not. They coordinate with and rely on other agencies often.
Brenner asked about third party review by a qualified professional. She
asked if an applicant could get a review by a qualified professional instead of the
review by the team. Clancy stated people may be required to do that. The
applicant has that ability. This language is about what the County can do in its
review process. The County can supplement its internal review by hiring a third
party to review the process.
Brenner asked who decides whether a third party will be hired. Chalfant
stated a technical administrator or the Hearing Examiner will decide.
Brenner asked if there is an appeal process. It's a double charge to hire a
qualified professional to review the work of a qualified professional. Clancy stated
it's a common practice among counties. The County may want an outside
consultant to review something on which a county employee is not expert.
McShane stated there is also a staffing issue of not having on -staff
knowledge of a particular niche. This process is particularly useful for very small
jurisdictions who don't have that expert staff.
Clancy referenced and read from subsections .250 and .255. The reports
must include best available science. The scale of the analysis must be
commensurate with the potential impacts. A technical administrator must provide
written findings. Also, the applicant must submit reports and maps in an electronic
format so the County can better track the projects and properties. This new
language expands and more clearly defines the report requirements.
Brenner referenced subsection .255(H)(1). She asked if an applicant must
go on a neighbor's property to define the critical areas. Clancy stated that is not
what they mean. The applicant must use whatever information is available to find
out if there is a critical area, such as aerial photography or soil maps.
McShane referenced subsection .255(H)(1). The vast majority of his reports
are for people with no proposed residential development at the time. People just
want to know. Creating a site plan of a proposed development often can't be done.
It may be several years before someone comes forward with a site plan. He is
concerned that the assessment report will require that level of detail. Clancy stated
they don't intend to require that information if the person is not at that stage. Staff
should think about whether this requirement precludes someone from submitting a
report early on, when they don't know where the development will go.
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McShane stated a detailed site plan can be very costly. Instead, allow a
hand drawn sketch. Clancy stated the provision says the level of analysis is
commensurate with the level of impact.
McShane suggested amending the first item in .255(H)(1), "A site plan
showing the relevant critical areas and buffers within and abutting the site, a
written description..." Clancy stated they may want the ability to request that
additional information, the proposed development footprint and clearing limits. For
some development proposals, the County will want to require that information.
McShane stated the final development proposal should have that information.
It would be helpful if staff could clarify it somehow.
Caskey- Schreiber asked if the County would require someone to just submit
a report if that person is not going to build. Chalfant stated the County does not
require anything of anyone who is not going to build right away. However, often
people get those reports in advance of coming to the County, but they might not
know where the house footprint will go. The applicant may just want an idea of the
geologically hazardous areas and the safe areas.
McShane stated there are certain pre - development plans that show the site
can be developed, but it doesn't include the site plan.
Caskey- Schreiber stated an evaluation without information on where a house
goes puts staff in a difficult position.
Chalfant stated the County needs the site plan to do review, but the
consultant may not be the person who draws up that site plan. The County could
require the applicant to submit a site plan based on information from the qualified
professional. Therefore, the applicant won't have to pay a geologist or wetlands
biologist a lot of money to develop a plan that the applicant can develop.
The committee concurred.
Clancy stated that in the wetlands section, in Article Six, says that accessing
offsite properties is not required. That language is also in the habitat conservation
area section. Those are the two sections where the buffer situation kicks in to
consider abutting properties.
Jennifer Aylor, Wildlands of Washington, Inc., Marysville, stated County staff
has been terrific to work with. She described her background. Her company is
interested in starting a wetland bank in Whatcom County, but the draft critical
areas ordinance makes wetland mitigation banking awkward.
She reference her letter to Planning Director Hal Hart dated April 26, 2005.
There are times when mitigation must be done onsite, but not always. There are
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times when moving farther offsite is okay. The U.S. Environmental Protection
Agency's (EPA) new guidance softens its previously stated strong preference for the
sequencing process. Sometimes, it's okay to go a little farther than onsite, if the
functions and values support it.
She has not seen the U.S. Army Corps of Engineers' draft wetland rules, but
she's heard that they plan to also soften their preference for sequencing. It will
allow for offsite mitigation when functions and values are higher, even if onsite
mitigation is available. Whatcom County should allow the same. It's not feasible to
have small banks in every watershed in the county. She read the preferred
language given in the letter (on file).
Wildlands has concerns about technical review. Her company is more than
happy to pay a hefty permit fee to pay for staff to be a partner on a project to
represent the Council's interest rather than going out to a third party technical
review consultant.
What her company does is proprietary. Other technical review consultants
would be another mitigation banker. She is not in favor of that. They spend a lot
of time and money developing private and confidential legal contracts. They don't
want to pay one of their competitors to go through their product. Wildlands has
spent 14 years developing how to do mitigation banks.
There are two kinds of crediting ratios. One kind is a credit given to a bank.
It takes a long process to determine the functions and values. A number of credits
is assigned to a project site. The user's end functions when an applicant asks to
buy a certain number of credits. Washington State agencies will require a credit
ratio in the approved mitigation bank documents. The credit ratio will define the
expected impacts and ratio.
The ratios are lower in a mitigation bank because there is a guarantee of
success. Banks are running normally before the impacts occur. The need to
increase the buffers goes down because of some certainty of success. The
difference is significant. When asking for consideration for banks that are
consistent with State and federal rules, allow lower replacement ratios.
Mitigation by watershed is a big issue. Whatcom County must make a policy
decision on whether or not to leave open the doors for wetland mitigation banking.
This particular clause is enough to close the door. When she works with federal and
state agencies, they determine a service area. They're looking at the functions,
values, and benefits in a particular area and what other areas have similar
functions, values, and benefits. The comparison is generally tied to watershed
resource inventory area, but not always. The watershed area is defined as 122
basins in Whatcom County. If the impacts and mitigation have to occur as close as
possible to the sub - basin, then the wetland mitigation bank only has an area that
can buy credits in that small drainage basin. In order to cover the county, they'd
look at 122 different mitigation banks. That's a great concern. There are four or
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five eco- regions in the county that are separate. It wouldn't make sense to have
one bank countywide. However, that language is most concerning to her right now.
(Clerk's Note: End of tape two, side A.)
Brenner asked staff's response to the concern about the last item. Chalfant
stated that is a sensitive issue to the committees, agricultural community, and folks
in the Drayton Harbor and Birch Bay watersheds. There are certain hydrological
functions in the Drayton Harbor watershed that should not be exported. There are
about 18 watershed management units in Whatcom County. Within those areas,
there are functions they would want to keep there. There may be other functions
that are not limiting and that could be exported to a larger, regional mitigation
bank. This process could be problematic, according to citizens, farmers, and the
Planning Commission.
Brenner asked if they can deal with it on a case -by -case basis. Aylor stated
it's a little awkward to take a gamble on buying a large area that is very expensive,
just to find out that the service area is small. They wouldn't have a clientele to
which they could sell credits. It would be financially devastating to a company such
as hers.
Roy stated this ordinance will be held over to the next Natural Resources
Committee meeting. This is not the end of this discussion.
McShane stated this could be a big issue. There should be more reasons for
expanding a mitigation bank beyond any of the drainages. They don't have the
information to make that determination. He wants to know a lot more before
making that determination. Knowing the geography of different counties, it's clear
that Whatcom County is different. Banking will become a big deal for some areas.
At this point, he doesn't want to make much change at all. After the CAO is
adopted, mitigation banking would be a bigger project to take on. Chalfant stated
staff can work with Wildlands, Inc. to possibly come up with some solutions that
don't have adverse impacts on their resources.
McShane stated don't hold up CAO approval by that process.
Roy stated she has to be convinced that wholesale mitigation banking is good
for Whatcom County. She's willing to listen, but it looks like the draft CAO goes in
the right direction. Don't spend a lot of time on ways they could do large -scale
mitigation banking.
Aylor stated she is willing to make a presentation to the committee on what
mitigation banking is and is not. Wildlands, Inc. is currently the president of the
National Mitigation Bank Association. They're involved on a national level. A
handful of recommended changes would allow banking without allowing everyone in
Whatcom County to bank. If the Council is interested in seeing what a bank would
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look like in Whatcom County, there are small changes to the CAO that would allow
banking for them.
Roy stated she is open to that presentation if the staff feels it's necessary. It
will be hard to convince her that impacts in Birch Bay ought to be mitigated
elsewhere.
Brenner stated there are no insensitive watersheds in Whatcom County. She
is interested in seeing the presentation. They have a lot to learn about mitigation
banking. Whether or not she agrees with mitigation banking, the presentation
would provide information she probably doesn't have.
Fleetwood stated he has a number of questions on mitigation. Don't give
direction to staff on anything until the committee has gotten into the issue.
Roy asked if staff planned to provide an overview on areas where they might
be able to do banking versus functions that should not leave a particular basin.
Chalfant stated staff is preparing a landscape characterization for the entire county,
which gets to some of those issues. He can present a presentation on that effort
and how it works with mitigation banking. He can present that presentation in
August.
Brenner stated it's becoming clear to her that some of the cities are not all
on board with the same kinds of buffers that the County is doing. She's concerned
about the urban growth area buffers, and if they don't mesh with what the cities
require. Development could occur and become very inefficient. She asked if staff
is reaching out to the cities. Chalfant stated they are. All the cities are invited to
the technical advisory committee. All have participated except the City of
Bellingham.
Brenner stated the City of Ferndale has decided to use the buffers required in
the Washington State law, and that's it. Chalfant stated the small cities have
participated in the CAO update. The small cities plan to look at the County's best
available science record, and will use it as they develop their critical areas
ordinances.
Brenner stated one small city indicated that's not the case. Chalfant stated
the City of Bellingham is using a similar system. They're using the Department of
Ecology wetland rating system. There is general consistency between the County
and City critical areas ordinances.
Brenner stated she'd like to see the differences between the County and
cities' buffer requirements. Chalfant stated the City and County have an interlocal
agreement on which development standards apply in the urban growth areas.
There is discussion on whether it will apply to the critical areas ordinances also.
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ADJOURN
The meeting adjourned at 3:52 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Sharon Roy, Committee Chair
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