HomeMy WebLinkAboutNatural Resources June 21 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
June 21, 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:
L. Ward Nelson
Barbara Brenner
Sam Crawford
COMMITTEE DISCUSSION
1. UPDATE FROM THE ACME /VANZANDT FLOOD CONTROL ZONE
DISTRICT (AB2005 -083)
Chris Hatch, Acme /Van Zandt Flood Control Sub -Zone Advisory Committee
Member, submitted and read from his testimony (on file). The project has
expanded to include the County in developing a project that works for everyone.
An enormous amount of work and funding are still needed for the project.
Roy asked if the project seems to be going in the right direction. Hatch
stated it does.
Paula Cooper, River and Flood Division Manager, stated the consultants are
working with the County and property owners to develop acceptable ideas,
conceptual designs, and potential funding from a Salmon Recovery Funding (SRF)
Board grant. Now, they are focusing on projects three, four, and another project at
the Betty Lou Close property.
Nelson stated he appreciates the community and County staff working this
out. It makes his job a lot easier.
Roy stated they have made a lot of progress.
Fleetwood asked the difference between the new and old proposals as shown
on the map. Cooper stated the logjams are the old project, which includes removal
of the riprap. The numbered items on the map are the newly proposed items by
the advisory committee. The concept for item one is to reinforce the right bank and
lower the downstream portion, so flood waters inundate that area more frequently.
Natural Resources Committee, 6/21/2005, 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.
Fleetwood asked if this is a significant reconsideration of the project. Cooper
stated it is.
Brenner asked for another map that shows the road location. Cooper stated
Mosquito Lake Road is off the top of the map. The Betty Lou Close property is not
on this project.
Nelson asked if project number five on the map is where the water will flow.
Cooper stated the concept of five is to create side channels to be accessed more
frequently.
Nelson stated an increased amount of reinforcement at project one will push
toward the left bank. He asked the idea of project two. Cooper stated that project
is a woody revetment to slow down erosion. There was a possible reconnection to
the south to improve fish passage. That project will probably not happen during
this round because they couldn't get in touch with the property owner.
Roy stated the committee would devote a full meeting to this issue in the
future.
OTHER BUSINESS
Jeff Margolis, Everybody's Store, stated he also speaks on behalf of the
Rossing's. The newspaper yesterday reported that the Council is working on a
project dealing with people who ride inner tubes on the South Fork of the Nooksack
River. They are very concerned about the all -or- nothing perspective. He asked the
Council to let them know of their meetings and proceedings. The degradation of
this species has taken a long time and many major institutions have brought this
about. He has questions.
Roy stated she will keep Mr. Margolis involved. An ordinance is not yet
written. When it is, it will be introduced to the Council and there will be a public
hearing. This is just in its initial stages. Mr. Margolis will have an opportunity to
speak. The Council will consider the implications to everyone.
Margolis stated no one has worked on this issue with the County longer than
he has. There is much information out there.
Roy asked that he submit any written information that there is.
COMMITTEE DISCUSSION
2. ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY CRITICAL
AREAS ORDINANCE, WCC CHAPTER 16.16 — CRITICAL AREAS AND
Natural Resources Committee, 6/21/2005, 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.
ASSOCIATED PROVISIONS OF WCC TITLE 2, CHAPTER 2.33, AND WCC
TITLE 20 (AB2005 -226)
Jeff Chalfant, Senior Planner, stated the committee left off on subsection
16.16.260. The committee gave staff guidance on certain issues. Staff prepared a
memo with replacement language and substitute pages. He submitted the memo
dated June 20, 2005 regarding recommended amendments to the April 27, 2005
draft Whatcom County Critical Areas Ordinance (CAO) (on file) and read proposed
change one, to subsection .230.
McShane moved to amend 16.16.230(B), "...pruning and planting of non-
invasive ornamental vegetation...."
Motion carried unanimously.
Roy moved to amend Article 8- Definitions to add a definition of invasive
species, "Invasive species means a species that is 1) non - native (or alien) to
Whatcom County and 2) whose introduction causes or is likely to cause economic or
environmental harm or harm to human health. Invasive species can be plants,
animals, and other organisms (e.g. microbes). Human actions are the primary
means of invasive species introductions."
Fleetwood asked how they created the definition.
Margaret Clancy, Parametrix, stated they did a website search to find a valid,
scientific definition.
Brenner stated the same website lists the specific non - native invasive
species. There are several levels.
Motion carried unanimously.
Chalfant stated Bob Tull brought up an issue about the maintenance and
operation of existing infrastructure improvements. A section excluded features
appurtenant to single family residences. He modified section 16.16.230 and added
subsection (E) to add a new exempt activity specifically for the maintenance and
repair of single family residences and their utilities and development, as long as
they've been lawfully established.
McShane moved to amend 16.16.230, "E. Maintenance and /or repair of
lawfully established singe - family residences and appurtenant features provided that
the activity does not further alter, impact , or encroach upon critical areas or
buffers or further affect their functions. The maintenance activity shall not result in
increased risk to life or property."
Motion carried unanimously.
Natural Resources Committee, 6/21/2005, 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.
Chalfant stated the next language change to 16.16.235(B) is the same issue
that Mr. Tull raised. They cleaned up language by removing reference to single -
family residences and cleaned up the sentences.
McShane moved to amend 16.16.235(B), 'Maintenance, operation, and /or
repair of existing infrastructure improvements, including dikes and drainage
ditches, rights -of -way, trails, roads, fences, and utilities,
appurtenant te single family residences provided that the activity does not further
alter, impact , or encroach upon critical areas or buffers or further affect their
functions. Of EFitTcal areas here is no The maintenance activity shall not result
in increased risk to life or property as a result of the pFepesed operation,
. Maintenance shall...."
Motion carried unanimously.
Chalfant referenced subsection .235(C) regarding mowing and hand removal
of noxious weeds. They modified the language to clarify the section to limit that
type of removal. They also addressed the issue of hazard trees more clearly.
Roy moved to amend subsection 16.16.235(C) as shown in Mr. Chalfant's
memo to the Natural Resources Committee dated June 20, 2005 (on file).
Brenner asked if mowing and hand removal of noxious weeds are exempt
now. Chalfant stated mowing is exempt for lawfully established lawns. For hand
removal of noxious weeds, there is a new subsection of .230(B). It is exempt.
Brenner asked about subsection .235(B)(2). That section was referenced in
the letter from the State Department of Ecology (Ecology). Ecology's letter said the
applicant's written description and acceptance by the County shall be valid. Clancy
stated the County doesn't make a formal acceptance.
Chalfant stated the County doesn't authorize the activity. It just receives
notification.
McShane stated he is happy with the County's interpretation of Ecology's
comments because it would be challenging administratively, otherwise. The County
would have to check each notification and make sure the description fits. The idea
is to limit the number of reviews.
Nelson asked if critical areas are identified. Chalfant stated they don't have a
complete inventory of all critical areas yet.
Nelson asked if the landowner brings in information on critical areas or if the
County does a site inspection. Chalfant explained the general process. The County
screens applications to find known or suspected critical areas and then does a field
inspections. If there is nothing on a map that indicates the presence or likely
presence of a critical area, the staff won't do a site inspection.
Natural Resources Committee, 6/21/2005, 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.
Nelson asked how it comes back to the landowners, who may have already
started a project, when a site inspection occurs. Chalfant stated the County won't
check every notification. The applicant is not authorized to break ground until the
permit is granted, which isn't granted until the site is inspected.
Clancy stated nothing about that process is new. That process has always
been in effect with the current ordinance.
Motion carried unanimously.
Chalfant referenced subsection .235(K). The Planning Commission
recommendation references that removal of beaver built structures only happens
on agricultural land. He suggests a language change to allow removal by all
property owners.
McShane moved to amend .235(K)(1) through (3) as shown in Mr.
Chalfant's memo to the Natural Resources Committee dated June 20, 2005 (on
file) .
Fleetwood asked if beavers frequently have built structures that are
significantly older than two years, whether beavers build a structure for a small
amount of time, and then move on, and the impact to the beavers.
McShane stated the removal of a beaver structure requires a hydraulic
permit application (HPA) from the State Department of Fish and Wildlife, which
includes thorough review, including review of fish impacts. The State may require
conditions or mitigation. Chalfant stated the committee could add a criterion that
removal must address an identified flooding issue.
Brenner asked if there are people who would remove them for no reason.
Roy stated there are not.
Brenner asked if owners of single - family residences would have to hire
someone to get an HPA. Chalfant stated owners would not necessarily have to hire
someone. The State works with individual landowners.
Motion carried unanimously.
Brenner asked if beaver dams help the river. Chalfant stated the beaver
dams do create off - channel habitat and other environmentally beneficial things, but
they can sometimes go too far.
Chalfant referenced section 16.16.720. It further addresses the beaver
issue. He recommends a new subsection 16.16.720(Q).
Natural Resources Committee, 6/21/2005, 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.
McShane moved to add 16.16.720(Q) as shown in Mr. Chalfant's memo to
the Natural Resources Committee dated June 20, 2005 (on file).
Nelson asked what prevents the same results by just trapping the beavers.
Clancy stated the issue is to address the hydrologic alterations the beavers caused.
By removing the structure, it will restore the flow and alleviate the concern.
Typically, the Washington State Department of Fish and Wildlife (WDFW) looks at a
number of different solutions when this application comes up. Trapping is one
alternative. Beavers tend to return to one location. They are not easy to get rid of.
Chalfant referenced subsection 16.16.255(H) related to the requirement for a
detailed site plan. He recommends striking the requirement for a detailed plan and
add a requirement for a relevant site plan. It will be up to the technical
administrator to determine the relevancy.
McShane restated and amended his motion to amend 16.16.720(Q) and
also to amend 16.16.255(H) as shown in Mr. Chalfant's memo to the Natural
Resources Committee dated June 20, 2005 (on file).
Motion carried unanimously.
Bob Tull, attorney, stated that the public should have an opportunity to
address any changes as they come up in the future.
If interested, a book called Lily Pond explains beavers tremendously.
Roy stated they would consider public input on all changes. The Council may
also make changes right up to the end, even if it makes its best effort to work
systematically.
Clancy referenced section 16.16.260, which was formerly subsection .245.
This is about wetland and stream mitigation. It should broadly reference all types
of mitigation. That was a key change from the old version of the critical areas
ordinance (CAO). The subsection now describes general mitigation for all types of
critical areas. It allows use of offsite mitigation, cooperative mitigation projects,
bonding requirements, and other changes. They expanded the mitigation banking
section. They referenced that the State's proposed mitigation banking rules would
be used in Whatcom County. Allow alternatives for mitigation if criteria are met.
(Clerk's Note: End of tape one, side A.)
Brenner stated this section deals with planned unit developments.
Everything is about bigger projects. She asked how smaller developments and lots
are addressed. Clancy stated one provision is for reasonable use, which allows a
property owner to develop if there are constraints. There may still be a mitigation
requirement. Look for ways to minimize the impacts and do some onsite mitigation
Natural Resources Committee, 6/21/2005, 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.
if feasible. If not feasible, offsite mitigation could be an option. There are limits on
how far offsite the owner can go.
Brenner asked if the County has options for property owners to restore
offsite areas without buying another lot. Chalfant stated they are trying to set up a
process for mitigation banking. Through the shoreline program update, they are
developing a countywide restoration plan to identify a variety of sites that can be
mitigated. They will have a project list in the near future from which folks can pick
projects. The list would include portions of projects that individual property owners
can work with. The staff will work with folks.
McShane asked the rationale for the change to .260(C). Chalfant stated it
was based on a Planning Commission discussion. The Planning Commission was
concerned that mitigation sites be maintained in perpetuity.
Nelson asked if there is a template for monitoring reports. Chalfant stated
the ordinance includes specific standards on the information required in the report.
The technical administrator will administer the requirement. Typically, when
mitigation is required, the County already requires some kind of monitoring and
reporting.
Nelson stated he'd like to know the number of reports they have and how
they do follow up.
Crawford referred to the Catalyst Consulting letter dated June 13, 2005.
Chalfant submitted the letter (on file).
Crawford read item two in the letter. The suggestion makes a lot of sense.
McShane moved to amend .260(C), -aAll mitigation areas
shall be maintained... and values subject to field verification by the
Technical Administrator."
Motion carried 2 -0 with Fleetwood out of the room.
Chalfant stated this doesn't prevent someone from filling in a mitigation site
once the monitoring period is up. It might be stronger to have language preventing
that return.
Brenner stated that if people do that, they would violate the law. Clancy
stated there is a situation where people apply for a permit to fill the mitigation site,
and then mitigate the mitigation site. State agencies require a mitigation site to be
maintained in perpetuity. Regarding the letter, the requirement to maintain is to
prevent degradation, not prevent natural succession and natural functions. That
was the intent.
Natural Resources Committee, 6/21/2005, 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.
Brenner stated that if someone wants to mitigate a mitigation site, all that
information would come out at that point. It will be considered. If done legally, the
technical administrator will note that the site is already a mitigation site. Clancy
stated the question is whether they want the language to clearly say they won't
allow mitigation of a mitigation site.
Roy asked if legislation doesn't exist to prevent it. Clancy stated they do
have a requirement for a deed restriction on a mitigation site. That mechanism
may be one step removed from a code provision that says mitigation sites are
permanent and one can't mitigate them. This is a policy decision.
McShane asked if the term "in perpetuity" comes up within something like a
deed restriction. Frakes stated the term comes up in deed restrictions.
(Inaudible.)
McShane stated that he listened to this discussion, and because he
understands the phrase "in perpetuity" is common in deed restrictions, he moved
to rescind the vote to remove "in perpetuity" from to amend .260(C), "Trevided
th-at aAll mitigation areas shall be maintained... and values in perpetuity subject to
field verification by the Technical Administrator."
Nelson stated that instead, they could refer to subsection 16.16.260(C)(3).
He'd feel more comfortable to leave it in the language of the deed or covenant.
When people do covenants, they are usually designed for large projects, but this
can be applied to small projects. He asked how property owners monitor their
covenants. He asked if the neighborhood association is held liable. Chalfant stated
the developer does mitigation monitoring, who then passes it on to the property
owners.
Nelson asked what happens when the developer goes out of business.
Clancy stated that's why they require a performance bond.
Nelson stated it makes more sense to make the property owners be more
responsible. He asked if there is a way to make that a requirement of the covenant
or deed restriction process. Chalfant stated that it does fall on the responsibility of
the property owner in the long -term.
Clancy stated that when people are issued a permit to alter a wetland or
stream, they have to provide mitigation and then monitor mitigation for three to
ten years to demonstrate that it meets performance standards. In addition to
providing that monitoring information to the County, they also will have to provide
the information to Ecology and the U.S. Army Corps of Engineers, who also regulate
wetland impacts. If they fail to fulfill the monitoring requirements or mitigation
performance standards that are a condition of project approval, then the local
agency that holds the bond can collect on that bond to implement mitigation or
complete the monitoring.
Natural Resources Committee, 6/21/2005, 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.
Crawford asked the problem with mitigating mitigation sites in the long term.
Clancy stated one problem has to do with the temporal loss. They are never going
to make up for the temporal loss if they keep developing on mitigation sites.
Eventually, they will run out of room.
Crawford stated one could do it with a mitigation plan.
Brenner stated that if they mitigate a mitigated area, they will lose a
percentage of the overall replacement amount. She asked at what point developers
get their bonds back if a site must be maintained in perpetuity. Clancy stated
developers get their bonds back when they meet the performance standards in the
mitigation plan.
Brenner asked if the individual property owners will have to do certain things
to the mitigation sites in the future. Clancy stated the property owners wouldn't
have to do monitoring. Once a mitigation site is established, there will be
covenants, codes, and restrictions for the property owners. It is still the applicant
or developer who agreed to monitor until the performance standards have been
met.
Crawford stated money can be set aside for monitoring in an account, and
the account and responsibility for monitoring goes with the parcel ownership.
Chalfant stated the money would have to be set aside. The developer would have
taken care of it financially, but just passed on the responsibility.
McShane withdrew his motion.
Nelson stated he is concerned with implementation. Clancy stated that most
of the administrative procedures are unchanged from the existing CAO.
McShane referenced the change in subsection 16.16.260(E)(1). He asked if
it's okay for the County to become the facilitator. He asked if that is the intent.
Chalfant stated the public had concerns, and this is the County's response to that
concern. The public doesn't trust the County's discretion in this instance. As long
as people demonstrate they can meet these criteria, the County should be
responsible to facilitate those processes. It's not up to the County's whim on
whether or not it will engage in this process. If it is going to happen in Whatcom
County, then the County will be the facilitator.
McShane stated he's fine with that philosophy as long as the County is
capable of doing that. Chalfant stated facilitating this is organizing the permitting
process and coordinating what the County staff already do. They are not saying
staff will develop the plan for the applicants or act as consultants. The staff is just
the process facilitator.
Nelson asked if no other agency, group, or individual may provide a
mitigation plan other than what the County introduces. Chalfant suggested, "The
Natural Resources Committee, 6/21/2005, Page 9
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DISCLAIMER: This document contains the Whatcom County Council or Committee
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are not the final approved minutes.
County shall facilitate review and /or appFeve approval of an alternative mitigation
plan for a..."
Nelson stated he is more comfortable with the suggestion.
Roy moved to amend (E)(1), "The County shall facilitate review and /or
approve approval of an alternative mitigation plan for a..."
Motion carried 2 -0 with Fleetwood absent.
Crawford asked how this section applies. Chalfant stated this might allow
developers or property owners to take on a larger project and be allowed special
projects.
Crawford stated the applicant might be happy with the regular process and
not want to go through an alternative.
Brenner stated this only applies if the applicant chooses an alternative.
Chalfant stated the person would have to put in an application for an
alternative for this section to apply.
Roy stated the intent is for the County to have the final say on an alternative
mitigation plan if the applicant wants to do an alternative.
Brenner referenced subsection .260(E)(3). The entire section makes her
nervous. It's about the County Council approving watershed -based mitigation
plans, which is a technical document. The County Council is legislative, not
technical. The Council has no business approving a watershed -based mitigation
plan. Chalfant stated the County Council is in the business of approving larger
scale projects, including planned unit developments (PUD's). These projects may
include a policy change for an entire watershed. Staff would be available to advise
the County Council. It's a policy decision, which should be made by the Council.
This type of watershed -based management plan could serve as a substitute for the
CAO in part or wholly.
Brenner stated a mitigation plan is technical. A management plan sounds
more general. Clancy stated the language in subsection .260(E)(3) should say
"watershed -based n9+tigat+en management plan."
McShane moved to amend language throughout subsection .260(E)(3),
"watershed -based n9itigatien management plans."
Motion carried 2 -0 with Fleetwood absent,
Nelson stated they must make the same change to subsection .260(E)(2).
Natural Resources Committee, 6/21/2005, 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.
McShane moved to amend subsection .260(E)(2) for consistency, "The
County many shall facilitate review and /or approve a watershed based
management plan..."
Motion carried 2 -0 with Fleetwood absent.
Roy stated the committee will schedule a special work session on the critical
areas ordinance next Tuesday.
(Clerk's Note: End of tape one, side 8.)
ADJOURN
The meeting adjourned at 11:03 a.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Sharon Roy, Committee Chair
Natural Resources Committee, 6/21/2005, Page 11