Loading...
HomeMy WebLinkAboutNatural Resources March 29 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 March 29, 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: Barbara Brenner COMMITTEE DISCUSSION 1. DISCUSSION WITH THE ACME /VANZANDT FLOOD CONTROL SUB - ZONE DISTRICT ADVISORY COMMITTEE REGARDING WORK BEING DONE ON THE NOOKSACK RIVER (AB2005 -083) Chris Hatch, Acme /Van Zandt Flood Control Subzone District Advisory Committee Member, submitted and read from his update (on file) regarding the Lower Hutchison Creek Restoration Proposal from the Lummi and Nooksack tribes. Roy stated the committee had two major questions during the last update of this project. One question was about who is liable if this structure fails. The second issue was the committee's request that the Executive consider the Council's concerns when he makes a decision. Fleetwood asked the County's liability if the riprap on Hutchison Creek were removed. Paula Cooper, River and Flood Division Manager, stated Senior Civil Deputy Prosecutor Dan Gibson discussed liability issues with the subzone advisory committee. The Halvorson case from Skagit County decided that public agencies doing flood control work were not liable for damages from failure of flood control work. Immunity from liability would apply to fish habitat projects, especially when there is a dual purpose with flood control. It would be up to the people to demonstrate there was negligence and to find blame with the engineers if the project fails. Fleetwood asked to discuss this issue with Dan Gibson during the next committee update. Natural Resources Committee, 3/29/2005, 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. Brenner asked if Mr. Gibson researched the issue. Cooper stated she doesn't know the level of Gibson's research. Brenner stated there is a huge difference between flood management and habitat management. There has to be a balance between habitat management and protecting people's lives and property, which is the number one goal of flood management. She can see how there would not be liability if this was unforeseen. With habitat management, there would be a degree of liability. They're still talking about people's lives. Cooper stated the "plug" component of the project is a flood control component. That might confuse the issue in this case. Roy stated they need Mr. Gibson here. Brenner stated she wants to hear from Nr, Gibson, but maybe they should find out more about balancing the two. Roy stated they need to have a discussion on liability. She would like to move forward with the project however it looks like, with strong assurances that they won't have to face the issue of liability because the design will work. That's where the County's obligation lies. Make sure people with the expertise really feel like this is a viable, workable project and the County is not going to be faced with reopening the channel. Cooper stated design engineers have done careful analysis and feel the design is good, but there are no guarantees in river work. Roy stated she understands, but would like the experts to agree. Brenner stated the most important thing is to have some level of confidence by the people who live in the area. Some of the people have done much research and understand the river in their area. They are lay- experts. Jeff Rainey, Acme /Van Zandt Flood Control Subzone District Advisory Committee Member, stated this is complicated issue. There are other issues in that area that this project can affect. A rock wall upriver has been maintained by the City of Bellingham, but it's beginning to fail. This project may be irrelevant if that wall fails. Two other areas downstream have to be addressed in terms of this project. It's difficult in the timeframe they have to come up with a recommendation. The subzone is trying to get information from the City about it's intent for the wall. Property owners directly behind the rock wall in the area will be impacted both ways. Their concerns aren't satisfied. Fleetwood asked Mr. Hatch to indicate certain locations on the photo. Roy asked the timeline. Cooper stated they want to start construction in July. They need to take steps to implement the design. The sooner they get approval, the more comfortable the proponents will be. At this point, the proponents are moving forward because they won't be able to pull it off otherwise. Natural Resources Committee, 3/29/2005, 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. Rainey stated the proponents want to get the contracts out right away. Roy asked if salmon recovery funds must have County approval, and if that's unusual. Bruce Roll, Assistant Director, stated that is unusual. Fleetwood stated that at the last meeting, there was a question about whether or not the designer, the Nooksack Tribe, the Lummi Nation, and a representative from the Acme /Van Zandt area could reconcile all the concerns to create a design that achieved the goals of the project while protecting the land. He asked if that conversation was had with all the designers. Rainey stated they tried to have that dialog from the beginning. All along, the advisory committee stressed that it doesn't oppose log jams, but they would like to work with the community to address concerns in the area to get fish and protection. The proponents have been stonewalling the committee's efforts, saying it's all about fish. Fleetwood stated the Natural Resources Committee specifically asked that the proponents work with the community to reconcile concerns, but he's hearing that the proponents never told the engineers to reconcile the community's concerns. Hatch stated he's been trying to find an answer to see if that can occur. The Nooksack Tribe put the design together. The Lummi Nation has the agreement with the State to do the work. The Lummi Tribe may transfer funding to the Nooksack Tribe to do some of the work. To date, the response he's gotten is that the tribal policy decision is that the rock must be removed. Neither Alan Soicher nor ]im Henson appear to be in a position to talk about anything other than that. That creates difficulties for the advisory committee to address concerns and needs of the community. Fleetwood asked if the decision on whether to consider modifying the plan was a policy decision of the Lummi Indian Business Council. He asked if they actually voted on the decision to remove the riprap. Hatch stated he doesn't know. The only response he's received is that the decision was a policy decision and that Alan Soicher wasn't in a position to negotiate or compromise that decision. Roll stated he will meet with representatives of the Lummi Nation tomorrow to discuss some of these specific policy issues. At this point, there are indications that staff is uncomfortable moving beyond historic policy. The meeting tomorrow will be to see if the design can change to meet the needs of the community and fisheries. Brenner asked if anyone from the subzone advisory committee can be present at the meeting. Roll stated the Lummi Nation called the meeting. Ms. Cooper will bring the information back to all groups. Brenner stated she is concerned about separation. They want all parties to work together. Roll stated that is the outcome they need. However, everyone Natural Resources Committee, 3/29/2005, 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. must respect the government -to- government relationship and comfort level of the tribes in engaging in the process. The tribes aren't always willing to engage. The outcome needs to be what they are saying. The community needs to approve of the project and the project must meet fish needs. The venue is different when they deal with tribes. Roy stated it's premature to make a hard decision at this point in the process. It might be worth it to reiterate the committee's concern that this is resolved in a way that all parties can approve. That is the direction of this committee as staff goes into the meeting tomorrow. In addition, the committee would like to meet with Mr. Gibson on liability issues. She asked that the County Council opinion be considered even though it's an administrative concern. Fleetwood asked to modify the committee's posture a bit. Don't insist on a compromised version, but respectfully request they make every effort to achieve the goal. Roy stated they need to strive for total agreement, but they may not get it. It isn't a matter of making everyone happy. It's trying to come to a decision that everyone is comfortable with. Brenner stated she agreed there are people from both sides who may not agree to anything. From what the committee has heard, Mr. Hatch and Mr. Rainey represent a middle ground and there is still a problem with the vision. Roy asked staff about the rock wall upstream. Cooper stated the City is looking into it and meeting with the County engineer. She's talking to the City weekly. Fleetwood asked why Bellingham has an interest. Cooper stated the rock wall protects the City's water diversion pipeline. The City is looking at whether it should rebuild the wall or bury the pipeline farther. Hatch stated a portion of the dike that was supposed to be removed was put into the river as part of a legal settlement with the City of Bellingham. In due diligence, he would like clarification from the City or County Council to determine whether it's even possible to remove the dike, given that it was required as part of a settlement. He's seeking an answer to that question. Cooper stated they're seeking an answer from the City's attorney. Gayle Everett, resident, stated her grandfather homesteaded along the Nooksack River. The upper rock is her property. She has serious concerns about its removal. If removed, she could lose 40 acres of her property. She appreciates Councilmember Brenner's concerns about the property owners. Natural Resources Committee, 3/29/2005, 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. Art Anderson, Countywide Flood Control Zone District Advisory Committee Vice - Chair, stated he supports a recommendation from the subzone on this project. As a countywide advisory committee member, he is also concerned. When the meeting happens with the Tribe tomorrow, some of those items could be noted in the conversation. Somewhere along the line, that conversation needs to be held. He has a lot of confidence in the ability of old- timers, especially farmers and loggers. They have a lot of practical wisdom. There may be some common sense to this project. He supports the people in the upper valley. The Council wants to do the right thing. Don't be pushed. The final decision will be made by the Executive, hopefully with a recommendation of the Council. The July construction date seems expeditious. There are many logs in a field in Acme. He thanked the committee for its mindful decision. Hatch stated the 50 percent design work was just provided to the advisory committee in January. Don't assume the advisory committee has had this for the past year. The subzone may support a project that is a win -win for everyone. It would support taking some time to really nail down a good project that everyone can be proud of. They've gone through a process for the last 12 months. It would be helpful for the subzone advisory committee to know from the Natural Resources Committee and the Council how much diligence it should exercise. Roy stated the subzone is not a salmon recovery group. It's perspective related to flood issues is appreciated. The other piece is that the subzone seems to be the conduit for community concerns. Keep diligence on the flood control portion of the project. It seems they've become the go- between with the community, and maybe that's a role the Council needs to play. Hatch stated a job of the subzone advisory committee has been as liaison between the community and Council. The unique process is working well. The question is how much scrutiny the subzone advisory committee should provide on the position the County will be in, should the project move forward as proposed. They've identified the risks. He asked how much work they should do in that regard. Fleetwood stated the Mr. Hatch has made the subzone advisory committee's position clear. The Natural Resources Committee understands its concerns and perspectives. The Salmon Recovery Funding Board is tying funding approval to the County's approval of the project. That gives the County some authority for approving the project. At this point, the councilmembers need answers to questions the committee has asked, which will affect the Council's recommendations to the Executive. He doesn't know what else the subzone advisory committee can do. McShane stated this is a salmon enhancement project. It might comes down to a decision on whether this is an appropriate location for a salmon enhancement project. He asked if that is what they are thinking. There are many places where it is appropriate to do salmon enhancement, and other places where it would be a waste of money. The subzone advisory committee has done a good job raising Natural Resources Committee, 3/29/2005, 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 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. concerns to the decision - makers. He asked if the subzone advisory committee is feeling a bit burdened. The subzone committee members are getting stuck with being the liaison with the community, for better or worse. The subzone advisory committee is having to rely on the opinion of others. Hatch stated that is true. He's spent an enormous amount of time on the project, and is prepared to spend more time. They are dealing with constraints. If the dictate is to take out the dike, that doesn't leave many options for where to do the project. The diligence is confined to a particular location with particular parameters. The question is how much diligence the subzone advisory committee should do. If they need to do more and really work with these folks, the subzone advisory committee needs that direction from the Council. McShane asked what kind of development project. Hatch stated that when the Lummi Tribe originally applied for the SRF Board grant, the tribe indicated it would for an Acme /Saxon working group, on which the subzone advisory committee was supposed to be a member of. That group was to develop fish project treatments. Unfortunately, that group didn't come together. The subzone has a limited role in determining where projects in its jurisdiction would be located. Over the last year, the advisory committee discovered this project and has had to deal with it. It's a very different situation from sitting down at the table to figure out where it makes sense to do a project. McShane stated the Council approved work on channel migration zone boundaries for the South Fork Valley and in other places. Cooper stated that is correct. Staff is in the midst of drawing preliminary channel migration zones. There is a draft conclusion that the County really needs to draw those channel migration zones to have a context within which to put all this work. McShane asked Mr. Anderson's concerns about moving forward with the channel migration zone in general. Anderson stated it will be a contentious issue. The countywide advisory committee doesn't have the expertise to draw those migration zone lines. The committee can make recommendations. When the County starts to not protect agricultural land, there will be locations with public infrastructure that must be defended. Once the public is aware of what they're doing and there are public meetings, it will become a contentious issue. He's not looking forward to doing the work. It must be handled properly. Notification must be made before there are hard and fast recommendations. McShane stated that is going to be a very hard job to do. (Clerk's Note: End of tape one, side A.) McShane stated the countywide committee will ultimately make a recommendation on a final channel migration zone. He asked if establishing that zone is a Council decision. Cooper stated that decision will come before the Council. The line is a policy decision. It has implications for what people can do regarding land use and to protect property. Natural Resources Committee, 3/29/2005, 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. McShane stated having a zone is necessary for permitting and also for cost - benefit analysis. He asked if this project would be easier if they had established the zone in the 1990's. Cooper stated a hard question is whether putting a lot of stuff in the middle of the river will cause the river to go outside the channel migration zone. That question is hard to analyze. Having a zone will provide context for such things. There are a lot of gut decisions that can't be made with an equation. Anderson stated there are places in the river system they've always protected. A zone would definitely protect those areas. The Departments of Ecology and Fisheries also have to be involved in this process. It won't happen quickly. Fleetwood asked if this is a good place for a project. It's premature to have that final discussion now. They don't have an answer yet if they can modify the plans and achieve the project. He wants to know if they can answer that question. Brenner stated it seems like this is all piecemeal. The channel migration zone will come to the Council, but the project is not going to be the Council's decision. All the pieces go together in one way or another. She asked if the sub -zone has talked to the County Executive. Hatch stated they have not had that opportunity. The sub -zone advisory committee thinks there is a more comprehensive approach to dealing with the risks identified in the reach than the approach they're using now. The process may be clarified at the meeting tomorrow. There are some fish enhancement opportunities, but it must be within a certain context to identify and mitigate risks. The sub -zone can pay a good role in that process. The sub -zone needs a seat at the table to make it work. Brenner stated that when the administration meets with the Lummis tomorrow, the Lummis must understand that they all need to work together. Hatch stated the sub -zone has been analyzing old photos. It's important to remember that the diking of the area was precipitated due to the pipeline. Roy stated the tribes seem to be making a basic assumption that this is a good place for salmon enhancement. The County needs to make sure that is true. Anderson asked the amount of board -feet of lumber in the field. The sub - zone and committee may feel under the gun because all that wood is in the field, waiting to go. Act like that wood is not there when making decisions. Roy stated that is not a factor to her. Anderson stated neither the sub -zone nor the Council approved the placing of logs in that field. Natural Resources Committee, 3/29/2005, 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 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. Hatch thanked the committee for allowing them to address the committee. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 10:30 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, 3/29/2005, Page 8