HomeMy WebLinkAboutNatural Resources September 13 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
September 13, 2005
Committee Chair Sharon Roy called the meeting to order at 9:32 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
COMMITTEE DISCUSSION
1. ORDINANCE AMENDING WHATCOM COUNTY CODE TITLE 11,
BOATING AND SWIMMING, TO LIMIT THE USE OF LIMB - PROPELLED
FLOTATION DEVICES ON THE SOUTH FORK OF THE NOOKSACK RIVER
FROM JUNE 1 THROUGH OCTOBER 31 (AB2005 -173A)
Roy moved to recommend approval to the full Council.
McShane stated he would like to know the reason for the distinction between
a limit on limb- propelled flotation devices and a simpler limit on watercraft, with
exemptions made for certain types of acceptable watercraft use.
Roy stated legal counsel included that language to make the ordinance
legally defensible. The term "limb- propelled device" came from an attempt to
describe exactly what they want to limit. The problem is with anything that
splashes and not propelled by oars. People jumping in and out of the inner tubes
are the problem. That was the conclusion.
McShane asked if it would be simpler to not allow any boating or any
floatation device during that time. It would be helpful to hear from people who
understand the disturbance issues.
Nelson asked if the whitewater rafters were prohibited from the North Fork.
They are not as frequent, yet they were prohibited. He asked if that was for the
same reason.
Natural Resources Committee, 9/13/2005, 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.
John Thompson, Senior Planner, stated the North Fork is closed to rafting
and kayaking. The U.S. Forest Service allows permits for commercial rafting
companies. The Forest Service discourages inner tubes and kayaks.
Roy stated the legal issue was the wording itself.
Nelson stated there is a difference between limb- propelled floating device
and rafts.
Roy stated she understands that the limit is to limb- propelled watercraft
only. Rafts with oars are okay. She asked why they chose the term "limb -
propelled floatation device" instead of all boats.
Royce Buckingham, Senior Civil Deputy Prosecutor, stated they can't prohibit
all craft, or they will get into the navigable waters issue. Only ban what watercraft
they must. San Juan County banned Sea -boos. It was very specific about banning
only those craft to take care of a specific problem.
Nelson asked why they are able to ban all watercraft on the North Fork, in
essence. Buckingham stated he doesn't know that it has been challenged.
Roy stated the Forest Service has control over licensing and permitting what
operates.
Nelson stated that is for commercial use only.
Thompson stated the Forest Service can't stop, but seriously discourages,
private recreational use on the North Fork. The ban is on the commercial
operators. Commercial operators must have permit and Endangered Species Act
(ESA) review.
Buckingham stated a concern is that people would trade out their inner tubes
for rafts once the ban goes into effect, which is why he tried to include it in the
ordinance. Trying to distinguish the watercraft going down the river without being
over -broad was difficult. There is not a perfect solution. They may run into a legal
challenge with a ban on rafts. They may also have a problem with people switching
their inner tubes for rafts.
Roy stated one solution would be to ban rafts and then see if they are
challenged legally. It's not a perfect solution.
On the North Fork, the time span of the ban is much shorter than what is
proposed for the South Fork. She asked for an explanation. They are looking at
the time the Chinook are actually in the river. Thompson stated that on the North
Fork, Chinook generally start spawning a couple of weeks earlier. The North Fork
ban is timed based on spawning behavior. In the North Fork, once spawning
Natural Resources Committee, 9/13/2005, 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.
behavior is spotted, the runs are shut down. In the South Fork, the issue is
disruption of the salmon while they are making their spawning nests, called redds.
Salmon hold in the South Fork prior to spawning. Salmon also hold in the North
Fork prior to spawning, but the water temperatures in the South Fork are greater
and the Chinook are under more stress. A problem includes disturbing the Chinook
when they are in the few cooler areas in the South Fork. By October when the river
level is higher, a boater won't bottom out and disturb the redds as easily. Also, the
demand for riding inner tubes is way down in October.
Roy stated the ban would be more recreation - friendly if the timeline were
shorter. However, the objective of this ordinance is to protect the fish. Because of
the water temperature and circumstances, the South Fork fish are more vulnerable.
Thompson stated that is correct. Another issue with North Fork fish is that floating
is allowed once spawning is done, but people can still step on and destroy the
redds. That is a bigger issue in the South Fork because of the lower flows.
Rachel Vasak, Nooksack Salmon Enhancement Agency (NSEA), stated that in
the North Fork, there is more water, so there is more habitat for the fish. Also,
there is more large woody debris, which the floaters stay away from. NSEA is
nonpolitical, and provides information only. It supports whatever the co- managers
feel is best for the fish.
Volunteers on the river found that this early summer is cooler and wetter
than in past years, until July 4t ". On July 4t ", people were observed lighting
fireworks in the river, including in pools where fish hold. Beyond July 4t", there was
a slow ramping up of continued activity. They observed 2,764 inner tubers and 896
other users on Saturdays. They observed that use during the middle of the day on
Saturdays.
Brenner asked if the tribes have their nets in the river anywhere. Thompson
stated it's not his understanding that they do.
Vasak stated the Tribe starts later in the season, when the spring Chinook
are farther up in the river.
Brenner stated one reason for enacting something like this is the problem
with the temperature. She asked if NSEA, the U.S. Department of Fish and Wildlife,
and the tribes support the concept of limited scalping in the South Fork to create
cooler areas, and if they would express that support to the Army Corps of
Engineers. Thompson stated the current Salmon Recovery Plan focuses on
restoring natural habitat forming processes and restoring physical structures that
lead to the recovery of those natural habitat forming processes. It's unlikely the
tribes will support a scalping proposal.
Brenner stated they can put all the logjams they want in the river. It won't
stop the sediment from coming down the river, which has been happening for a
Natural Resources Committee, 9/13/2005, 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.
number of years, since they stopped dredging the river. Thompson stated there is
not much of a history of gravel scalping in the South Fork. It doesn't have the
glacial sediment sources that the north and middle forks have. There is not a long -
lasting benefit to scalping. The emphasis of the recovery planning effort, tribes,
and Washington State Department of Fish and Wildlife priority is restoring natural
processes. A scalping will only last until one high flow. The South Fork particularly
lacks a complex woody debris that forms pools. If a pool is deep enough, the
temperature could be different by several degrees deeper down.
Nelson asked what the term "other users" includes. Vasak stated that term
includes swimmers and people hanging out at the gravel bar.
Nelson asked if there was an assessment between limb- propelled craft and
non -limb- propelled craft. Vasak stated they only observed people who rode inner -
tubes. They only saw a small number of rafters. They tried to educate the people,
but it didn't go well. Their best success was with a table of information at
Everybody's Store. They were spurned by the population on the river, most of who
were under the influence of something. They also witnessed numerous instances of
littering, which is a larger concern of people who live the area. They mapped out
17 pools above Saxon /Acme area and four pools below. There is a huge volume of
litter in that system. There should be some measure taken to allow the use of
bathroom facilities and trash receptacles in the area.
Nelson asked if there have been any attempts elsewhere in the state to
prohibit this activity. All methods require some sort of policing. He asked if there
are other methods. Vasak stated they don't know if any other regional fish
enhancement groups with similar experiences.
Roy stated she has information on activities on a river in King County. They
did a strong educational intervention with the people who used the river. However,
the difference was that there wasn't an endangered species in the river. The South
Fork is unique.
Vasak stated the North Fork closure timing is from spawning activity through
the period of gravel incubation of the eggs. The river is open when they believe all
the fish are out of the river safely. Most of the fish development in the gravel is
done in the winter.
Fleetwood referenced the Conclusions statements in the ordinance, item
number 2. He asked why the Forest Service chose to close the North Fork, not the
South Fork.
Roy stated
the Forest Service has
control, through
permitting, of rafting on
the North Fork.
They don't on the South
Fork. The State
Department of Fish and
Wildlife (WDFW)
staff have agreed to do
enforcement on
the South Fork. Sheriff
Natural Resources Committee, 9/13/2005, 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.
Elfo was very supportive of the offer. He has already deputized some of the WDFW
people.
Brenner asked the position of the National Forest Service on this ordinance.
Nelson stated the National Forest Service has no jurisdiction. The South Fork
is not in a National Forest.
Fleetwood asked if this season is over, and if a ban would take effect next
season. He referenced conclusion six, and asked to include something factual that
supports that conclusion. Buckingham stated he was given the conclusions from
earlier discussions. He can add that information.
Brenner asked if it would be helpful to do a closure that was more limited in
time and more limited in area. She asked if it would still help the salmon.
McShane stated that is a policy position at this point. The decision is how far
they want to go, including the length of the river and the effective dates. One idea
may be to designate some use for just a portion of the area as a swimming hole or
inner tubing area. They may be able to make a place for people to go to enjoy the
warm water without impacting the fish pools. They can designate some such area
in the future. The State Department of Natural Resources (DNR) staffers suggested
it.
Roy stated they need to look for other areas to support these recreational
activities without doing damage.
Brenner asked if there is some benefit if the river is closed some of the time
in some of the area. Thompson stated the spring Chinook will be in the South Fork,
from the confluence to the barrier at river mile 31. The salmon use the entire river
for spawning, hatching, and rearing. Also, the temperature increases from July
through September. The river system has fish throughout. Spawning is done from
the first of August through the end of September, then incubation happens through
the late winter months.
Brenner asked if a more limited ban would provide some benefit. Thompson
stated the timeframes proposed have already gone through that filter. This is what
the co- managers recommend.
Roy stated the fish biologist have already narrowed down a potential ban to a
compromised area. It focuses on the most critical time and area.
Thompson stated that to be most protective, they could close the South Fork
from April through January.
Natural Resources Committee, 9/13/2005, 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.
Vasak stated
that to be
most protective, they could close the entire
South
Fork permanently.
However,
they need to compromise. Fish are there all
year
long. Due to less
habitat, environmental stressors, higher temperatures,
and a
lower volume of water, the fish are already struggling. Every little bit
helps.
Annually, there are fewer than
200 spring Chinook in the system in general.
Daily
during the summer,
there are
more than 2,000 people on the river. That is a big
discrepancy.
Jeff Margolis, 5465 Potter Road, Deming, Everybody's Store owner, stated
this is a very complex issue. He presented to the committee a bunch of canary
grass he gathered from a creek near the river and railroad crossing in Van Zandt.
The railroad sprays herbicide into the creek on this canary grass. Now, the Council
is deciding whether or not to do something on this inner tubing issue.
He has to take the posture of the businessman, which he doesn't like to do.
He is an environmentally conscious person. His business went down by 75 percent
when the news came out that the Council is considering keeping people out of the
river.
(Clerk's Note: End of tape one, side A.)
Margolis continued to state that there are two issues, fish and recreational
use. To a great extent, the recreational use has become the engine that has driven
the interest in this issue. He asked if the Council has said anything to the railroads
about not using herbicides along the creeks that go into the river.
If the ban goes through, next year people will be on rafts. That issue is not
confronted. There are thousands of people who have a prima facia public need that
has not been confronted. The Parks Department is willing to begin considering the
recreational needs in the South Fork Valley. Part of the problem is that people are
having too much fun. The disorganization and chaos precipitated animosity and
energy to abolish the activity. Other problems that are contributing to the issue,
including a tribal dump on the river, the railroad, and logging activities. The
mountains along the South Fork are scalped and bare. Find a compromise so
people can have fun on the river. He's willing to have regulated activity. Tourism
and recreation is a major industry in eastern Whatcom County. They have to work
with recreational resources. According to his research, the salmon come up from
January through August and go above Acme. Ban inner tubes above Acme.
Nelson asked if Mr. Margolis is advocating for banning inner tubes or forest
practices. He asked if Mr. Margolis is saying they should find common ground
instead if have a ban. Margolis stated don't ban the inner tube activity all the time.
He doesn't see a genuine commitment from the County.
Nelson asked if Mr. Margolis advocates for banning inner tubes and /or
forestry practices. Margolis stated he's not addressing that at this time. He's
Natural Resources Committee, 9/13/2005, 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.
saying there is room for compromise. It's obvious they are compromising people.
Look at the real practices. Tribes extract these same fish. The forestry practices,
although valid legally, don't represent the commitment to save salmon. There are
other ancillary activities they've not committed to doing anything about.
Nelson asked if Mr. Margolis wants the County to be committed to doing all
the things necessary. Margolis stated he wants to be treated the same as all the
other users.
Brenner stated the area targeted for closure is above Acme.
McShane stated the proposed target area is from Edfro Creek to the Acme
Bridge, based on the number of pools. Margolis stated he didn't realize the target
area was limited.
Roy stated she appreciates the information about the railroad spraying for
reed canary grass. It is something on which the Council may need to make an
opinion.
Nelson stated make sure the ban works to the benefit of all. His concern was
with a strict ban on the South Fork having an adverse effect economically and how
the community is perceived. This is the third time this issue has come forward,
since he's been on the County Council. People are drawn to water in hot weather.
It would be nice to have the restriction and to continue to educate people to behave
responsibly. The Council needs to do more than just ban inner tubes. They need
to put funding to the Parks Department to find and create recreational areas. It
isn't fair that the people in the community aren't able to use the water resources in
the area for recreational activities.
Margolis stated it might be written so that people will not be able to get into
the water in Acme. Give people leeway to get into the river above the bridge. As a
result of the emotional aspect of all this, some in the community have worked to
undermine the public's access to the river by keeping people from parking. This is
a big mistake. The Parks Department must focus on the entire use so there is
something going on and fewer abuses. Make the best of it for everyone involved.
If they tacitly acknowledge the use, without allowing it to be feasible, there is no
use. There is a public need that has to be recognized.
Brenner stated she would like to include language in the ordinance so that
public access will be provided at or near the acme bridge and public services and
trash containers will be provided.
Roy stated anyone who backpacks or hikes knows to haul out trash. People
can be trained to haul out their trash. Include a statement of pursuing other
recreational opportunities by the river. She is hesitant to be specific about being
Natural Resources Committee, 9/13/2005, 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.
near the bridge, however they do need to provide a place for people to access and
enjoy the river.
Nelson asked how much it would cost for the Parks Department to do a
recreational evaluation of the area. Despite the Nessett Farm purchase, there isn't
adequate facilities for recreational public use. He asked what it would take.
Mike McFarlane, Parks and Recreation Department Director, stated will cost
$10,000 to $20,000 to review the entire corridor. There are also flood properties
that have a public use and are used for access, even though they aren't connected
to parks.
Nelson stated he would like to encourage the committee to include language
in the ordinance to show that the County will continue to work with the community
as well as protect the habitat.
Roy stated ordinance is not the place to put in an administrative budgetary
request. Make a separate motion to request that the administration allocate funds.
McShane stated they should have this issue before the Council separately.
There is publicly -owned land on the river. The DNR owns and manages some of the
land on the river. Jointly figure out a way to use those stretches of the river, while
considering the fish issues also. Develop fish - friendly recreational uses.
Roy stated the committee could request that the administration put forward a
proposed budget amendment for a consultant to look at recreation in the area,
including consulting with other agencies such as DNR and WDFW.
Brenner suggested amending Whatcom County Code (WCC) 11.20.025,
"...raft on the waters section of the south fork of the Nooksack River between Edfro
Creek and the Acme Bridge..."
Roy moved to amend WCC 11.20.025, "...raft on the waters section of the
south fork of the Nooksack River between Edfro Creek and the Acme Bridge..."
Motion carried unanimously.
McShane moved to amend WCC 11.20.025, "... Edfro Creek and 100 feet
upstream of the Acme Bridge...."
Margolis asked if 100 feet is an adequate distance given the flood control
land and the potential for using it for public use. The north side of the river is more
accessible, but there's a parking prohibition there. The County bought land there
for flood control. Use that public land as a public area for a variety of park -like
uses. Go more than 100 feet.
Natural Resources Committee, 9/13/2005, 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.
Brenner asked if the County needs to spend money to figure out a plan for
the Betty Close property. McFarlane stated the County does not need to spend that
much for just that small property. He heard a concern from the committee about
litter problem. They need to look at the entire corridor.
Roy stated they must look at all the properties, not just one.
Fleetwood stated this is not ready to leave committee today. The ordinance
will not affect this season, so time is not of the essence. The committee needs
more time to consider the question about whether there are less restrictive
alternatives. There are questions about enforcement, the amount of money
necessary, and whether or not they should consider enforcing with more personnel.
They have not adequately considered those issues. They strengthen the quality of
the ordinance if they can prove they've considered less restrictive alternatives.
With more time, they can consider those less restrictive alternatives. There is no
rush on this issue. There is no effect until next June.
Roy stated they have talked about enforcement and permitting. They have
had answers from experts on those issues. There is a commitment for enforcement
from the WDFW, with the Sheriff's approval. The committee has some auxiliary
motions related to giving direction to the Parks Department. There is no time rush,
but they've already gone through the process. There is no reason to keep it in
committee any longer.
McShane stated the motion of 100 feet could act as a placeholder for any
access location upstream. They can revisit the actual location.
Nelson stated this is an example of an issue for which the Council has tried to
come up with a solution for over the past 12 years. This doesn't mean they can't
look at amendments next year. This action has gone a long way to address a
concern that's been expressed for the last few years. One hundred or two hundred
feet would be a good placeholder. Mr. McFarlane would be able to come back with
an overall plan to address recreational issues in those areas.
McShane amended his motion, to amend WCC 11.20.025, "... Edfro Creek
and 200 feet upstream of the Acme Bridge..."
Motion carried unanimously.
McShane moved to amend WCC 11.20.025, "(D). Department of Natural
Resources- and Whatcom County- designated swimming /boating areas on the South
Fork of the Nooksack River." In the future, they can have a designated area
between Edfro Bridge and Acme Bridge.
Motion carried unanimously.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Roy moved to request administration to come up with a contract and scope
of work to provide a consultant to look at recreational and swimming activities
along the Nooksack River, and consult with other public agencies.
Motion carried unanimously.
Roy withdrew her motion to recommend approval and stated this item would
be held in committee. Include staff from Lummi Tribe and WDFW at the meeting.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 11:02 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, 9/13/2005, Page 10