HomeMy WebLinkAboutSpecial Natural Resources July 7 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
July 7, 2005
Committee Chair Sharon Roy called the meeting to order at 9:00 a.m. in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Seth Fleetwood None
Dan McShane
Also Present:
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)
David Davidson, City of Sumas City Administrator, submitted information (on
file). The City of Sumas supports this draft of the critical areas ordinance (CAO).
This version satisfies his concerns regarding wellhead protection areas.
Jeff Chalfant, Senior Planner, submitted a memo to the Natural Resources
Committee dated June 28, 2005 regarding the conservation program on agricultural
lands (CPAL).
(Clerk's Note: Due to a disruption in the sound system, approximately three
minutes of the meeting were not audiotaped.)
George Boggs, Conservation District, stated that in the 1997 CAO, the
concept was that agriculture was a built -out activity, and that other activities
immediately adjacent to and farther away from critical areas could have impacts.
There are a number of critical areas of consequence, including groundwater
recharge areas, wetlands, and fish - bearing streams. One doesn't have to near a
fish - bearing stream to have an impact on it. Drainage is essential for Whatcom
County farmers. There are about 14,000 acres that are artificially drained with tile.
There are many ditches along side the roads that carry water and ditches that feed
into that drainage system. There are as much as 50,000 acres that are artificially
drained. They may not be fish - bearing, but they can be avenues of transport of
sediment, nutrients, and bacteria that can impact critical areas. In 1997, the
concept was to protect critical areas with specified buffers, which aren't the solution
in all instances.
Natural Resources Committee, 7/7/2005, 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.
Farmers were allowed relaxation of those buffers if they adopted a farm plan
to deal with potential impacts from agricultural activities. In the past several years,
they learned that there are more commercial and non - commercial agricultural
activities in Whatcom County than the Conservation District can service. It's too
expensive to give every operation a farm plan. Funding wasn't consistent to
provide staffing and resources to deliver all the farm plans requested. Citizens
were upset that this option was illusionary.
To accommodate the requests, they reviewed the workload. They divided
the workload into three groups, based on the potential impact on the agricultural
activity due to the magnitude of the operation: low impact, moderate impact, and
high impact. Hobby farms are low impact operations that deal with mud, manure,
managed pasture, and possibly a riparian area. With hobby farms, very rote
prescriptions are typically applied through a standard conservation plan that is done
with a checklist. It is straightforward and accessible. The farmer with less than
one animal unit per acre can pick up a packet and work through it. The
Conservation District can host workshops for farmers throughout the year. The
solutions will be straightforward and readily available. The level of one animal unit
per acre is a safe level for nutrient loading. It is a level most folks seem to
understand.
On the other end, there are high impact activities. Both the federal and
State governments monitor and manage those sorts of operations. The dairy
Nutrient Management Act has been extended to apply to all commercial livestock
operations. If folks must have a dairy nutrient management plan or a permit under
the National Pollution Discharge Elimination System (NPDES), it will be accepted for
the local process.
The third category is the moderate impact activities. The new proposal is to
have a self- assessment workbook with a series of questions to determine
compliance. Workshops will aid the producer to go through the self- assessment.
The producer may hire a consultant if they want. The individual with a farm that
has a potential impact is the individual who will do the assessment and come up
with solutions.
The Conservation District doesn't have the resources to do all plans. It will
give farmers the ability to develop their own plans, especially the smaller farms.
They will take advantage of planners in the local private industry. Therefore, they
will be able to achieve higher protection of critical areas.
Roy asked if the operation with a moderate potential impact has a level of
activity over one animal unit per acre. Boggs stated that if the operation has
livestock, the level is over one animal unit per acre. The operation is also not
subject to the Dairy Nutrient Management Act. It includes the crop farmers as well.
Roy stated the workshops are a great approach. She asked if the
Conservation District will work with anyone on the workshops and if other agencies
Natural Resources Committee, 7/7/2005, 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.
are involved. Boggs stated the Conservation District wants to work with the County
Planning and Development Services Department, which is now the responsible
entity for review and enforcement of these plans. The County will be the lead
agency. The Conservation District will provide expertise on certain status reviews
and workshops. The Conservation District is putting together the workbook.
Roy asked if this is going to impact staff. Chalfant stated the department can
rely on consultants to help provide services to folks, for a fee. If staff provides the
service as a courtesy to property owners, it will affect the staff level.
Roy asked the fee to the individuals. Chalfant stated he believes the fee for
a plan is less than $1,000.
(Clerk's Note: The committee took a ten - minute break.)
Boggs stated there is an opportunity cost associated with respecting buffers
as the only solution. That adds up to acres of land not used around the county.
Landowners lose the ability to farm that area. There is a cost associated with that
loss. However, the difference between an agricultural activity and a residential use
is that a residential structure doesn't have a continuing potential for pollution like
an agricultural activity does. Therefore, the agricultural users need to incorporate
annual, continual protection all year long. That is something that they need to do,
as a business, to meet the critical area requirements.
The Conservation Program on Agricultural Lands (CPAL) provides flexibility.
If the farmers are good stewards, they can make a business judgment on providing
protection. The County is offering that flexibility of alternatives. There are costs to
CPAL. There must be inspectors who are conversant in planning and best
management practices. They will need to provide some community education. The
Conservation District typically gets resources from the Conservation Commission.
Typically the major consumers of the State's budget are the social programs
and education. There is just a little left for everything else. Natural resources
consumes only seven percent of the State budget. The State of Washington hasn't
addressed the growth in education and social services at a level of 12 percent per
year. Given the constitutional cap on increasing revenue sources, revenue grows at
only six percent. Therefore, there is continuing pressure on natural resources
services. The County needs to find a long -term solution for funding environmental
sources. The district will continue to have some resources. The minimum they can
do is have regulators to make sure people comply with the plans. They don't have
to have an educational program or other things. However, have a discussion on
whether the County feels this is important.
Fleetwood referenced section 16.16.290(C)(5) regarding the confidentiality of
the conservation plan contents. Boggs stated that in dealing with folks, they want
their business matters kept private. Certain aspects should be confidential. Beef
operators are concerned about others knowing how they feed. Confidentiality cuts
Natural Resources Committee, 7/7/2005, 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.
the balance between a need to know there is a plan and that it's being followed.
Balance the need for oversight with privacy rights. Confidentiality rights are
paramount statewide. The County is only retrieving summary information about
location of the operation and best management practices (BMP's), as opposed to
the entire conservation plan. When the Conservation District does inventories for
complex operations, they go through everything, much of which isn't germane to
protection of critical areas.
Roy asked if the Agricultural Advisory Committee has been involved in this
process. Chalfant stated it reviewed this section of the code. The committee
supports it as it's written.
McShane stated the Natural Resources Committee passed an amendment
that he voted against, on section 16.16.270(A)(2)(a). Boggs stated agriculture
should be identified as a reasonable use. In fact, they are at odds with the notion
that the only reasonable use of a property is to build a dwelling. That notion is
fostering the conversion of land from agriculture to residential use. Farmland
should stay farmland. If they take the use out of agricultural use, the agricultural
land will be converted to residential. Agriculture should be a reasonable use as an
option.
Chalfant stated that taking out the term "including agricultural use" doesn't
mean agricultural isn't a reasonable use, it just doesn't note agricultural use
specifically. They don't specifically call out single - family residential use either.
McShane stated he liked that term because it's a philosophical viewpoint that
agriculture is important, and they should give deferential treatment to agriculture.
Agricultural use might cause harm to the ecosystem, but it's also significant to
keeping them alive.
Boggs stated Lewis County recently concluded that no agricultural lands have
long -term significance due to continuous erosion. That notion was struck down on
appeal. However, he can foresee that the notion that agricultural use is not an
economic use would be argued for before the Hearing Examiner. Give agricultural
use the dignity of being identified specifically. Recognize it has to be something
that has been ongoing for five years, or else it terminates. Calling it out in this
section would provide greater protection for the continuation of agriculture.
Fleetwood stated this section doesn't afford greater or less protection, as far
as the force of law goes. Boggs stated that if the term isn't included, people will
argue that agricultural use isn't an economic use. By stating it, agricultural use is
something that should be respected. An agricultural use is something that must be
ongoing.
Fleetwood moved to amend subsection .270(A)(2)(a), "...reasonable
economic use, including agricultural use or continuation of legal non - conforming
uses;."
Natural Resources Committee, 7/7/2005, 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.
Motion carried unanimously.
McShane moved to accept the suggested changes in the memo from Mr.
Chalfant to the Natural Resources Committee, through Hal Hart, dated June 28,
2005 regarding the conservation program on agricultural lands (CPAL) (on file).
Amend 16.16.290 and the definition of "ongoing agriculture" in Article 8.
Roy stated the major reasons for adopting this is Mr. Boggs's explanation and
also the fact that the Agricultural Advisory Committee looked at this. She doesn't
want to pass something that makes the entire agricultural community upset. Mr.
Boggs and the agricultural community know this best. If this works better and
provides more education, people will have flexibility to be in charge of their own
plans. Through workshops, people will become conscientious stewards of the land.
Motion carried unanimously.
Chalfant stated the State Department of Ecology (Ecology) expressed issues
to the Council in a letter to the Council Chair dated May 24, 2005 (on file). Staff
addressed all those issues except three items in appendix A. The first item is a
change to appendix A, page A -3, section two, item one, to remove drainage
improvement districts as a moderate impact operation. Staff doesn't agree. It
allows multiple avenues for farm operators to achieve drainage maintenance
activities on their property. It also works nicely with programmatic hydraulic
project approvals for the North County. Leave the language as it is.
The second issue is a change to appendix A, page A -4, section two, item six,
to remove reference to a federal manual. Ecology is concerned about reference to
the Natural Resource Conservation Service (NRCS) provisions for dealing with
wetlands. Ecology feels this is a Growth Management Act (GMA) implementation,
and the GMA definition of wetlands should be used. The fundamental issue is
whether or not the ordinance recognizes prior converted croplands as actual
wetlands or as applicable for ongoing agricultural activities.
Margaret Clancy, Parametrix, stated the federal agencies do not regulate
prior converted croplands as wetlands. The State regulations, including the GMA,
do not exempt or except prior converted cropland. Ecology suggests that, because
the County is implementing State law through the CAO regulations, the ordinance
should keep the State definition of wetlands instead of referencing the NRCS
definition.
McShane stated this appendix applies to agricultural operations only. He's
fine with the way it is.
Boggs stated recognize that this section only applies to active agricultural
activities. The implication is that the county will lose thousands of acres of
farmland if the ordinance goes with the State definition. The State definition should
Natural Resources Committee, 7/7/2005, 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.
reconcile with actual farmlands. Federal regulations has said since 1975 that the
farm can continue to operate unless it stops for five years. If that happens, the
farm area will go back to a wetland designation. An ongoing challenge for
agricultural activities is that it is as built -out as the City of Bellingham and the Port.
However, the regulations don't ask the City and Port to undo what's been done.
Saying an area can go back to wetland designation if left alone could apply to
everyone. Go with the NRCS designation.
(Clerk's Note: End of tape one, side A.)
Chalfant stated the last issue with Ecology is to appendix A, page A -4,
section two, item seven, regarding flood proofing of all stored chemicals as a
requirement of the farm plan. The concern is that the conservation program should
address storage of these types of chemicals, which this section isn't concerned with.
Strike the term "storage and." The farm plans would address storage of materials,
as needed. There could be additional oversight of storage.
Boggs stated the farmstead map would identify a storage shed, which would
aid in emergency response.
McShane moved to amend Appendix A(2)(7), 'Custom farm conservation
plans need not address the application, mixing, ster-age and /or loading of
insecticides...."
Motion carried unanimously.
Chalfant referenced section 16.16.350(C)(1). The issue was the desire to
allow other qualified officials to weigh in on the development of a time travel
analysis for a lahar hazard when locating special occupancy structures. To address
the concern, amend the section, "professional or state or federal agency the
amount ..."
McShane moved to amend 16.61.350(C)(1) ), "professional or state or
federal agency the amount of time that is..."
Fleetwood asked how to mitigate against risks in the context of something
like Mt. Saint Helens.
McShane stated the section deals with lahars. Subsection (C) is specific to
the special occupancy structures of 1,000 people. That facility must have a plan for
getting 1,000 people out of the hazard area. The lahar may flow down the
Nooksack River from Mt. Baker.
Clancy stated the preamble to 16.16.350 is standard language in each
section. It's a statement of intent. The only reasonable measures are to provide
for evacuation and specific mitigation for locating certain types of facilities.
Natural Resources Committee, 7/7/2005, 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.
Motion carried unanimously.
Roy stated structures holding 1,000 or more people would not include any
school. She asked if they are assuming they won't build a school in that area. The
occupancy threshold seems high. There should be evacuation plans for any
building with a couple of hundred people.
Brenner asked why they would not specify schools. She asked if a school is
something they really want in that area. Clancy stated section 16.16.320 includes
the general standards that apply to all geologically hazard areas. Subsection
.320(B) includes schools and emergency response facilities. Those are not to be
located in geological hazard areas.
Roy asked the reason for setting the threshold at 1,000 people. Clancy
stated that threshold may be part of the definition of a special occupancy structure.
Roy stated the regulation is to hire someone to do an analysis for an
evacuation plan. She asked if that is too much of a burden for a structure for an
individual or family. Clancy stated typically those travel time analyses are done by
an agency such as the U.S. Geological Survey (USGS), which has done studies for
Mt. Rainier and Mt. Saint Helens. She doesn't know if the study has been done yet
for Mt. Baker. The travel time study is an elaborate study. It may be some time
before that information is readily available.
McShane stated that might be the case. If that's the case, the facility needs
to find another location. He is concerned with subsection (B). He is concerned that
people would argue there are no feasible alternatives, and structures could be
allowed in those areas because the alternatives are too expensive. That's an
acceptable argument for something like locating a school. However, there should
be a plan to get out of harms way. Until the time travel study is done, think
carefully about allowing significant structures and large populations being put in a
risky area, with no way out. He moved to amend 16.16.350(C), "Special
occupancy structures of 1,900 50 or more persons...."
Fleetwood stated the community hall in Welcome would have to comply.
Brenner stated there is not a definition of special occupancy structure. She
asked why it's called that. Chalfant stated that title is a remnant of the definition of
a critical facility, which was changed due to changes in the international building
code (IBC).
Clancy stated they intended it to be a subset of critical facilities, which they
may want to reference.
McShane stated a structure like the Welcome Grange would need an
evacuation plan, which may be as simple as walking up the hill.
Natural Resources Committee, 7/7/2005, 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.
Roy stated she is concerned that people in the hazard areas be aware and
have a simple plan for emergencies. She suggested a friendly amendment to
amend 16.16.350(C), °Speeia+ e0ccupancy structures of 1,099 50 or more
persons...."
McShane accepted the friendly amendment.
Fleetwood stated it's vague, as written. The language doesn't say if the
structure must hold or must simply have the potential to hold the occupants. He
suggested a friendly amendment to amend 16.16.350(C), "Special eOccupancy
structures with a potential to hold of 1,000 50 or more persons...."
McShane accepted the friendly amendment.
Brenner stated a house has the potential to hold 50 people.
Fleetwood stated that is his point. The language is vague.
Roy stated the intent is that the building is expected to hold 50 or more
people. Use some common sense.
Fleetwood withdrew his friendly amendment.
Chalfant stated a solution is to refer to the definition of critical facilities in
Article 8. Part A of the definition clearly defines what those structures are.
McShane amended his motion to amend 16.16.350(C), "Special
Critical facilities, as defined in Article 8, the definition of
critical facilities, subsection (A), of 1,990 50 or more persons...."
Motion carried unanimously.
Chalfant stated he recommends amending 16.16.350(C), "...or more persons
and covered ass ern as defined in WCC 16.16.800(A) may be permitted..." That
term is also a remnant of the old critical facilities definition.
Roy moved to amend 16.16.350(C), "...or more persons end —eever
wee as defined in WCC 16.16.800(A) may be permitted..."
Motion carried unanimously.
Fleetwood asked if people in the geological sciences make predictions about
when a lahar may happen.
McShane stated there is speculation. The time interval is long. The odds of
a lahar happening in this lifetime is small, but the consequences are high. They can
avoid putting a lot of people at risk some time in the future.
Natural Resources Committee, 7/7/2005, 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.
Fleetwood asked definition of "active."
McShane stated an active area has had any activity in the past 10,000 years,
post ice age.
Chalfant stated staff has a presentation on channel migration zones.
Paul Pittman, Senior Planner, read the presentation on the methodologies
used on and status of work done on channel migration zones. The Ecology
guidelines help communities delineate channel migration zones. The guidelines is a
compilation of the historic migration area, the erosion hazard zone, evulsion hazard
area, and the detached migration zone. He showed maps of the migration zone.
Some erosion and evulsion has taken the channel migration zone outside the
historic area. At the confluence of the North Fork and South Fork, this channel has
historically been all over the place.
Staff looked at the geology of areas and assigned different erosion values to
different geologic materials. They anticipated what a potential erosion hazard zone
might look like. He indicated the areas on a map of the North Fork. Areas that
have features such as road features were excluded from the channel migration
zone.
The Public Works Department, Planning Department, Nooksack Tribe, and
Lummi Natural Resources have worked collaboratively to come up with erosion
hazard zones and evulsion hazard zones. The historic migration zones are already
mapped. They started on the North Fork of the Nooksack River. They've gone as
far as they can with the technical information. They are still working on the
detached migration zone. They've done preliminary mapping of the middle fork and
south fork of the Nooksack River. So far, only minimal effort has gone into the
upper and lower portions of the main stem of the river.
Paula Cooper, River and Flood Division Manager, stated the Flood Control
Zone District Advisory Committee has worked through the North Fork example and
come up with preliminary boundaries. They wanted input from the community
since there isn't a representative from the North Fork community on the advisory
committee. The advisory committee wanted community input that may exist on
any potential evulsion pathways that cross infrastructure. She asked if the
councilmembers were comfortable with gathering that information from the
community.
Roy stated it's better to get that input up front. Cooper stated the advisory
committee will take in that input, and put together a formal recommendation for
boundaries.
Chalfant stated that if the Council adopted an interim channel migration
zone, it could be this, as shown on the map, or some version of this map. They
Natural Resources Committee, 7/7/2005, Page 9
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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.
must come up with the final channel migration zone after going through a public
process.
McShane stated go with the current language. The Council can choose to
adopt an interim channel migration zone, separate from this CAO process.
Roy asked if the recommendations were developed independent of the
information on the channel migration zone. Chalfant stated the current CAO
doesn't address erosion hazard areas. This section is all new. There were areas in
the existing CAO that had some overlap on this issue. This ordinance clarifies the
County's responsibilities for addressing erosion hazard areas.
Fleetwood asked the reason for including erosion hazard areas in the update.
Chalfant stated the Growth Management Act requires the County to address erosion
hazard areas.
McShane moved to amend 16.16.350(C)(2), "...professional or state or
federal agency showing..."
Motion carried unanimously.
McShane referenced 16.16.320(C). He asked whether this prohibits people
from subdividing in an alluvial fan hazard area. Chalfant stated it does, unless
there are buildable areas outside the hazard area.
McShane asked the implication of this section and how much discussion
occurred. People in Acme will not be able to subdivide any land at all. Clancy
stated the intent of this provisions, which is in the existing regulations, is to try to
avoid creating new lots of land that are unbuildable because of critical area
limitations.
McShane stated there are also designated flood hazard areas on alluvial fans.
There is no place where various hazards associated with alluvial fans are called out.
He asked if people can say they will either alter the hazard so it no longer exists or
will mitigate for it, the way this language is written. Chalfant stated that language
doesn't exist.
McShane stated it may not be a good idea to develop in these areas at all
because ongoing maintenance is required, even when there is mitigation.
(Clerk's Note: End of tape one, side 8.)
Clancy stated there are provisions to allow building in certain areas if owners
demonstrate they've mitigated the hazard. Subsection (C) just prevents the
creation of an unbuildable lot. The intent is not to apply subsection (C) to lots with
sufficient buildable areas.
Natural Resources Committee, 7/7/2005, 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 stated they can mitigate in the alluvial fan hazard zones.
Brenner asked what that mitigation would be. If the hazard area can be
mitigated, building should be allowed.
McShane stated his concern is just with alluvial fans.
Roy asked if some alluvial fans are more hazardous than others.
McShane stated all fans are different, and hazards differ based on where
people are located on the fan.
Clancy stated the ordinance designates the hazard areas that have the
potential to be significantly hazardous to the community. They don't designate the
portion of the fan that is not significantly hazardous.
McShane stated the language seems to say that land, in areas the County is
committed to protect because of existing infrastructure, can't be subdivided. Some
day, there will be significant mitigation done to protect that built environment and
those lands that could be subdivided. Chalfant stated the committee could amend
the definition of alluvial fan hazard areas to remove areas that are protected by
permanent flood protection measures.
McShane stated he is not sure how those mitigation will be maintained over
time. He asked the discussion on this issue. Chalfant stated the Technical Advisory
Committee discussed the alluvial fan hazards in general. An example that was
discussed was the dike at The Logs resort. There was thought that it's very difficult
to protect people in these instances.
McShane stated the mitigation necessary at The Logs was so expensive that
the owners couldn't do it. In other locations, permit requests sometimes slip
through the crack and a building gets permitted that shouldn't be. Mitigation
systems sometimes fail.
McShane asked staff to figure out the language about alluvial fans and create
another subsection specific to alluvial fan hazards.
Fleetwood stated consider language for an exception if mitigation is feasible.
He would consider it for all hazard areas, "unless mitigation is feasible as
determined by the technical administrator."
Roy stated she is not comfortable with the vague notion of mitigation in
hazard areas. She is inclined to look at the alluvial fan hazard areas in more detail
later. She is disinclined to determine whether or not mitigation is appropriate to
alleviate a hazard.
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Fleetwood stated it's a policy discussion of how far government goes to
protect people. The government notifies the people that they're in a critical area
and goes to great lengths to say people can't build in those areas because the
government must protect those people. At some point, people have the right to go
forward with something that may be foolish.
Roy stated that if the County starts blessing the mitigation those people do
as appropriate, it becomes partly the County's responsibility. She doesn't want the
County to approve mitigation plans unless the County knows enough to do that.
Cooper stated the County has studied different fans in different levels of
detail. It warrants further discussion. An issue is whether mitigation is
appropriate. It's difficult for the County to take that on without getting into trouble.
However, there are places where two feet of elevation could be adequate
mitigation.
Chalfant stated that in some circumstances, mitigation could be very
expensive, and maintenance may be neglected over time. The County may
eventually be asked to take over the maintenance.
Fleetwood stated review this section and come back to it.
The committee concurred.
McShane referenced 16.16.330(C). Rewrite the section so that the
regulation isn't based on dynamic and static conditions. The burden to
demonstrate that condition could be significant. Instead, say "The development will
not increase the slope stability on adjacent properties. The development shall not
increase the risk or frequency of landslides." That's a straightforward thing to do
without doing dynamic and static analysis. Don't increase the frequency or risk of a
landslide. He asked where that condition came from. Clancy stated a number of
jurisdictions used dynamic and static conditions as safety limits. This section is
similar to Pierce County code. The model code published by the State also
suggests a similar provision as a more precise and measurable way to get at the
standard, which is to not increase the frequency or risk of landslide.
McShane stated his professional opinion is to not go with that standard. A
question is why people would need to demonstrate that condition if they commit to
not increasing the hazard, if they are building within 300 feet of an active landslide
area. He moved to replace 16.16.320(C) so it would say, "The development will
not decrease slope stability on adjacent properties. The development shall not
increase the frequency or risk of landslides."
Roy asked if it is possible for people to challenge the assertion that the slope
stability is not decreased. She asked if people would use this formula to
demonstrate whether the slope stability was decreased. Clancy stated the factor
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safety limits would be one way that someone would assess whether the standard
has been met.
Roy asked if there are other ways to determine whether the slope stability
has been decreased, besides this formula.
McShane stated the bluffs at Birch Bay and Semiahmoo will fail this standard.
They are already unstable. The development should be such to not increase the
frequency of the slide. The goal is to prevent the development from making the
slope worse than it already is. The dynamic and static standards haven't worked in
the past.
Motion carried unanimously.
McShane referenced section 16.16.330(D). The wet season issue may be
too broad. He moved to amend the subsection, "...of the approved development
and s"," not be allowed in the e t seas ." If vegetation shouldn't be removed
during the wet season, it shouldn't be removed at all in that location. The issue is
covered already in subsection .330(A).
Fleetwood stated people will ask the reason the County prohibits removing
vegetation at Lake Whatcom during the wet season.
McShane stated the prohibition is to reduce phosphorus.
Roy stated they are also specifically talking about areas within 300 feet of an
active landslide area. She would like to see the standard remain, however,
Councilmember McShane's argument is logical. They're talking about 300 feet of a
landslide area, not the entire county.
Motion carried unanimously.
McShane suggested amending 16.16.330(H), "Where avoidance is not
possible, structures and improvements...."
Clancy stated all of these measures presume that avoidance is not possible.
They felt the words were not essential to the meaning of subsection (H).
McShane stated the language talks about doing things such as changing
slope contours to make the slope stable and to build the structure, instead of
avoiding the risk. Instead, the goal should be to keep people off the areas. If they
can't because of the layout of the lot, then the water should be collected.
Clancy stated the first step is to avoid the area. They are supposed to direct
development to non - hazardous portions of the parcels. A number of standards
already set up avoidance as a first measure. The Planning Commission felt that
people should take measures to minimize alterations to the slope contour and
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impervious lot coverage, whether or not they can avoid a hazardous area. The
intent was that those standards should apply in all cases.
McShane stated this whole section applies to the active landslide hazard
area. He asked what is meant as "active." Clancy stated it is defined in section
16.16.310(C)(1)(b)(i).
McShane asked if they should define "in the near future." Define it as 100
years. That is the life of a structure. Slides could sit and be stable for some time,
but eventually go.
Roy asked if Councilmember McShane is saying that if they don't think it
won't happen for 100 years, it may be okay because the average house lasts only
100 years. She would rather it not be done in the first place.
Clancy stated there was some debate by the Technical Advisory Committee.
There were different views on what the time interval should be. This determination
depends on site - specific geological evaluation. It would be that professional's
determination to say when the site is likely to fail. Then, the technical
administrator would determine the standards to apply.
McShane stated that's where the Council should provide guidance. He
moved to amend section 16.16.310(C)(1)(b)(i), "...likely to fail On the near- future
within the next 100 years."
Fleetwood stated don't have language that is vague. He supports the
suggestion.
Motion carried unanimously.
McShane referenced 16.16.340. Soil liquefaction was a concern. He asked if
the intent was that the County would require some building development that
would follow the international building code (IBC) or leave it up to the engineer and
architects if the development occurs in an area seismic hazard area where
liquefaction would occur. Chalfant stated the entire county is a seismic hazard
zone. Use IBC provisions that are consistent with existing standards. They won't
address soil liquefaction any more thoroughly. Some level of geotechnical analysis
based on soil stability is required for certain structures.
Brenner stated it seems the County should allow for adequate mitigation
according to experts if all areas of the county are seismic hazard areas and the
County is going to allow people to build. It should be included in the alluvial fan
section, also.
Roy stated there are many standards for what people need to do to build in
earthquake -prone areas. The County is ascribing to those standards and expects
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people to build to those standards. She asked if it is left as an engineering best
practice. Chalfant stated it is, subject to review by the County geologist.
McShane referenced 16.16.345(C). He reviewed the Jones Creek and
Canyon Creek alluvial fan studies. He moved to amend, "...qualified professional
that identifies the risks associated with a 500 -year return period debris flow or the
maximum credible event that could impact the alluvial fan." That's what they
asked for at Jones Creek and possible at Canyon Creek.
Fleetwood asked the reason for a 500 -year return period, and not something
else.
McShane stated 500 years is what was recommended by the County's
consultant on the Jones Creek alluvial fan. That has been an approach they've
taken in British Columbia for alluvial fan hazards there, which are similar.
Fleetwood asked the guidelines a professional might follow, and if there is a
concern that they might not get close to that standard.
McShane stated it gives the professional standards to shoot for. The
language, the way it is currently written, was troublesome for the Hearing Examiner
in The Logs case. It referenced the largest known event. However, they frequently
don't know how large these events could be until they are studied. The largest
known event may not be the appropriate event to design for. The consultant
recommended the 500 -year event to provide a good factor of safety. Another
option is to go with the maximum credible event, which is to evaluate and define
how bad the alluvial fan is, and whether a house can be built in a certain location.
Roy stated it would be helpful to provide guidelines.
Fleetwood stated the present language does provide some guidelines.
Motion carried unanimously.
(Clerk's Note: End of tape two, side A.)
Clancy referenced Article 4 regarding frequently flooded areas. There are not
many changes. Development in flood plans and frequently flooded area is
regulated through Whatcom County Code (WCC) Title 17. The existing CAO defers
any additional provisions to Title 17. Staff have made some suggested changes to
Title 16. Purpose statements were added to achieve avoiding impacts to fish and
wildlife habitat and to protect the beneficial functions that floodplains provide.
Existing regulation relies on Federal Emergency Management Agency (FEMA)
flood maps. The change identifies the areas through the ongoing River and Flood
Division identification process that includes areas outside the FEMA flood plain.
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Another change is to require developments to include mitigation for flood
issues and ecological impacts of floodplain development. The report standards are
modified to require the technical reports to address ecological issues as well as
flood safety issues and to require the River and Flood Division to coordinate with
the County permitting staff during these development reviews, for consistency with
Title 17.
Fleetwood asked if the County is able to disclaim liability by including a
sentence in 16.16.410(B), "This chapter shall not create liability on the part of
Whatcom County, any officer or employee thereof...."
Brenner stated that if people see that language, they may be less apt to do
certain things.
Fleetwood stated the sentence shouldn't be in the ordinance if it has no force
of law.
Brenner stated that if something is found to be invalid in an ordinance, it
doesn't nullify the rest of the ordinance.
McShane stated the committee approves of Article Four.
Roy moved to recommend approval of Article Four to the full Council.
Motion carried unanimously.
Clancy referenced Article 5 regarding critical aquifer recharge areas. An
additional purpose statement was added to prevent impacts that could deplete
aquifer storage or recharge. Another statement was added to establish consistent
review practices and procedures for developments in these areas.
The existing CAO defines highly susceptible areas based on soil type,
occurrence of the Sumas outwash unit, the Nooksack flood plain, areas within Y2
mile of wells, and varies with permeable soils. The classification system designates
low, moderate, and highly susceptible aquifer recharge areas. They determine the
occurrence and extent of those areas using criteria and methodology from an
Ecology guidance document. Also included in the designation are wellhead
protection areas, encompassing the one -, five -, and ten -year time of travel zones
adjacent to wellheads.
Fleetwood referenced section .520. There is not a definition of "adverse
effect." Given the growth and demands on the existing water supply, incremental
negative effects are happening throughout the county on a regular basis. Nothing
in this language would stop that incremental development that is occurring and the
negative effect. However, it constitutes an adverse effect. These rules aren't
meant to stop that sort of development. Define an adverse effect. Clancy stated
the term refers to recharging of the aquifer. This statement prohibits a
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development that clearly lessens the rate or amount of aquifer recharge that
occurs. That is an issue with all the regulation. There are multiple goals of GMA,
some to do with growth and some to do with protecting critical areas. At some
point, those two things conflict. This is meant for individual developments that will
have a clear affect on the groundwater recharge.
Fleetwood stated one could demonstrate that the existence of any new
structure that has an affect on aquifer recharge could stop the project, without a
definition of "adverse affect." People may come forward with that argument when
seeking permitting.
Brenner stated they could add the word "significant." Clancy stated adverse
affects always have to be at the threshold of significant. That threshold may be
appropriate in this section.
Fleetwood asked if the general concept that a new building that draws water
will have some incremental effect on an aquifer recharge area is right or wrong. If
that's the case, the questions is whether that is something that would be regarded
as an adverse effect. Clancy stated it would be difficult to show that any one house
or building would adversely affect the recharge. It is hard to show a cause and
effect for an individual building. However, there may be some sort of cumulative
affect with each development, over time.
Roy moved to amend 16.16.520(A), "...and will not significantly adversely
effect affect the recharging of the aquifer." However, the word "significantly" is not
that precise.
Motion carried 2 -1 with McShane opposed.
Bob Wiesen, 3314 Douglas Road, stated he's watched this go on for years.
They are ignoring all the goals of the GMA. They are not weighing the other factors
of the GMA. There is no map showing what part of the county is a volcanic hazard
zone. Consider the effect of an unbuildable land supply and what it does to the
availability of land. Consider the economic impact of the rules. Don't treat
agricultural lands differently from other rural lands. It looks like they want to
protect the lifestyle of the urban people, not the rural people. Rural people are so
because they don't want people around all the time. They may have hobbies that
are a bit noisy. The use of his land is nonconforming now, but it didn't used to be.
Keep it simple, fair, reasonable, and do unto others.
Fleetwood asked if Mr. Wiesen is including everyone when he says they are
ignoring the GMA. Wiesen stated he is including the entire process. They don't
have a good land supply in this county, partially because of the City of Bellingham's
attitude. They are supposed to put stuff near the town. Not everyone wants to live
in an apartment or condo. They are not supposed to force everyone into an
apartment or condo. He submitted information (on file).
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Fleetwood moved to recess until after lunch.
(Clerk's Note: The motion was not voted on. The committee took a break
from 11:57 a.m. to 12:40 p. m. )
Clancy stated new standards were added to the critical aquifer recharge
areas. The existing ordinance strictly handles development in an aquifer recharge
area only via the State Environmental Protection Act (SEPA) review process. All the
standards in .520 and .525 are new. She read the new standards. Essentially,
there is no change in how critical aquifer recharge areas are handled, except if
there is a specific use that can affect groundwater quality through contamination.
McShane moved to recommend approval of Article 5 as it is to the full
Council.
Motion carried 2 -0 with Fleetwood absent.
Clancy referenced Article 6 regarding wetlands. There are a number of
changes. Language was added to the purpose statement to regulate developments
to avoid adverse impacts on wetlands. They added a purpose statement regarding
consistent review practices.
The existing code defines wetlands as meeting the current State and federal
requirements for soils, vegetation, and hydrology. It specifically exempts isolated
wetlands that are one -third of an acre in size or less. There is currently no
categorization system for wetlands. The proposed changes include having a four
tiered system for categorizing wetlands using Ecology's new rating system for
wetlands in Western Washington. The regulations would change the size threshold
for exempt wetlands from one -third of an acre to 2,500 square feet. In addition,
those wetlands also have to meet other criteria before being considered exempt
from the regulations. The delineation procedures must match the State manual,
which GMA requires.
In the regulation section, the existing code allows no activities without
mitigation. Cluster developments are required to avoid impacts to wetlands.
Currently, there is a 100 -foot buffer required for all wetlands. There is no
differentiation on size and quality of wetland. There are provisions for buffer
averaging and buffer reduction. There is no minimum threshold for those buffer
widths. Now, the technical administrator may require buffers larger than 100 feet.
There is currently an allowance to discharge stormwater to wetlands if it won't
adversely affect the wetland, not to exceed a six -to -one replacement. She read the
changes to the current standards. Specific activities allowed in wetlands are
specified. The buffer provisions have changed. The buffer is based on the wetland
category, determined from the rating system. The buffer size ranges from 25 to
300 feet. The intensity of the adjacent land use is considered when determining
the buffer size. Buffer averaging and reduction are still allowed. There are
minimum thresholds, below which the buffer can't be averaged or reduced. The
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mitigation standards are more clearly defined. Requirements for mitigation plans
and the minimum report standards for critical area assessment reports are clearer.
McShane referenced subsection 16.16.610(E). Go back to the one -tenth of
an acre threshold in combination with a set of criteria to be added. One criterion is
that the wetland not be located in a special water management area or stormwater
management area. He asked staff if that makes sense. Clancy stated that would
be an appropriate change.
McShane moved to amend 16.16.610(E):
• AN ... wetlands less than one -tenth (.1) acre or 4,356
square feet shall be exempt..." and
• "(7) The wetland is not located in a water resource protection overlay
district, water resource special management area, or stormwater
special district."
Roy stated either threshold seems arbitrary. She asked if they know how
many level IV areas there are. Clancy stated they don't. They rely on the map
from the national wetland inventory. That inventory tends to underestimate the
small wetlands because it relies on aerial photography, which doesn't show the
small wetlands. They propose to use this new categorization system. There has
been no effort yet in the County to determine the areas.
Brenner stated Councilmember Nelson has said they should treat every part
of the county the same, especially with stormwater management. She agrees. The
whole county will end up in the special stormwater district area by the time the
Council is done with stormwater.
McShane stated he disagrees to a degree. Protecting insignificant wetlands
in the areas around the two lakes is more important than in other watersheds
because phosphorus is an issue in those lakes. Phosphorus is not as much of an
issue in a river or stream. In Drayton Harbor, there are marine environment
issues.
Roy stated she agrees with Councilmember Nelson's approach of being even-
handed across the area, especially when they are talking about stormwater. They
all live in some watershed in the county. Some areas drain into a system that can
be more affected than other areas. At this point, it's wise to point out those areas.
Motion carried 2 -0 with Fleetwood absent.
Brenner referenced section 16.16.610(A). Amend the language, "Wetlands
are those natural or intentionally created areas...." People may do things to change
the flow and create ditches. Be specific about what they're talking about.
(Clerk's Note: End of tape two, side 8.)
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Chalfant stated areas that were unintentionally created after July 1, 1990 are
already excluded.
Brenner referenced section 16.16.610(E). She asked if that section also
covers unintentionally created wetlands. Clancy stated they are regulating the
wetlands that meet the State and federal definitions for wetlands.
Chalfant stated the exclusion is specifically for wetlands created due to
construction of roads, highways, or streets. It doesn't exclude something
unintentionally created another way.
Clancy stated there are cases where activity nearby changes conditions and
wetlands appear where they didn't exist before. Those are difficult cases to
address. It's difficult to determine what was or wasn't intentional and when to
draw the line on wetlands that were created yesterday versus wetlands that were
created years ago. The State and federal regulations don't necessarily exempt
wetlands that were unintentionally created as a result of activities, except in the
case of road construction.
Chalfant stated the County doesn't have the latitude to change the definition
of a wetland, which comes from the GMA.
Brenner stated there should be a more flexible allowance if people
unintentionally cause wetlands to appear on a neighboring properties.
Roy stated the function is what matters. If a wetland is created, the function
may be necessary regardless of whether or not creating the wetland was
intentional.
Brenner stated the definition of function is too broad.
Roy asked if the County can't change the definition from the State and
federal government, if there is no distinction between intentional and unintentional
wetlands, and the timeframe. Clancy stated the timeframe is related to wetlands
that were unintentionally created as a result of road construction after July 1, 1990.
They don't have the tools to figure out what is a natural wetland, whether it was
created intentionally or unintentionally. It's very difficult to administer something
like that.
Brenner stated make it the property owner's responsibility to prove that the
wetland wasn't there. If the property owner can make that case, there should be
an allowance for it. Chalfant stated that other provisions in law address this
situation. There is a way to pursue recourse civilly.
McShane stated if people unintentionally cause a manmade wetland on
neighboring property, the neighbors should address it before it becomes a wetland.
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If a neighbor floods someone, action should be taken civilly to make sure the water
doesn't remain in that location.
Brenner stated the landowner might not notice it right away.
McShane stated an amendment doesn't change anything for the property
owner. The property owner still has to address the problem by documenting the
unintentional wetland. A change in the language just passes the problem on to the
CAO.
Brenner referenced 16.16.620(H)(1) and asked what a forested buffer
community is. Clancy stated people can put a stormwater facility in a wetland
buffer, but not if it means clearing the trees to site the facility. If the buffer is
currently pasture grasses, however, the facility can be located there.
Roy moved to amend 16.16.620(H)(1), "...a forested buffer "
Motion carried 2 -0 with Fleetwood absent.
McShane stated staff did a good job on this article. It reflects a lot of hard
work and expertise from staff and the consultant.
Roy asked if this is going to make the CAO clearer and easier to administer
for the public and the County. Chalfant stated it would.
Frances Jones, 515 Whitecap Road, referenced the mitigation ratios in
16.16.680(C). As an example, a category II wetland that requires mitigation for .8
acres, with rehabilitation, would require 5.5 acres. With a 150 foot buffer, 14.4
acres would be required. Therefore, to mitigate .8 acres would require 14.4 acres.
The ratios are higher to ensure success. The regulation also requires monitoring in
excess of ten years, plus a performance bond. To require that much mitigation and
that the project be bonded is overkill. It will have a direct impact on land supply.
Require just the bond.
Roy stated the technical administrator has latitude on buffers. She asked if
there is latitude to address the scenario given. She asked if this hypothetical case
has options. Clancy stated there are options. These ratios are based on the
guidelines that Ecology put forward. In most cases, if filling a wetland, people are
required to get a permit from the State and federal governments, which will require
similar ratios. There are some provisions in subsection .680(E) to replace lost
wetlands. The rest of the ratio can be achieved in a variety ways, such as
enhancement.
Brenner stated some are a bit excessive. Guidelines are not regulations.
The County doesn't need to go with guidelines. The State should have to explain its
excessive guidelines.
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Roy stated she's not sure these guidelines are excessive. They're talking
about total loss of wetlands. Money isn't the issue. The issue is the function of the
wetlands. These ratios may be based on what really needs to happen to replace
the wetlands. In that case, they aren't excessive.
Clancy stated the guidelines came from studies of best available science.
There has been a low success rate for mitigation projects, especially wetland
enhancement projects. The ratios are intended to account for some level of failure
and the time it takes to replace the function of the lost wetlands.
Bob Tull, 709 DuPont, Bellingham, stated they have worked on the issue of
wetland mitigation for 17 or 18 years. As Ms. Clancy said, the ratios account for
the potential failures. When they do that in addition to a performance bond, it's too
extraordinary. In the urban parts of the community, they may want to do it
differently. Consider that the State Department of Community, Trade, and
Economic Development (CTED) points out that they may want to do things
differently in urban areas versus rural areas. Where buildable land supply around
cities is or will become an issue, they may want to rely more on one method than
the other. Another area of concern is Cherry Point, where they may have lots of
room in some situations. The ratios plus the performance guarantees is very
consumptive.
McShane stated the ratios take into account time and spatial considerations,
as well. When a wetland is created, it won't have the whole function at first.
Clancy stated that's true. The attempt to compensate for the temporal loss is also
included in the ratio. The ratios in this proposed section are a bit lower than what
Ecology recommends, especially in the enhancement category.
Brenner stated they are not ending up with the same buffer widths around
critical areas wetlands as the cities are. In the urban growth areas (UGA's), that
creates a big problem. If the County requires larger buffers than the cities require,
things will get built according to those larger buffers, which may make annexation
and density difficult. The County is not coordinating with the cities. She asked
when that would happen. Chalfant stated all the cities participated in the update of
this ordinance. The City of Bellingham CAO is coming out and is very similar to the
County's CAO. The small cities have not expressed any concern with buffer widths
in the UGA's.
Brenner stated she heard differently. She doesn't understand how one
person can represent all the small cities. Not all the small cities are participating.
They should agree on UGA's.
Roy stated the Council needs to make its decisions based on staff
recommendations and best management practices. More communication is needed,
but the County can't force the cities to listen.
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McShane stated the cities will be different because they have so much built
environment when these didn't apply. In the future, the ratios will let the land
speak and growth should be directed accordingly. Take these into account when
looking at the buildable land supply, instead of having UGA's extending into areas
that are 50 percent swampland. Adjust the UGA's to avoid the wetlands. As cities
expand into a UGA, they can recognize that the wetland areas need to be
protected. There may be problems with stand -along UGA's that aren't connected to
a city. Don't resolve every problem in the county by making blanket changes.
Roy asked if they could do either a performance bond or include the failure
rate into the ratio without doing both. Clancy stated that in many cases, there may
not be a complete failure, but a need for adaptive management, adjustments, or
additional planting. The bond would cover that expense. One of the reasons that
mitigation isn't as successful as they would like is because of the lack of follow -
through, monitoring, and adaptive management. There is a need for a two -
pronged regulation. That was the rationale for having both requirements. The
bonding requirements are currently in place.
Roy stated they are trying to send the message that they need to look at
other locations instead of filling in wetlands. That may be an unpopular view. Part
of what they're trying to do is say this is so critical and important to the overall
health of the system. They need to discourage, not encourage, destruction of the
critical areas. If they are going to be destroyed, there is a price to pay.
Clancy stated there is an additional point of flexibility in the buffer
requirement. In the example given by Ms. )ones, there is a provision for the
technical administrator to approve a smaller buffer when there are site constraints
or limitations, if the mitigation otherwise has adequate protection.
A category II wetland is a highly functional and valuable system. The criteria
a wetland has to meet to be qualify as a category II include significant habitat
attributes, water storage functions, and water quality functions, such as mature
forested wetlands, estuarine wetlands, and other wetlands that are difficult to
replace. If they do replace them, it takes a long time for the functions to become
established. That is the rationale for the higher ratio of category II wetlands. It is
very hard to replicate those systems.
mean.
Roy moved to recommend approval of article six to the full Council.
McShane stated they must let the public know what these wetland categories
Motion carried unanimously.
Clancy referenced article seven regarding habitat conservation areas (HCA's).
She read the changes.
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(Clerk's Note: End of tape three, side A.)
Clancy continued to read the additions to article seven. The regulation
section is very similar to the wetland section.
Fleetwood stated reference was made in an email from Wendy Steffensen
proposing an additional article in .710. He asked if the proposed language is most
appropriate for subsection .710. Clancy stated the language is not appropriate in
any section in the ordinance. It commits the County to doing a study of habitat
connectivity. The purpose of this ordinance is not to direct the County's planning
activities, but to regulate development. The suggestion is not appropriate for the
code. In fact, the County is doing an evaluation right now as part of the shoreline
master program update process. The County is looking at landscape processes,
including habitat connectivity. The County is involved in doing Ms. Steffensen's
suggestion, but don't put that wording in the code. This code is to direct others'
development activities, not the County's activities.
Fleetwood stated an overall purpose is to maintain connectivity. He asked if
that overall statement is sufficient for the ordinance, but they should address
elsewhere how and where connectivity is achieved. Clancy stated the County has
already addressed connectivity with these regulations. The Chuckanut corridor
designation as a locally important habitat area was done specifically in response to
the information they obtained from the Department of Fish and Wildlife (WDFW)
information on eco- regional assessments, which looks at habitat connectivity. One
purpose of that designation is to allow maintenance of habitat that does provide
connectivity.
There are stringent riparian buffer requirements. The riparian buffer is
measured from the outer edge of the channel migration zone. Those are important
areas for wildlife movement and migration. By virtue of those actions, connectivity
is achieved. There is case -by -case review of buffer requirements for individual
species and habitats. The code specifically addresses wildlife connectivity in a
number of places. The shoreline effort will provide additional results.
Wendy Steffensen, North Sound Bay Keeper with RESources, stated the
Chuckanut wildlife corridor provides connectivity for that area. The riparian channel
migration zone is good, but does not assure connectivity of all the riparian zones.
They are protecting chunks of land, but those chunks are not connected. Look at
connectivity on a case -by -case basis. This may not be the right place to review
connectivity. If it is not, then indicate when it should be considered.
Clancy stated piece -by -piece regulation is difficult. The landscape analysis as
part of the shoreline update does what Ms. Steffensen suggests.
Roy stated that both the critical areas ordinance and shoreline program are
directed to the same audience. She asked why the suggestion is okay for the
shoreline program and not for the CAO. Clancy stated the difference is that they're
Natural Resources Committee, 7/7/2005, Page 24
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required in the shoreline update to evaluate ecosystem processes and how the
ecosystems function outside the jurisdiction of the shoreline permit program.
Through the shoreline update, the County must prepare a countywide restoration
program to improve functions and values of habitats beyond a permit and
mitigation program. There is an extra piece to the shoreline update that isn't in the
CAO.
Fleetwood asked if the scope is the same. In the shoreline program, they
review things along the shoreline, not the entire county. However, connectivity is
done throughout the whole county. Chalfant stated the regulatory provisions apply
to the ordinary high water mark. However, voluntary restoration for the entire
county is under that same statute. The restoration plan is for the entire county.
Fleetwood asked if they would achieve the goal of connectivity, as expressed
in the CAO, in the parallel shoreline process. Chalfant stated the CAO is one piece
of the connectivity puzzle. The entire riparian corridor and channel migration zone
are associated with the Nooksack River, which is a vital migration corridor and
probably the most critical link in connectivity. They've also designated as a locally
important habitat area the only habitat that came up on the WDFW eco- regional
assessments. They are already protecting areas with scientific evidence as
important areas to protect for habitat connectivity standpoint.
Clancy stated that adding connectivity to the purpose statement allows the
technical administrator to take connectivity into account when reviewing a given
development proposal. They want to apply connectivity at the development review
stage.
Fleetwood asked if it would be redundant to undertake a concurrent planning
effort for connectivity since it is being studied in the shoreline process. Chalfant
stated it's inappropriate to put such a study in the ordinance, which is for regulating
development, not for directing the County agency to do a study.
Clancy stated the Council could pass a resolution to undertake that study
instead of putting it in this ordinance.
McShane stated the County has identified Chuckanut wildlife area for a
corridor. He asked how that area was designated. Chalfant stated the WDFW did
an eco- regional assessment that looked at the Puget trough and important areas
for wildlife migration on an eco - regional basis. It was the only area identified in
Whatcom County, west of the national forest area.
McShane stated there may need to be more assessment of local species for
local corridors. They could amend the map, and would not have to amend the
code. Chalfant stated that is correct. The code has provisions for adopting those
areas as they are identified.
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McShane stated there is a lot of local information on how local species, such
as herons, move around.
Clancy stated those considerations would be factored into the buffers
required for that species when a development is proposed. The buffers would be
based on WDFW management criteria or other best available science information.
If they know of a zone frequented by a species, it could be the basis for
determining a buffer size.
Fleetwood stated the question is whether the Council wants to adopt a policy
to begin a process to identify corridors and how to protect the corridors. If the
answer is yes, they need to identify when to do that. Have a discussion on
connectivity and decide where and when to express that policy.
Roy stated the committee could ask staff to prepare an ordinance on
connectivity. The process of a connectivity review will be very large. All of
Whatcom County will be important habitat area for one species or another.
Fleetwood stated the committee can discuss connectivity at its next meeting.
McShane moved to amend:
• 16.16.710(D), "In addition to the species, ai=�d habitat, and wildlife
corridors identified... County may designate additional species, ee
habitats, or wildlife corridors of local importance..." and
• 16.16.710(D)(1), "...nominate an area, era - species, or corridor to the
category..." and
• 16.16.710(D)(1)(a), "iv. Maintenance of connectivity between habitat
areas;"
• 16.16.710(D)(1)(a)(iii), "...other special value, sueh as publie appea4j-,
or"
Tull stated the habitat issue is a sweeping change. In the past, landowners
didn't have to find a new home for the critters they displaced. One of the dangers
of this ordinance is that they are now saying those who didn't change their property
are supposed to accommodate the critters that have been displaced. Subsection
.710(D)(1)(c)(c) says to identify the effects on property ownership and use.
However, it's not clear what is supposed to happen. Be careful at what point the
regulation of land use starts to become government taking away property for
wildlife. Be careful about preserving these areas in a way that is very fair.
Subsection (c) doesn't say whether or not they are supposed to weigh equity or
what to do if there is a devastating effect on someone. When they superimpose a
corridor on private land, consider what it will do to the landowners. Contemplate
the effect of changing every shoreline setback in Whatcom County from where it is
today to 150 feet. It will have to be a tool used with great sensitivity.
McShane stated that to bring forward a new species or corridor, there are a
number of things that must be demonstrated. One has to show that this is
Natural Resources Committee, 7/7/2005, Page 26
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important to designate an area, create a corridor, or identify a species. The
regulation only requires identifying the effect. In subsection (D)(1)(c), create
subsections on how those issues can be dealt with. Think about what is already on
the ground when doing this. In some cases, it might not work.
Tull stated staff has been careful with the corridor concept, but when it
becomes a public nomination process, it carries regulatory consequences. Be much
more thorough. The real problem is identifying what would happen in a particular
corridor, through examples. Reserve this issue for a future date. This ordinance
can be amended at a later date. The County Charter has a provision to protect
property rights. Have more answers before unleashing corridor opportunities. This
is a tough issue.
McShane stated they may need more guidance in subsection (D)(1)(c).
(Clerk's Note: End of tape three, side 8.)
Chalfant suggested amending .710(D)(3), "...intent of this chapter, the
Whatcom County Comprehensive Plan, and the Growth Management Act, the
County Council will...." That would put forward the intent to consider all the various
goals and objectives.
McShane accepted the suggestion as a friendly amendment and restated
his motion:
• 16.16.710(D), "In addition to the species, arm habitat, and wildlife
corridors identified... County may designate additional species, ante
habitats, or wildlife corridors of local importance ..." and
• 16.16.710(D)(1), "...nominate an area, eF a species, or corridor to the
category..." and
• 16.16.710(D)(1)(a), "iv. Maintenance of connectivity between habitat
areas;"
• 16.16.710(D)(1)(a)(iii), "...other special value, sueh as publie appee4-;,
or"
• (D)(3), "...intent of this chapter and the various goals and objectives of
the Whatcom County Comprehensive Plan and the Growth
Management Act, the County Council will ... locally important habitats,
of species, or corridors and will be subject to...."
Roy stated that given the huge implications, she won't support the changes
just now.
Clancy stated a number of areas in the ordinance point out the implications.
The first is in section 16.16.730. Alterations will be evaluated on a case -by -case
basis. The technical administrator can require assessment of the effects of
alteration and may require mitigation. Also, section 16.16.740, the buffer table
regarding locally important habitat areas identifies the buffers.
Natural Resources Committee, 7/7/2005, Page 27
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Ellen Gray, Futurewise, stated the committee should stay with this issue.
The CAO is the mechanism by which they protect wildlife. She appreciates the
changes on nominating change for the locally important species and areas, but it
defers planning to organizations that want to nominate them. However, the
organization may not have the countywide perspective. The County must
understand connectivity. Designating connectivity can be done with an overlay. It
doesn't have to prohibit development, just add an extra step to enable the animal
to move through a development. It might be as simple as providing undisturbed
cover to enable creatures to move through the plat. That should be done up front.
It would be helpful to ask staff to prepare a proposal in the CAO that would refer to
the planning process that is going on and should be going on with the CAO. The
CAO really is the place to do it.
Roy stated she is concerned they are not looking at the big picture. She is
also concerned the CAO isn't the right place to direct staff to look at it.
Fleetwood stated he would support the motion for now, but wants to
continue consideration. He would like to know the appropriate place to address
connectivity, if not in the CAO.
Roy asked if the County has a wildlife biologist on staff. Chalfant stated the
County has a forester with a wildlife background.
Roy stated looking at the areas related to all these species is a huge task.
She's not sure it is something the committee should do without getting opinions
from people who have expertise.
McShane stated the County should have a Natural Heritage Division
somewhere within the County structure.
Motion carried 2 -1 with Roy opposed.
Roy stated the committee would like to further discuss the corridor and
species of local significance. In addition, the committee would like to further
discuss subdivisions on alluvial fans.
Chalfant referenced subsections 16.16.710(C)(10)(b)(i) and (iv) to
incorporate the Whatcom County Critical Areas: New Locally Important Habitat
Designations map into and reference appendix E.
Fleetwood moved to amend subsections 16.16.710(C)(10)(b)(i) and (iv),
(i) ... but not otherwise exempt from this chapter. See Appendix E." and
"(iv) ... continues to the shores of Puget Sound. See Appendix E."
Motion carried unanimously.
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Chalfant submitted a memo to the Natural Resources Committee dated July
7, 2005 on recommended amendments to the April 27, 2005 draft Whatcom County
Critical Areas Ordinance (on file). He referenced the first recommendation in the
memo.
McShane moved to amend 16.16.225(B), "6. Alteration is associated with
an alternative mitigation plan approved pursuant to 16.16.260.E." This is in
response to concerns raised by Mr. Tull and Mr. Spencer. Clarify that the County
allows for alternative mitigation approaches. It might involve alterations to critical
areas that may not be allowed otherwise. They want to allow creative solutions to
those who have the fiscal and organizational capacity to carry out such a plan
Fleetwood asked the type of commercial activity that could be allowed.
Chalfant stated it would allow a larger landowner with a variety of different land
types that can be successfully enhanced, organized, and implemented.
Roy stated she would like to hold this memo until next week to give people a
chance to look at it.
McShane withdrew his motion.
Chalfant read through each of the items in the memo.
Fleetwood stated they should allow local agencies to provide travel time
analyses, as shown in sections 16.16.350(C)(1) and (2). Chalfant agreed. He
continued to read each of the items in the memo.
He will clean up the memo, make extra changes, and get a final copy to the
Council.
(Clerk's Note: End of tape four, side A.)
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 3:24 p.m.
Jill Nixon, Minutes Transcription
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ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Sharon Roy, Committee Chair
Natural Resources Committee, 7/7/2005, Page 30