HomeMy WebLinkAboutWater Resources April 19 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 Water Resources Work Session
April 19, 2005
Council Chair Laurie Caskey- Schreiber called the meeting to order at 12:30
p.m. in the Whatcom County Civic Center Annex, Second Floor Meeting Room, 322
N. Commercial, Bellingham, Washington.
Present: Absent:
Barbara Brenner None
Dan McShane
Sam Crawford
Seth Fleetwood
Sharon Roy
L. Ward Nelson
WATER RESOURCES WORK SESSION (AB2005 -025)
1. RIVER AND FLOOD
Flood Control Maintenance Program
Paula Cooper, Water Resources Division Manager, stated the packet includes
the prioritized list of projects, including carryover and new projects. Also in the
packet is the prioritization matrix that the committee used. The committee wants
to keep public infrastructure high on the priority list, regardless of what they
protect. The matrix needs to be flexible when they encounter new situations.
High on the priority list is the Everson overflow project. She indicated the
location on a map. The location is at the end of Massey Road. The photo shows
damage during the 2003 flood event. The County was going to start the
emergency repair work the day the flood hit. Staff put in rock temporarily to keep
the hole from growing larger. This summer, they will treat the site similar to the
Riverberry site. The project is needed to keep the Everson overflow from becoming
larger and more frequent.
The second project is the River Road levee clay core. There are residents
and agricultural uses nearby. In both the 2003 and 2004 flood events, piping
flowed through the levee and brought material through with it. Left unattended to,
that could cause a complete failure that would impact the structures to the north.
The area is in Diking District Four, which proposed to take lead on permitting and
construction and requests financial assistance from the County. The district will
take the levee apart and put in a clay core that will be impervious to the flow.
Water Resources Work Session, 4/19/2005, 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.
Another project is the Hannegan Road levee repair. The Army Corps of
Engineers project takes a lead and pays 80 percent of the cost. There are 1,815
acres that would be impacted if the levee were breached. The Corps doesn't move
forward unless the benefits outweigh the costs. There was a hole through the levee
in 2004. She suspects that the failure is from overtopping. Water poured over the
levee. They need to also fix a toe along one area.
Fleetwood asked how the Corps measures cost - benefit analysis. Cooper
stated its purely economical. The Corps looks at the cost of the project compared
to the productivity of the land and any infrastructure that would be protected.
They annualize the damages. All the annual value coming off the land would be
factored in. If the land isn't farmable because of the flood, that's the damage.
The Vanderpol -Hawley levee damage is the next project. In 2004, more
water poured onto the Hawley levee and breached the Vanderpol levee. The river
started to cut a new channel through the farmland. They lost lots of acreage. By
not doing the upstream fix on the property just outside the district, it made the
whole district levee system worthless during the next flood event. Therefore, the
Corps will do both fixes as this year's project. In the future, any problems will
include the Hawley property in the district.
Fleetwood asked what triggers the Corps' involvement. Cooper stated the
Corps becomes involved when specific criteria are met regarding backslope, top
width, and vegetation. The top and backslope are supposed to be devoid of any
woody vegetation.
Caskey- Schreiber asked if there is a local share to the Corps program.
Cooper stated the County pays about 16 percent.
Caskey- Schreiber asked why the Corps doesn't want the backslope
vegetated. Cooper stated vegetation compromises the integrity of the levee and
makes inspection and flood fighting difficult. Vegetation is allowed on the front side
of the levee.
Another project is the Blysma levee repair. Jail crews helped farmers
sandbag during flood events. There was significant overtopping. Structures were
nearby. The backslope sustained some damage. The Sub -Zone put erosion control
fabric over it. The Corps will treat a whole section of the levee.
Brenner asked if the Corps is involved in all levee projects. Cooper stated it
is not.
Fleetwood asked why the Corps is involved. Cooper stated the County is
trying to get more and more sections of the levee into the program. If the levee
section meets the requirements, the Corps will put the section into the program.
Water Resources Work Session, 4/19/2005, 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.
Another project is the Twin - View /Williams levee repairs. She indicated the
location on a map. The area impacted is agriculture uses that are upstream of the
bridge and residential uses that are downstream of the bridge. The levee is almost
gone at Twin -View. In this high energy environment, the levee could blow out in
one event and have a whole new river channel. The bad thing is there is a pipeline
nearby.
McShane asked if the river was historically nearer to the road. Cooper stated
the levees are agricultural levees. They aren't meant to keep out a 100 -year flood.
Another project is the Lower Hampton levee backsloping project. She
indicated the location on a map. A section of the levee has a steep backslope and
is very high. It will not take long to damage the backslope if the river overtops the
levee, which could make houses float off the foundations. The Lynden /Everson
Sub -Zone Advisory District will work to find material available at a cheap price. If it
can get some cost effective material, it will flatten the backslope so it would not be
so susceptible to blow out.
Caskey- Schreiber asked if the overtopping could affect the senior housing
unit. Cooper stated it could.
Caskey- Schreiber stated it's strange that the County allows construction in
that area. She's seen flooding happen there before. Cooper stated they can't stop
development everywhere. This work is needed to keep this section in the Corps
program and eligible for repair.
Another project is the Sande - Williams levee damage near Deming. She
indicated the location on the map. The river used to be off the levee, but the river
moved over. This part of the river is steep. If the river blows through the levee, a
new channel will form close to Nugent's Corner.
Flood Hazard Reduction Program
Cooper stated that if all projects come to fruition, they will be a bit over
budget. Often, a project doesn't go through before building season.
One project is the Swift Creek flood hazard reduction. It is a project that is
likely to never go away. It is a costly problem for Whatcom County. Consultants
will present information to the Council. A big landslide on Sumas Mountain is a
massive landslide on a regional scale. There was a huge flow event on Swift Creek
in January. Sediment caused the channel to wander and took out most of the
protection. It is critical to get this project done this year. The County has the
permits now.
Nelson asked if they are still removing and stockpiling material. Cooper
stated they are. They are working to develop a policy to allow the material to be
hauled away.
Water Resources Work Session, 4/19/2005, 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.
Caskey- Schreiber asked who owns the property. Cooper stated it may be for
sale.
Another project is the Saar Creek sediment trap modifications. The State
Department of Fish and Wildlife (Fisheries) requires a habitat bypass channel. A lot
of the material is going into the habitat channel instead of the trap, but doesn't go
downstream. There are some minor adjustments that might make it work better.
Another project is the Johnson Creek flood hazard reduction plan. She
indicated the location on a map. Work has been done in the last two years in an
area downstream from Sumas. The project is in the third and final phase. They
have re- vegetated the banks to stop the reed canary grass. She showed photos of
different methods of bank work that they'll use.
Nelson asked if there is an effect on habitat restoration. Cooper stated they
will when vegetation grows over and cools the creek.
Another project is the Jones Creek acquisition and demolition. She indicated
the location on the map. There is a high impact zone that would destroy buildings.
The County will purchase one residential structure. The landslide jams up the
creek. The whole system is loaded with sediment. The landslide has been reactive.
The Darrington slide is a relatively big slide.
Fleetwood asked if the buyouts are mandatory or voluntary. Cooper stated
the buyouts are voluntary. There is only one house on Jones Creek.
Fleetwood asked if the Council could mandate a buyout. Cooper stated the
County could use condemnation.
Caskey- Schreiber stated hopefully all the projects would go smoothly.
(Clerk's Note: The Council took a break at 1:07 p.m. for five minutes.)
2. SALMON RECOVERY
Salmon Recovery Plan Update
Bruce Roll, Assistant Director, stated staff will update the Council on the
salmon recovery plan. Staff also proposes a resolution that the land use caucus
supports the plan.
John Thompson, Senior Planner, stated there are two documents. The
summary document is the primary tool to get the word out to the community about
key actions proposed. The technical document is still being developed. It is the full
plan with the scientific basis and rationale. The technical document needs to go to
Water Resources Work Session, 4/19/2005, 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.
Shared Strategy by the end of this month. They are still planning to do review
before the end of the month. The plan will be a work in progress. Staff proposes
to prepare a cover letter that would clearly state the status of the document to
Shared Strategy. The proposal now is to have a joint cover letter from the caucus
members.
Shared Strategy also wants the County to state its commitments and
conditions that are in place. They will expect certain assurances from the federal
government if they do the things in the plan. The local government caucus would
like to write the resolution in a way to reflect the commitments and conditions of
the local government caucus. Speak as one voice when sending the technical
document to Shared Strategy. Have one resolution instead of one from each local
government.
The next step is to get the technical document and cover letter together by
end of month. Then, he will continue doing public outreach through May. They will
have a joint resolution by the first of June.
Roll stated water resource inventory area (WRIA) 1 is doing great compared
to other WRIA's. It has a good technical basis. The tribes are involved. They have
a local structure for receiving salmon recovery issues. The interlocal agreement to
establish it is the model for other WRIA's.
Brenner asked if some of the other WRIA's are going to plagiarize what
Whatcom County has done. Other WRIA's claim they are done, but haven't done
anything. Thompson stated it varies by watershed. The Skagit watershed is the
model for salmon recovery. The Skagit Watershed Council is the body that
oversees it. It is not a policy body for recovery. However, Shared Strategy has
had to contract out the recovery work. The status is different with each
jurisdiction.
Roll stated that if they don't do the plan, someone from Shared Strategy or,
ultimately, the federal government will fill in that section of the plan.
Thompson stated it's great if what Whatcom County is doing things to help
other counties.
Roy asked about the commitments and conditions. Roll stated the
commitments and conditions are in the summary document the councilmembers
received. Staff will be working this year on what the County is willing to do. At this
point, the County doesn't have any huge items to for councilmembers. The
purpose of the Shared Strategy plan is to get federal funding and to work out land
use issues in local jurisdictions.
(Clerk's Note: End of tape one, side A.)
Water Resources Work Session, 4/19/2005, 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.
Brenner asked if the County is not required to implement the plan if the
County doesn't get funding help. Thompson stated the draft resolution identifies
four conditions for implementation. One condition is that the local work gets
incorporated into the Puget Sound Plan. Another is to seek federal assurances that
the federal government won't force a take in action against the County if the
County follows the plan.
Roll stated this plan has to go to the federal agencies. The federal agencies
have to indicate their levels of acceptance of the plan. Provided the science is
credible, the County proposal will be accepted as a chapter of the plan. There is no
clear statement from the federal government on what the County will get in return.
The federal government will support the County's ability to accomplish the plan.
It's a framework for engagement. There are different degrees of assurances. As
the plan comes out, there is that debate about federal assurances.
Brenner asked what it means that the federal government will support the
County. Thompson stated the County is asking for protection from enforcement
under the Endangered Species Act (ESA) and is also asking for funding. Shared
Strategy needs a ballpark budget for the salmon recovery plan, and will begin to
work with federal government to find funding.
Caskey- Schreiber stated there are estimates for implementing the salmon
recovery plan items. It's a great plan. It sounds like it's all common sense.
Roll stated the County is part of a funding group that is discussing what the
Shared Strategy will propose to deal with. Now, there is no new funding sources
other than what can be pried from the federal agency. Shared Strategy is also
looking for counties to make a flood project fish friendly while protecting the
resource. Whatcom County does that as a part of its business, but not other
counties. Shared Strategy is hoping there is a section of fish passage in planned
projects and budgets. Through value -added projects and current funding, they can
double the overall funding available annually for the next ten years.
Nelson stated the federal goal under ESA is to enhance the fish in the
streams. He asked if its correct that not doing anything will result in economic
impacts and no allowed land use activities. Instead, the federal government gives
land use responsibility to the states to develop a mechanism to enhance the
species, which is the federal government's job. The federal government will work
with the states by having an action team that works with local communities. The
local level can produce a broader, more comprehensive approach than the federal
or state levels can do. If local jurisdictions take action, the federal government will
only appreciate the work that it doesn't have to do. Thompson stated the federal
government's ability to provide assurances may improve over time. They may offer
first tier assurances, and the County would get more assurances over time.
3. INSTREAM FLOW PILOT PROJECTS
Water Resources Work Session, 4/19/2005, 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.
Instream Flow Negotiations in Bertrand Watershed and Middle Fork of the Nooksack
River
Bruce Roll, Assistant Director, stated Henry Bierlink works with the Bertrand
Water Improvement District (WID). The State Department of Ecology (Ecology) set
money aside last year to hire Bob Anderson as a mediator to facilitate the two pilot
projects in Whatcom County. Last month, the water resource inventory area
(WRIA) Planning Unit approved the WRIA watershed management plan last month.
The press and public are being engaged to provide input. At some point, the
Council will be asked to approve or reject the plan.
One component of the plan is the instream flow action strategy. This
document is part of the WRIA plan. Early on, they decided to do pilot flow
exercises to better describe how to do the entire basin. The two locations are the
Bertrand watershed and the middle fork of the Nooksack River. The City wants the
middle fork instream flow set, because it's tied to how the City manages the
diversion.
The County Council gathered people in the Bertrand WID and engaged in an
interlocal agreement with the Public Utility District PUD to gather technical
information for the instream flow exercises.
Brenner stated it seems like Bertrand is very different from the Middle Fork.
Very organized groups are able to contact people. She asked how people have
been contacted in the middle fork area. Roll stated they haven't got to that yet.
To date, the Joint Board staff worked to identify the next steps. The action
strategy is identified in the plan. Participants are interested in creating an
agreement to help bring together the participants in these processes. The County
signed an agreement with the tribes, City, and PUD 1. This agreement is an
extension of that previous agreement. He provided a draft memorandum of
agreement, which is one in a series of agreements to get the core group working on
setting flows in the two pilot projects. There are also agreements for people who
want to participate.
Caskey- Schreiber stated this agreement seems tentative and fragile. She
asked if this is what they will rely on to get people to work together. Roll stated
the memorandum of agreement is the first step to bring people to the table to work
together. It's not exhaustive with a clearly defined purpose.
Brenner stated there isn't a Middle Fork Watershed Improvement District or
other organization to reach out to people in the area of the middle fork of the
Nooksack River. Roll stated the City of Bellingham is willing to bring money to the
table to see this project implemented. It is interested because of the diversion
strategy. There are many climates in each of these watersheds. They tried to
choose very different pilot areas to work through all the issues that will come up.
Water Resources Work Session, 4/19/2005, 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.
Dan Gibson, Senior Civil Deputy Prosecutor, stated the middle fork and
Bertrand areas are very different. Irrigation- dependent agriculture is not an issue
for the Middle Fork. Look at who are the water users, purveyors, and how they
access water. That bears on the issue of notification and involvement.
Crawford stated there is language in the agreement about not being legally
binding. That language isn't in the Middle Fork agreement. It sounds like
something the tribes put into the agreement. Roll stated there was similar
language in the early WRIA documents. He expects that these two agreements are
similar in language. That language should be in both agreements.
Gibson stated there is a limitation to which the parties can bind various
individual players. Eventually, it may lead to a more full - fledged commitment.
Crawford asked if the language is about those individuals sitting at the table
who must get decision - making direction or about the County Council deciding not to
do something it already said it would do. Gibson stated that because of the role the
County plays in water purveyance, the County Council has a limited role in terms of
water rights agreement. The County's role is with comprehensive planning and
land use. This body formed in the agreement is not a legislative body.
Fleetwood asked what a breach would look like and the remedy for it.
Gibson stated a breach is something that causes the process to fall apart through a
destruction of trust. If one party doesn't live up to its word, people don't trust and
leave the table. The remedy is going to court and getting involved with protracted
litigation.
Bob Anderson, University of Washington Law School, stated he has
experience in public land law, water law, and property. He has practiced law for 18
years before joining the University of Washington. He worked six years for
Secretary of Interior Babbitt.
He agreed to be the legal mediator for this effort. His job is to help try and
see if there is sufficient common ground to negotiate and see if the water users can
come to a settlement of consumptive rights, irrigation, domestic, industrial,
municipal, and out of the river uses, along with accommodations of tribal rights to
instream flow that they claim, without going to court. It has been successfully done
in the past in a project he worked on. In the previous project, they started out like
this, worked on pilot projects in areas where they can come to agreement on
different aspects of water use, and developed relationships and structures for
settlement on an area -by -area basis. They pulled it together in a document. The
aim is to get everyone on board as much as possible. The alternative to
negotiating a solution is to go on as usual and have major litigation. He described
the past case he was involved in with the entire Snake River basin in Idaho.
Water Resources Work Session, 4/19/2005, 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.
Nelson stated they are trying to agree on instream flows. Established
instream flow levels have to be a number that is put out there. He asked if the
State decides the flow it needs for fish. He asked where to start. Anderson stated
the Utah State University (USU) study is done through the WRIA process. Parties
want to consider that data. That data will become available this summer.
Technical staff will need to look at it, maybe get a third party to review it, and get
comments on it. That data is a potential starting point. In his experience, one
could hire an expert to critique anything one doesn't like. It really comes down to
whose ox is going to get gored if they set instream flows at a certain level.
Gibson stated one needs to be careful not to treat water as an abstraction.
View it in its ecological context. They are talking about habitat. Water is one of the
components of habitat. It is a very important part of the process to determine the
other components of healthy habitat, which fine tunes the water partner.
Nelson asked if Mr. Gibson is saying that the water component can be flexible
because of other factors. Gibson stated that if they discount the importance of the
other, then the party who is looking at the health of the fishery will increase the
water.
Roll stated USU and staff is looking at how much water needs to be there for
high, low, and average flows. They are developing a regime, a range of flows
depending on conditions, that they manage the resource around. There are
different strategies for high or low flow years. They want to be more sophisticated
than picking one flow level for every conditional.
Nelson asked how high flow years affect land use decisions. Roll stated that
is a good question.
Brenner asked Mr. Anderson about his previous case and if, once people sat
at the table and went through the agreements, everything progressed and none of
the parties, such as the tribes, asked for adjudication. Anderson stated they were
in adjudication already. They worked to get people with actual knowledge
negotiating the different areas. Congress contributed $80 million for habitat
protection.
Brenner asked if the tribes compromised on what they had initially
considered their water rights. Anderson stated the claim the tribes filed would have
taken up all the water in Idaho. In the final agreement, the tribes subordinates all
its instream flow rights to all existing users. There is an increment of five percent
above the current use in most areas for future domestic and commercial use. It
was extremely controversial within the Tribe. The State changed its forest practice
laws a bit. The Endangered Species Act (ESA) and federal government was a part
of it. There will be ESA coverage for 30 years.
Brenner asked if that case could be used as a blueprint for Whatcom County.
Anderson stated the process would be similar. How the claims are comprised must
Water Resources Work Session, 4/19/2005, 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.
develop on its own. The trick is getting to what works for people who have water
rights, fish, and regulating governments.
Fleetwood asked if existing users means permitted and non - permitted users.
Anderson stated there were few non - permitted users.
Nelson asked how to avoid making this a land use mechanism and make sure
the majority is confident in the process. Anderson stated land use was part of the
final deal. That's why the Tribe was willing to give on some of its instream flow
claims. The Tribe got better road management regulation related to timber
harvesting and better buffers on certain types of streams.
Nelson stated there is a give- and -take on habitat protection, economic
protection, and environmental protection. Anderson stated that is correct.
Roy stated she is very impressed with Mr. Anderson's experience. She hoped
this is not just a consultant that will stay around. Roll stated the Council should let
the State legislators know that this is important. There is no shortage of complex
work that needs to be done.
Caskey- Schreiber asked if the County can mandate DNR to do better road
management, or if it has to agree to it. Anderson stated they will have to get
everyone with something to give at the table at some point. The Governor is
interested in settling the Indian water rights disputes through a negotiation
process. It's a much more preferable route than costly litigation. The groups he's
met with are highly motivated to work on certain issues. He likes the idea of
bringing in certain groups to work on pilot projects.
Henry Bierlink, Bertrand WID, stated the process involves more than Mr.
Anderson. The process is laid out in the WRIA plan. Mr. Anderson is a skilled
person to help make it happen, but the project will go forward no matter what.
Fleetwood asked if there is enough information to forecast what the disputes
will be. He asked how they will deal with those situations.
Caskey- Schreiber stated Mr. Anderson said he didn't want to jump to
conclusions before the process happens.
Brenner asked if it is possible for the Council to get a summary of Mr.
Anderson's previous case. Anderson stated that information is available.
McShane stated the agreement is between the local entities. He asked the
role the State sees them playing. Roll stated the State is willing to sign both of the
documents and be committed to the process. That is wise in a number of ways. If
the Council is prepared to sign the document, Ecology's commitment could be a
condition of the signature.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
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are not the final approved minutes.
McShane stated it sounds like the Middle Fork project is where the Forest
Service would play a significant role in terms of the dams. He asked if Mr.
Anderson would approach the Forest Service to be a party. Anderson stated the
Forest Service would need to get on board at the appropriate time.
McShane stated there is a program with the U.S. Forest Service through the
Skagit Resource Advisory Committee and the Secure Schools Fund Act. Money is
available there.
(Clerk's Note: End of tape one, side B.)
Tom Anderson, Public Utility District 1, stated an appropriation is in the
legislature to continue funding Bob Anderson's involvement. It was in the House
budget, but not in the Senate budget. It wouldn't hurt to encourage the Senate to
continue that funding.
Nelson moved that the Council Chair draft a letter to the Senators.
Caskey- Schreiber asked if Dr. Roll can construct a letter. Roll stated he can.
Motion carried unanimously.
Tom Anderson stated the Forest Service has participated in water resource
inventory area (WRIA) planning. The Forest Service is aware of WRIA planning, but
is busy. They have had a good process with them in terms of awareness. The DNR
is the least aware of the process. They will need to bring the DNR into the process
at some point. Ecology has agreed to sign the memorandum of agreement. There
is also discussion about how Washington State Department of Fish and Wildlife
(WDFW) will participate.
Roll stated his staff recommendation is to use the same process as used with
2514, for one State staff person to speak as one voice for the entire State.
He asked for concurrence on the most recent versions of the MCA
documents. A motion is meaningless until he has a final document.
The Council concurred on the most recent versions of the MCA.
OTHER BUSINESS
Bruce Roll, Assistant Director, stated there is a letter from Lummi Island
Congregational Church. There was a lack of communication between the church
representative, but they will meet on Thursday. The situation is moving forward.
The public forum on the water resource inventory area (WRIA) watershed
plan is at the Laurel Grange on Wednesday, April 27. It is a forum to gather input.
Water Resources Work Session, 4/19/2005, Page 11
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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 result will be a table of comments submitted. Staff will create staff responses
to comments they will hear. That table will be the product the Council will receive.
ADJOURN
The meeting adjourned at 2:17 p.m.
Jill Nixon, Minutes Transcription
The Council approved these minutes on May 24 , 2005.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Laurie Caskey- Schreiber, Council Chair
Water Resources Work Session, 4/19/2005, Page 12