HomeMy WebLinkAboutWater Resources February 15 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
February 15, 2005
Council Chair Laurie Caskey- Schreiber called the meeting to order at 10:00
a.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 DIVISION
Alternatives Analysis for Lower Nooksack River
Paula Cooper, River and Flood Division Manager, gave a Power Point
presentation (on file) to update the Council on recent activity on the alternatives
analysis for the Marietta area and Slater Road area. She read the presentation on
the background on the analysis and alternatives analysis steps. They went through
this analysis to get benefit cost (B /C) ratio for grant applications.
Nelson stated the modeling is the whole thing of what they do with the river.
The options show the costs and benefits of the various scenarios and if they don't
do anything. He asked what the criteria is when they do modeling and how they
get a cost estimate. Cooper stated she will get into that.
Roy asked if the models include repercussions downriver and upriver.
Cooper stated the hydraulic model looks at the whole stream area.
She continued the presentation on the types of damages. Associated
damages is damages paid to do clean up, for instance. Business damages are
specific to individual businesses, and they are more detailed.
She continued the presentation on definitions, the Ferndale storm events,
and Marietta flooding. For these two areas, she looked at the Ferndale gauge.
They used real storm events to simulate the flood peaks. She also fabricated a
100 -year flood. The Marietta area, on the left bank of the river, is the most
Water Resources Work Session, 2/15/2005, 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.
frequently flooded residential area on the Nooksack River. It requires sandbagging
in two locations, including the intersection of Marine Drive and Rural Avenue.
Sandbagging allows water to pour over the road at the back of the residential area.
There is also a levee along the tributary channel of the Nooksack River that
Marietta also has problems with. That levee is subject to overtopping and piping.
It is an old levee with questionable material. Water flows through it. It is a
challenging area to protect. She continued to read the presentation on Marietta
flooding. There is no conveyance to get rid of local runoff until the river drops.
Brenner asked why they don't add more material to the levee. Cooper stated
they have to take it down and rebuild it.
Nelson asked how the levee was put in, if there is no diking district. Cooper
stated she doesn't know. Marietta used to be a coastal community. To build the
levee up, there are challenges with existing houses. She continued to read the
presentation on Marietta flooding.
Brenner asked if any of the six homes with flood insurance are the 14
existing stick -frame homes. Cooper stated five of the 14 stick -frame homes have
flood insurance.
Brenner asked if the insurance company would be amenable to moving those
stick -frame homes, so there are only 11 stick -frame residences that would be a
problem. Cooper stated Federal Emergency Management Agency (FEMA) money is
available to structures that are damaged by more than 50 percent. It's hard to tap
into that money. A house has to practically be ruined.
Cooper continued to read the presentation on Marietta alternatives. If the
status quo continues, the levee will degrade.
Brenner asked why the County would care if someone doesn't want the
County to buy them out. Cooper stated she will speak more about the challenges
of a buyout in an area like this.
Cooper continued to read the presentation on the preliminary model results.
Nelson stated that building up the elevation doesn't address the holes in the
dike. Cooper stated they would have to rebuild the dike. Costs were estimated
based on taking down the existing levee and rebuilding it with the material they
want.
Cooper stated that by raising the levee along Marietta, they are diverting
water from the left floodplain overflow corridor back into the river, which could put
pressure on the right hand bank. She continued to read the presentation on the
residential damage analysis.
Water Resources Work Session, 2/15/2005, 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.
Brenner asked how many of the 14 houses are on a high basement. Cooper
stated only one house has a chance of being elevated, but she's not sure if it is high
enough.
Cooper continued to read the presentation on the residential damage
analysis, damage analysis results, and estimated costs and benefit to cost (B /C)
ratio. The average annual damage results are small. The estimates assume no
remaining residual damages to the structures. The improved levee estimate is
based only on removing the material and rebuilding the levee. It doesn't include
the fact that they have to deal with houses in the area, also. For most funding
agencies, the B/C must be greater than one.
Caskey- Schreiber asked if elevated structure option is a viable long -term
solution or if they would have to do a buyout eventually. Cooper stated that option
elevates structures, but doesn't deal with lack of access during flood or impacts to
such things as septic systems. This was just a first look to see if they are close to a
solution for the community.
She presented this to the committee in last June. She also talked to people
with experience in areas like this. The Town of Hamilton has similar issues, and is
being relocated. Buyouts are challenging in these types of areas. The home
owners participate, but the others don't. The result becomes a rural ghetto. The
Town of Hamilton set up a public development authority to buy new lands, build
new development, and move the town. That effort required help from Governor
Locke.
Brenner asked if they can do something like that with Marietta. Cooper
stated the committee didn't go into that detail. The committee considered that the
left flood plain from Hovander Park has been purchased for an overflow corridor.
Marietta is at the downstream end of the corridor. That limits options. The Port of
Bellingham is trying to develop wetland mitigation upstream from Slater Road, in
that area. By not allowing them to put water in the left flood plain, it limits what
they can do on the right bank.
Caskey- Schreiber asked if the buyout costs included the benefit of the
overflow area. Cooper stated it does not. From the grant perspective, there hasn't
been a lot of work done to quantify the environmental benefits. The grant
applications don't let them do that.
The committee made a recommendation to the Board of Supervisors to work
on a long -term buyout project. The first thing to do is to purchase things off the
Treasurer's foreclosure list as property is foreclosed. The committee also
recommended purchasing any property as it comes up for sale.
Roy asked if the County would purchase those properties with flood control
money. Cooper stated it would.
Water Resources Work Session, 2/15/2005, 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.
Brenner asked to explore a public development authority like the one done in
the Town of Hamilton, to move the residents of Marietta.
Caskey- Schreiber stated that was a town with many dwellings. This is much
smaller, and won't carry the same clout with the state as a full town.
Brenner stated they won't know if they don't ask.
Roy stated she's heard this is an extremely site - specific, complex, and
politically complicated process. She's not sure how politically realistic that is for 14
houses.
Crawford asked if those houses are in bad shape. Cooper stated they are.
It's difficult to do a buyout when the home isn't very valuable. The person wouldn't
receive enough money to relocate.
Crawford stated there are several other properties upriver. Cooper stated
they are not focusing on that area. Nothing else is left on Marine Drive. Given the
recent flooding, people from the area call her office weekly. The public understands
that rebuilding the levee would cost more than what the levee is trying to protect.
The public still is trying to work with the County road department to improve
interior drainage, which can help in certain events.
Roy stated that at one point in the past, the Council saw a picture of a road
that had a big gully under the it so the river could overflow underneath the road.
She asked if that is something the County can do.
Cooper continued the presentation regarding Slater Road. The area is in the
east flood plain. She read the presentation about Slater Road flooding and Slater
Road alternatives.
Nelson asked the fill needed. Cooper stated it would require a lot of fill.
Hal Hart, Planning and Development Services Director, stated the Port of
Bellingham looked at the option of a bridge longer than this for salmon habitat and
wetland. There may be funding opportunities for that option.
Cooper stated Steve Seymour from the State Department of Fish and Wildlife
has also talked about that. The concept of a large overflow corridor is held back by
the presence of Slater Road and Marietta. They are the two main impediments to
that corridor right now.
Roy asked if using fill would be counterintuitive to preserving wetland.
Cooper stated fill would be just along the roadway.
Nelson asked if flood would damage the fill over time. Cooper stated that if
this moves forward, staff will finalize a design that won't do that.
Water Resources Work Session, 2/15/2005, 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.
Caskey- Schreiber asked if this is the best design. Cooper stated a culvert
can't accomplish as much, with the cost. This bridge is the best option to get the
roadway up. The new roadway would be elevated above the 100 -year flood level.
Roy asked if the B/C analysis included the option of not doing anything.
Cooper stated it did. She hasn't presented that information.
Crawford asked if building a causeway would be more expensive than the fill
option. Cooper stated it would be a lot more expensive.
Caskey- Schreiber stated that if it would be possible to have a better model
that wouldn't have all that fill. Explore the option of a causeway. It may be harder
to construct and more costly, but it might suit that area better. Cooper stated the
grant program is a FEMA program that considers benefits and costs. There would
have to be a special allowance for FEMA to say that the total cost is more than this
option. This option will cost about $4 million. The County would have to find
additional money for the additional cost of a causeway. FEMA would have to
acknowledge benefits other than those shown in the traffic damage analysis.
Hart asked if the analysis looked at a time delay in Ferndale. Cooper stated
it did. She will get to that.
Nelson asked what the fill is made of. Cooper stated the fill would be
specified for this use. She's not a road engineer, who would specify the type of fill
needed for this use.
Nelson asked if the fill material would come from somewhere in Whatcom
County.
Jeff Monsen, Public Works Director, stated the scale of the effort now is to
identify a project eligible for a FEMA grant. Regarding bridge length, they've looked
at longer bridges, but made it shorter and shorter until the benefit matches the
cost. Fill is cheaper than a structure. A lot of material is involved. However, the
Park Road project took more fill than this project. This project does not have a
huge footprint consuming wetlands. The location will be sited to minimize or
eliminate fill in those areas. This bridge will span a large area that has a trickle of
water, with lots of water from time to time. The last four times Slater Road was
closed, two closures were due to water going over the bank at the County park and
moving downstream and the other two closures were due to water going over the
levee by Marine Drive and moving upstream. When the road is closed, the water is
there to fill the lake, and the lake sits there. There is not a continuous flow. It's a
lake. It's water that fills a basin.
Roy asked if that means they aren't interrupting a salmon stream. Monsen
stated there are a number of projects for restoration to that area for salmon
recovery. However, it's more for wetland management rather than stream
Water Resources Work Session, 2/15/2005, 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.
restoration. One key issue is how to deal with the water that pools into a lake, and
whether to drain it quickly or let it sit for a long time.
John Thompson, Senior Planner, stated that at the downstream end on
Marine Drive, there is a combination wetland /salmon rearing habitat enhancement
project tied to Marietta Slough. Establishing a Tennant Creek meander zone would
benefit fish, but suffered somewhat from the flood because it has become a flood
storage and conveyance issue.
Monsen stated the flood project here is to allow those activities to proceed,
but it won't change whether it can proceed or change the scope.
Cooper continued to read the presentation on the factors considered in the
traffic damage analysis, preliminary model results, and actual road closures from
2003 to 2005. She's working with FEMA to let her include the real damages in the
analysis to reflect reality. That will help justify a larger project.
Fleetwood asked if they anticipate that they will meet the requirements.
Cooper stated she does. She's been working with the Lummi Nation on this.
They're trying to get to the $4 million mark. They are close to that.
(Clerk's Note: End of tape one, side A.)
Cooper continued to state that FEMA has a new program that is a pre -
disaster mitigation grant program. Communities are required to have a FEMA-
approved all- hazard mitigation plan to apply for grants. The County is not quite
there. The County has submitted a plan, but FEMA hasn't approved it yet. The
Lummi Nation has already been through the process. The Lummi Nation will take
the lead on the grant application. If granted, the Lummi Nation will pass the
money to the County to design the bridge. The cost share is 75 -25. They will get
$3 million in grant funding, and the County road fund will contribute $1 million.
Construction will start in the Spring of 2008.
Crawford asked if this is on the six -year road program.
Monsen stated it is on the program. They knew this analysis needed to be
accomplished before determining the final dollar amount.
Crawford stated this is a significant benefit to a lot of people in the county.
The project could be moved up on the priority list. Monsen stated this is one of
many road projects coming forward.
Crawford asked if the City of Ferndale is in favor of the project, given its
congestion problems during the last flood. Cooper stated there are letters of
support from the City of Ferndale and other vested interests.
Water Resources Work Session, 2/15/2005, 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.
Roy stated traffic through Ferndale is bad all the time, not just during floods.
She asked if there is a plan for relief out there.
Hart Planning and Development Services Department Director, stated the
City is putting additional land uses at the Haxton overpass, which will make it even
more congestion.
Joe Rutan, County Road Engineer, stated there have to be additional funds
found for construction of this project to occur.
Cooper stated she hears support from the Council for the Marietta project.
She will come back to the Council when she has specific properties. FEMA will
decide in May whether the Lummi Nation will get the grant for Slater Road.
Nelson asked how they can go ahead with the Slater Road proposal without a
solution to the Marietta problem. Cooper stated this Slater Road project won't
make the problem in Marietta worse.
Update on the Acme -Saxon Proiect
Cooper stated the design engineers have done a new design. There was a
public meeting at Acme Elementary. Some people are feeling better about the
project. Others still have unresolved issues. The next step is to get the 50 percent
design drawings so the Acme /VanZandt Sub -Zone Advisory Committee can look at
them. The committee will try to make a formal recommendation to the Flood
Control Zone District Board of Supervisors.
Nelson stated make sure the Sub -Flood Zone Advisory Committee members
and community members are aware of the project and its impacts. Cooper stated
the members have been informed of the project.
Chris Hatch, Acme /VanZandt Flood Sub -Zone Advisory Committee member,
stated that once the advisory committee gets the information from the tribes, the
committee will be talking to the community.
2. LAKE WHATCOM
Bruce Roll, Assistant Director, stated there are two items regarding Lake
Whatcom.
Development Moratorium
Brenner asked the number of violations and citations issued in the
watershed.
Water Resources Work Session, 2/15/2005, 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.
Hal Hart, Planning and Development Services Department Director, stated
the department gets a lot of calls that come in on the same violation. When they
looked over the past three years, there were 308 violations, but inspectors looked
at many more complaints. Of those 308 violations, all owners made corrections
except 38, which went to the next phase, which is potentially issuing a fine. He
tries to get people to do the right thing in the watershed and correct what they are
doing.
Caskey- Schreiber stated Bob Martin, the new Land Use Division Manager,
stated there is a staffing problem with only three enforcement officers. It's no
wonder enforcement has been nonexistent.
Sam McDaniel, Lake Whatcom watershed inspector, stated the enforcement
process is to do site inspection, then issue a correction notice and deadline. When
staff re- inspects, the case is close if the problem is fixed. If not fixed, the next
phase is penalties, up to one thousand dollars per day.
Brenner stated every time the County responds to a complaint, it costs the
County time. If staff goes to a property the first time and someone is violating, the
person should be issued a citation and fine. It costs the County monetarily and it
also costs in the faith and trust of the people of the community and those who do it
right.
Caskey- Schreiber stated Councilmember Brenner would like to see
enforcement hit harder. They are understaffed.
Hart stated another issue is the annual increase in permit numbers. In 2001,
the County permitted 85 single - family residences. Through July 2004, the County
permitted 284 single - family residences.
Caskey- Schreiber asked how many sites Mr. McDaniel does per day.
McDaniel stated he inspects 12 to 15 sites per day.
Nelson asked if there are other ideas on how to deal with this problem. Hart
stated there are. They need to look at how they're doing this administratively.
They are considering changing the way the department does enforcement. They
want to make internal administrative changes so they can cover as much as they
can. The question is how to do more with less. He will bring his administrative
changes forward when they are ready.
Brenner stated she understood from the County Executive that there is more
money available for staff.
Bruce Roll, Assistant Director, stated there are documents to work through,
the work plan, the ordinance, and a memo from Councilmember McShane.
Water Resources Work Session, 2/15/2005, 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.
Caskey- Schreiber stated they've always talked about a seasonal clearing ban.
The Council must discuss it.
Crawford stated he has specific ideas on construction runoff and would like to
discuss them at some point.
Nelson stated they already have a work plan. He's comfortable with the work
plan. There may be other measures to consider. He would like to start getting the
work plan items in place. They are gathering information already. Take
responsibility for what they can and can't do. Anything they try to do will take
funding. The City has a mechanism to raise money for land preservation, but not
to take care of stormwater.
Crawford stated regulations don't take any money to pass. They may need
an overview of everything they can look at. There are many things that don't take
any money. It's a matter of what rules they want to enforce.
Nelson stated increasing staff for enforcement takes money.
Fleetwood stated today they need to establish a process. Don't go into
specifics. The fundamental question is what moratorium response program the
Council will establish to justify lifting the moratorium when it is fulfilled. That is the
object today. He is averse to going into great detail at this time on what those
should be. The public needs to know the Council has a process.
Most of the subject matter, which will be the basis for some kind of response,
is referenced somewhere in the Lake Whatcom Management Plan. The issue is
what the Council wants to prioritize from that plan.
Caskey- Schreiber stated she agrees with Councilmember Fleetwood.
Develop a process first.
Roy stated don't start talking about money first. First, decide the Council's
priorities. Then, do a lot of work on what they want to do specifically. She has
opinions about what areas they need to work on during the moratorium. Everyone
has that opinion. They will have to put extra time into this in the form of extra
meetings.
Brenner stated she suggests setting up a Council subcommittee to do just
that. That subcommittee should meet often. Don't tag it on to an existing Council
committee because it will get dragged out.
done.
Crawford stated they should listen to staff about how this process can be
Roy agreed that this should be handled in a separate committee.
Water Resources Work Session, 2/15/2005, 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.
Caskey- Schreiber stated the issue with a separate subcommittee is when it
would meet.
Fleetwood stated many citizens want to be a part of a citizens committee.
Caskey- Schreiber stated the Council doesn't have time to work with a citizen
advisory committee. It takes a month just to get an ordinance passed.
(Clerk's Note: Council Chair Caskey- Schreiber left the meeting at 11:30 a.m.
Council Vice -Chair Fleetwood assumed the duties of the chair.)
Brenner stated the Council needs to form a Council subcommittee. People
can still be involved in the process with a subcommittee.
Hart stated staff needs to understand what the Council's priorities are.
Roy stated she agreed with Councilmember Brenner. Citizen input can come
from the normal process.
Nelson stated they have time from May 1 to October 1, as well. October 1 is
when the rainy season begins. A Council priority is an enforceable plan to protect
the watershed during the wet season.
Lake Whatcom Work Plan
Roll stated there is a plan that covers all the areas that make up watershed
protection. Go through the plan to prioritize tasks. Everything the Council has
discussed is already in the work plan.
Nelson stated his first priority is stormwater management. The alternatives
to the point system, which isn't working. Next, if there are retrofitting problems to
address, then discuss funding for that. His third objective is how to incorporate the
Lake Whatcom Management Plan, including the role and responsibilities of the City
and the County and City relationship under threat of a 303(d) listing.
Brenner stated her priority is stormwater management. Retrofitting falls
under stormwater management. Get a handle on that, and they won't need any
moratorium.
Fleetwood stated his priority is stormwater also. It's a question of whether
they are talking about future runoff or runoff from the built environment. They
need stricter building codes to deal with future runoff. They have to have a policy
discussion about how much runoff they are willing to tolerate. Runoff from the
current built environment is the big problem. If they say they are not going to lift
the moratorium until that process is in place, they will not fulfill that for a long
time.
Water Resources Work Session, 2/15/2005, 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.
Brenner stated they keep saying they need better regulations. She's not
sure if they need better regulation or better enforcement. She would like to figure
out how much enforcement they need versus how much regulation they need.
Roy stated she would like an answer on how expensive retrofitting will be for
the current built environment. She doesn't know how expensive it will be. They
don't have to talk about how to fund it. She wants a general idea of how much it
will cost.
She is willing to take a hard look at looking at the original seasonal land
clearing ordinance. She is willing to consider a wet season land clearing ban if they
can't get enforcement in place. They need certain things in place to lift the
moratorium.
(Clerk's Note: End of tape one, side 8.)
Roy stated her concern is with what happens when the land is disturbed
during the rainy season and how the County intervenes.
Crawford stated he has some random ideas. One idea is to look at aeration
to help the depleted oxygen levels in basins one and two. Some believe it wouldn't
be overly challenging or expensive. It is something that could reverse a trend
quickly and with limited investment.
He asked if seasonal clearing is no longer in effect.
Roy stated they now have a point system. They started with a system that
would ban all clearing during the rainy season. The Council compromised by
setting up the point system instead.
Crawford stated a home builder has certain prescribed things it must do. He
senses that the County is in more of a reactive mode in abating construction runoff.
There may be a way to develop a fee structure to pay for more inspectors through
the permit system. The County can take a more proactive role, which would
require fees to pay for it. Folks doing construction want to know what is expected
and will pay for predictability. Sit down with the builders and talk about that.
It might be helpful to have people explain what is going wrong with the
current system. The Council thought they dealt with the runoff problems. He
asked if what the Council asks, clear water off the site, is impossible. Talk with
people who thought they were doing it right but who found themselves in violation.
Try to understand where the County is failing.
He's unclear about what they are trying to accomplish with the moratorium.
He doesn't support seasonal clearing because he doesn't care what season it is. He
cares about what is coming off the job site. He asked if the stormwater issue is a
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phosphorus issue. Oxygenate the lake and deal with phosphorus loading, which is
a stormwater runoff issue.
Nelson stated these are issues that can be discussed through a committee.
Staff is asking what the Council emphasizes and is trying to do. Items 2.1 through
2.5 of the work plan priority actions for 2005, shown on Council packet pages 11
and 12, should be emphasized. Discuss the roles and responsibilities of the
County's relationship with the City and what the County and City can do together to
manage phosphorus loading and oxygen depletion in the watershed. Looking at
possible solutions can be done through a committee. They need input from the
community in this discussion. When they get to the final product, whatever that is,
the input will already be done so they don't have hearings where people claim they
weren't involved and don't know what is going on. Continue with a process that
staff understands to accomplish a goal. The issues have already been outlined
here.
Brenner stated they need to meet on this issue more frequently than every
two weeks. Set up a committee today that can start meeting right away.
Nelson stated they have to give staff time to get materials ready. He'd like
to look at the ordinance they started with.
Roy stated they can, while taking Drayton Harbor out of it. One problem
with the ordinance was that it included all of the Drayton Harbor watershed, which
is huge. Talk only about the Lake Whatcom watershed for now. At the time it went
through, the Council was overwhelmed with developers from that huge watershed
who didn't understand why they were subject to the ordinance.
Fleetwood stated that is a starting point. A result of this meeting must be an
idea on the direction they want to go in terms of process.
Sylvia Goodwin, Planning Division Manager, stated there are now 250
complete applications that are vested. A change of the seasonal land clearing
restrictions would not apply to those vested applications. They have until October
to get those final regulations in place. A question is what happens with all the
appointments made throughout the summer and whether all those new applications
will be vested under the regulations that existed when the application came in. If
they don't do anything until October, there could be hundreds of applications that
could clear next winter.
Roy stated the Council said all the people who were in line must adhere to
the new regulations. She doesn't know if that's legal.
Fleetwood asked if there is a way to establish a process to convert permits to
some sort of vested, pending status to relieve the pressure from acting on them
this year. Many people ran in to get vested, but who don't want to develop this
yea r.
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Crawford stated they are not legally vested. They are operating on the good
faith of the County.
Fleetwood asked if there is a way to allow those vested people to build in the
future.
Dan Gibson, Senior Civil Deputy Prosecutor, stated the Council can revisit the
vesting ordinance. In the case of a severe - enough emergency, vesting on certain
matters can be suspended. Just because someone is vested, in the face of a true
emergency certain elements of regulations can be imposed, despite vesting.
Hal Hart, Planning and Development Services Department Director, stated
there will be a lot of attrition. Every morning, staff is making administrative
decisions. If someone wants to make significant footprint changes, the person has
to go to the end of the line and start over under the new regulations. That is
already starting to happen.
Nelson asked the impact if the Council changes the regulations to prohibit
construction in the watershed during the wet season. Hart stated it depends on the
attorney's interpretation of vesting.
Gibson stated vesting generally means that one is entitled to the regulations
in effect at the time the person submits the application. Backing up vesting to the
appointment date is something the County would do in good- faith, based on
representations made.
Nelson stated that gives the County time to prohibit building during the wet
season. By October, the Council will hopefully have an ordinance in place to protect
the watershed. A builder would have the option of reapplying for a new permit
under the new ordinance. The first step is to tell people the County is going to
come up with restrictions that would replace a complete ban from building during
the wet season. That is more honest and up front.
Crawford moved to form the County Council Lake Whatcom Moratorium
Response Committee, members of the committee are Councilmembers Nelson,
Fleetwood, Brenner, and McShane, and the first meeting will be at 1:30 p.m. on
February 22 in the County Council Chambers.
Motion carried 5 -0 with Caskey- Schreiber and McShane absent,
Crawford suggested that the committee solicit input from everyone. There
will be many ideas on what should be done in the coming weeks. Take the first 20
to 30 minutes for staff to propose a structure for process. They need a procedure
on how to move forward.
Nelson stated one councilmember should work with staff to clarify an agenda.
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Fleetwood stated he will have time to do that.
Roll stated he is hearing certain themes, including land clearing and
stormwater. Pick one of those items as a topic for one meeting, and the other item
will be the topic of a later meeting. Then see if there are additional things to
consider.
Fleetwood stated the first meeting should establish basic procedures.
Dewey Desler, Deputy Administrator, stated the Council should prioritize the
items in the work plan, then submit the prioritization to the administration. Let the
committee then look at the results of that procedure. Staff would have a better
sense of where the Council wants to go. Administration can assign staff
accordingly. The prioritization will also give the community a sense of what the
Council wants to work on. In addition, let the administration know of anything that
isn't on the work plan. Councilmembers can do that prioritization on their own, not
in a meeting.
Hart stated the Council should add the critical areas ordinance and shoreline
master plan updates to the list. They will have a big impact.
Jeff Monsen, Public Works Director, stated the Council should also discuss the
desired outcomes to make sure action items actually lead to those outcomes.
Nelson stated they need to explore the stormwater issue at the first meeting.
Roy stated the first meeting should include a concrete, sequential discussion
about the priorities.
Fleetwood stated the first meeting should establish the scope and breadth of
the process and answer basic questions about what to do, what not to do, what will
justify lifting the moratorium, and what won't justify lifting the moratorium.
Crawford stated the councilmembers should list their objectives for an
outcome. Define what their targets are for lifting the moratorium.
Nelson stated his objective is to find out what is wrong with the current
regulation during the wet season. If they can fix it, he will be comfortable lifting
the moratorium.
Crawford stated the councilmembers should list their general ideas,
prioritization of the management plan, and what they want to accomplish by May 1.
(Clerk's Note: The committee took at break at 12:22 p.m. to 12 :36 p.m. for
a few minutes)
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3. SALMON RECOVERY
Relationship of Critical Areas Ordinance Update to WRIA 1 Salmon Recovery
Objectives
Bruce Roll, Assistant Director, stated the Council asked how these two things
are being coordinated and integrated as they go about the updates to the critical
areas ordinance and shoreline management plan. There is a draft critical areas
ordinance available for public review. A lot of the salmon recovery plan is used as
the best available science to support critical areas and shorelines.
Jeff Chalfant, Senior Planner, stated there are a variety of provisions in the
critical areas ordinance that are used as management tools to protect anadromous
fish.
John Thompson, Senior Planner, stated they are working on a recovery plan
for salmon in the water resource inventory area (WRIA) 1. There is greater
emphasis on the Endangered Species Act (ESA) listed species. The key deadlines
now to are to get the local chapter as done as they can and delivered to Shared
Strategy by April 30. Shared Strategy will review from the policy perspective, then
the technical team will review it. The County will submit a final draft by June 30.
The final draft will go through federal review. The final plan will be accepted by
December 30 that includes federal assurances.
The emphasis is on Chinook. As the technical work has been done, they
have identified key limitations. The result is eight key actions for the next ten
years to speed recovery of Chinook, including passage for Chinook, detailed
restoration plans for the entire river and three forks, integrate salmon recovery
objectives into the flood hazard management plan, evaluate instream flows,
supplemental program for south fork stock of spring Chinook, restoration and
protection priorities in the estuary and nearshore, and lowland riparian fish
enhancement and fish passage.
Brenner asked the number of culverts there are in total, and how many
they've fixed. Roll stated he will provide that information.
(Clerk's Note: End of tape two, side A.)
Thompson stated the County is fixing between six and ten culverts per year
through the road program. When the inventory is done, the staff can prioritize and
work it into County plans. For the private stuff, the County can begin finding
funding sources to start picking off the priority ones.
The last two key actions are the critical areas ordinance and shoreline master
program updates. Providing best available science background is key. Those plans
trade information with the salmon recovery plan.
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These aren't the only actions they need to do. There will be a larger package
of action items. With adaptive management, they will do iterations over the next
ten to 100 years. Each action individually isn't sufficient to restore fish generally
and salmon specifically. The symbiosis of all items will be effective. Today, talk
about how the critical areas ordinance supports this.
Article seven focuses on habitat conservation areas and buffers, but there
are a number of other sections.
Chalfant stated the question is what it means for recovery when the critical
areas ordinance is identified as a key action item. The critical area ordinance and
shoreline program are just a couple of tools for salmon recovery in the toolbox.
They are regulatory, therefore they are limited in what they can do. Incentive and
voluntary actions are also necessary.
The critical areas ordinance will help achieve no net loss of ecological
functions. They are striving for a net gain in ecological functions, but this is a
regulatory mechanism. A regulation must have proportional mitigation or
compensation for the impact. Regulation can't require more than no net loss. They
can't force people to do that.
Thompson stated that's part of the synergy between regulatory measures
and voluntary measures. Regulations are the base of the pyramid that hold up
other measures. They need to identify other tools for restoration.
Roy stated no net loss is a concept that applies to the whole county. She
asked how they measure that. In theory, the County could trade total development
of condominiums right on the beach at Point Roberts for an absolute development
ban or total restoration on a beach in Birch Bay. Chalfant stated there has to be a
level of certainty that they will actually achieve no net loss. They design
regulations that are conservative, such as planning for a buffer. There is to be a
certain amount of uncertainty of effectiveness related to these actions.
Roll stated the question is if the monitoring strategy aligns with what they
are trying to achieve. It's hard to demonstrate no net loss, but monitoring
programs should give them insight on whether or not something is working. He's
frustrated they don't have those monitoring programs.
Chalfant stated they don't have programs to fully answer those questions,
but they have tools that will help them get there. They need to look at the
ecological processes countywide, inventory them, characterize them, and create a
baseline for future critical areas ordinances and shoreline programs.
Roy asked if the objective is to protect the natural resource. They keep
hearing that seabirds are declining at a tremendous rate in Puget Sound. She
hopes that is measured locally, and if protecting natural species is the reason the
County is doing all this. Chalfant stated that is one of the objectives. Keep in mind
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that there could be a trend in declining populations as a result of things that
happened a long time ago and that aren't associated with what they are doing
today. Regulations are designed to achieve no net loss from here on out. Think
about how to retrofit certain developments and how to inspire people to use
retrofits.
Brenner asked if the no net loss concept is on specific properties, or with a
trade within the sub - basin. Chalfant stated that if one develops a piece of property,
there are provisions to allow for mitigations off -site in the same sub -basin or to a
larger mitigation bank without impacting that area.
Roy stated that is just with wetlands. No net loss also has to do with
shoreline protection.
Chalfant stated mitigation banking isn't limited to wetlands. They will
consider it for habitat mitigation banking as well. Mitigation banking is just another
tool that needs to be used wisely.
Roll stated mitigation banking is one funding source that is not being used to
its fullest capacity. Staff can bring that concept up for future discussions.
Chalfant stated there is a variety of ways a critical areas ordinance help
achieve no net loss, including buffers, channel migration zones, maintaining natural
process, directing development outside of certain areas, protecting wetlands and
habitats, and preserving hydrologic functions for water quality and quantity. The
farm program is an example program. There is an opportunity to reallocate
resources from one area to a better area.
Nelson asked about enhanced wetlands and their impacts. Many people build
their own ponds and may stock them with fish. He asked if that puts someone's
property in jeopardy of being restricted. Chalfant stated in most instances, a koi
pond would not be regulated under the critical areas ordinance. However,
enhancing an existing wetland by creating a pond may be subject to the critical
areas ordinance. There is a provision to allow flexibility to folks who are willing to
do voluntary actions.
Nelson asked what the ordinance does to encourage enhancements and
mitigation for other uses of a property. He asked if there is a way to reward
people. There isn't a step in the ordinance that explores that option. Chalfant
stated he agrees they need to work on developing those incentives, but it is an
effort separate from the critical areas ordinance.
Nelson stated they are not doing positive things to help people enhance their
property. He asked how they are measuring "no adverse impact" to critical fish
and wildlife habitat areas and associated wetlands. Chalfant stated science says
certain kinds of buffers are needed to maintain a variety of functions.
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Nelson stated that's not what the language says. Reword that language.
Chalfant stated they don't want to limit someone to a buffer as is. Have flexibility
to approve something that is out of the box.
Nelson stated all they need to say is that a dock development will protect
against damage. Chalfant stated this section is for construction, maintenance,
repair, and reconstruction of docks.
Roy stated that the creation of a dock is a net loss, with or without a permit.
Chalfant stated there are ways to mitigate those impacts, but those methods are
not the same for every site.
The critical areas ordinance will go to the Planning Commission on March 24.
Hopefully it will get to the Council in April or May.
Nelson asked if the County would still allow hard bank armoring, as they've
allowed in the past. Chalfant stated it is allowed if a structure is threatened.
Nelson stated the County allowed hard bank armoring to protect farmland,
not structures, because the County wants to protect farmland. Chalfant stated
there are ways to protect farmland that don't require riprap. Permitting and
regulatory framework has completely changed from four years ago. Hard bank
armor would be allowed in the larger context of flood protection or to protect a
community. Rip rap on the banks is no longer allowed to protect farmland. The
staff is trying to be consistent with what the State Department of Fish and Wildlife
will tell people.
Brenner referenced Council packet page 25, item D(1)(a)(i). She asked if
something like that could be construed to apply to starlings. She asked if it applies
to indigenous species. Chalfant stated it doesn't have to apply to indigenous
species. If a species provides an economic or cultural benefit, it can be considered.
This has to go before the County Council with a public hearing for this to be a
successful nomination.
Roy asked if there is a list somewhere of subspecies unique to the area, and
if that is a consideration. Chalfant stated it is a consideration. The Council has a
lot of freedom to consider that. The ordinance can specifically state it if the Council
wants.
Brenner asked who the technical administrator is. Chalfant stated it is
whoever is appointed by the director. For example, Petur Sim does wetlands and
wildlife habitat, Doug Goldthorp does geologically hazardous areas, and Paula
Cooper does flood areas.
Nelson referenced Council packet page 28, item D(3). He asked how they
interpret what is necessary and what should be made impervious.
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Hal Hart, Planning and Development Services Director, stated it's a function
of minimizing land disturbance through the site plan.
Chalfant stated this is associated with agricultural use.
Brenner stated a lot of things in the plan will be subjective.
OTHER BUSINESS
Roll stated he has an update on the Foothills landfill on the Nooksack River.
He met with the Nooksack Business Council and Bureau of Indian Affairs (BIA). The
Tribe is going to work with the owner to remove a lot of stuff. They are actively
working on it. The immediate thing is to pull back the solid waste from the banks.
The BIA has come forward with some money to help make it happen. A problem is
that the property is an individual allotment, so it doesn't technically belong to the
Nooksack Tribe and there are 70 named heirs who are owners of the property. An
easement has been granted to allow them to get on the property, which is the good
thing. Any action would require notification of 70 people. It's not an easy task.
Brenner stated the Nooksack Tribe should be able to contact the people after
they've gone in and done something to the property. Roll stated he believes that is
what the Tribe is going to do.
ADJOURN
The meeting adjourned at 1:15 p.m.
Jill Nixon, Minutes Transcription
The Council approved these minutes on March 15 , 2005.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Laurie Caskey- Schreiber, Council Chair
Water Resources Work Session, 2/15/2005, Page 19