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HomeMy WebLinkAboutNatural Resources September 24 20021 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. WHATCOM COUNTY COUNCIL Natural Resources Committee September 24, 2002 The meeting was called to order at 9:30 a.m. by Committee Chair Sharon Roy in the Council Chambers, 311 Grand Avenue, Bellingham, Washington, Present: Seth Fleetwood Dan McShane Also Present: L. Ward Nelson Laurie Caskey- Schreiber Sam Crawford COMMITTEE DISCUSSION Absent: None 1. MARINE RESOURCES COMMITTEE TO PRESENT AN OVERVIEW OF ITS FUNCTION AND ACTIVITIES (AB2002 -340) Bruce Roll, Water Resources Division Manager, stated marine resources is an emergent field that is growing quickly. Today's presentation is on the Marine Resources Committee (MRC) and how the Water Resources Division relates to these activities. As they begin to work on marine recovery and protection, the Water Resource Division becomes involved. The different pieces and players are beginning to connect. The MRC first convened three years ago. The community desired to deal with the issues brought forward by the Northwest Straits Commission. The MRC has evolved into a self- supporting, community- driven program. The Water Resources Division provides certain key services to the MRC, including facilities and staff for the MRC. The MRC has acquired a lot of money from grants. That money is being distributed through the Water Resources Division on behalf of the MRC. Water Resources Division staff also has begun to gather the information that the MRC needs to be effective. Amy Stillings and Erika Stroebel have spent a lot of time helping the MRC understand the issues and provide information. Erika Stroebel, Resources Planner, stated marine resources are an important item that the Water Resources Division is beginning to work on. Marine resources are important to this community for many reasons. Many industries depend on Natural Resources Committee, 9/24/2002, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. marine resources. There is a recreational element to marine resources. The scenic beauty of the community is a big draw for people. There are three committees that the Water Resources Division works with on marine issues. The most recent committee is the MRC, which was formed in 1999 through a County Council ordinance. The MRC program comes from a federal initiative. There are also two shellfish protection districts with advisory committees, which were formed in 1998 and 1995. Amy Kramm, Marine Resources Committee, stated that throughout the Northwest Straits there is a Northwest Straits Conservation initiative, of which Whatcom County is a part. The MRC is a regional county -based effort to protect the Northwest Straits. This area is home to over 220 species of fish and 26 marine animals, many birds, and invertebrates. As more people are attracted to this area, there is an increase in the detrimental impacts to the marine environment. Over - fishing also has a major impact. Pollution comes from many sources. Multiuse conflicts arise and require efforts toward equitable and responsible use of the marine resources. The marine life is threatened and the ecosystem is stressed. Salmon and many marine species are at risk. The harbor seal is the only animal on the rise in this area. All others are declining. There are 18 known stocks of herring in Puget Sound, and seven are considered unhealthy. The stock at Cherry point has declined 92 percent since 1973. A hearing summit brought together professionals to look at those issues. Shellfish are a good indicator of marine water quality. In the Northwest Straits, shellfish beds are threatened. Areas of Portage Bay and all of Drayton Harbor are prohibited from shellfish harvesting. Eelgrass and kelp forests are degrading. In the mid- 1990's, local efforts were making a difference. Grass roots efforts inspired elected officials to sponsor the Northwest Straits Initiative to protect and restore vital marine resources through a citizen -based approach. The initiative outlines eight benchmarks that must be obtained if the Northwest Straits Commission is to be reauthorized in 2004. The benchmarks will be difficult to obtain. The benchmarks include: 1. Broad county participation in the MRC's. That is happening. 2. Creation of a regional system of marine protected areas. 3. Having a net gain in high value habitat. It is a benchmark that this MRC is taking seriously. 4. Measurable increases in factors of bottom fish recovery. 5. An increase in key marine indicators. 6. A net reduction of shellfish areas closed from pollution. 7. Coordination of scientific data. 8. Public education and outreach. The local MRC includes many different interest groups and stakeholders. This broad base enables them to tackle issues up front and to find out what the opposition might be from certain groups. They are trying to complement regional efforts of the Puget Sound Water Quality Action Team, tribal co- managers, Natural Resources Committee, 9/24/2002, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Washington State Department of Fish and Wildlife (WDFW), Department of Natural Resources (DNR), and Department of Ecology (DOE). The MRC has also tried to work with other local groups. Last year, the MRC held its first annual marine summit, which is to get together with local groups to see what they think the MRC should be doing. Through participation in the Northwest Straits Commission, the Whatcom County MRC brings increased federal funding for local projects. The approach of the MRC is based on local community action. They use volunteers in all projects. The beach inventory is an excellent way for the community to get involved. The mission of the Whatcom County MRC is revitalizing and preserving Whatcom County marine resources for future generations. There are several current projects and future planned projects. One of the MRC's primary roles is as a warehouse of accessible marine data. The MRC conducted a shoreline inventory and training with local citizens who can conduct the shoreline inventory. They also have data from the Port of Bellingham to build on their habitat assessment work. The MRC produced the "Marine Resources of Whatcom County." The forage fish project is a multi- county project that started in Island County. It is a partnership with WDFW and Skagit, Snohomish, and Whatcom Counties. They are also trying to restore habitat for forage fish spawning grounds, including the creosote log removal project. Bottom fish is another project they are working on. The bottom fish project identifies important current and historical bottom fish habitat. They will survey fishers and divers for anecdotal information. They will also provide community outreach, fact sheets, and an open house. A marine summit on November 1 will provide details on the projects they are working on. The MRC coordinates the near shore portion of the salmon summit. The MRC will have speakers on various topics, have open houses, maintain its website, distribute fact sheets and brochures, and will partner with many other groups. One of the most important roles of the MRC is to be an educational resource for the County Council. The MRC is in the process of submitting a letter of intent for the next round of grants. This year it received $70,000. The MRC plans to ask for money to continue the forest fish program, shellfish connections, and the bottom fish project. Depletion of marine resources has harmed economies and communities around the Northwest Straits. The Whatcom County MRC goal is to limit any additional degradation of their marine environment, and to protect and enhance the high -value marine resources that make Whatcom County such a wonderful place to Natural Resources Committee, 9/24/2002, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. live. Only through a combination of citizen - driven efforts and agency involvement will the protection of marine resources be assured. Nelson asked if the statement about overfishing is based on facts attributable to a source, or an overall view that there are fewer fish. Kramm stated the MRC has been working with WDFW and the tribes to limit fishing in certain areas that they felt have been over - fished. The WDFW and tribes regulate the amount of fish that is taken. The entire marine resources committee idea got started in San Juan County, which felt that its rockfish were being depleted according to scientific information. Studies show that rockfish can easily be overfished. San Juan County is currently doing a study to look at areas that are not being fished and comparing them with areas that are being fished to see if that model is working. They are continuing to look at that. Nelson asked if it is commercial or recreational overfishing. Kramm stated they are looking at different issues. Nelson asked if the information on the marine data is available on the web page. Stroebel stated it is. McShane stated recently he received a memo from DOE regarding the boatyard general national pollution discharge elimination system (NPDES) permit. He asked if the MRC or Northwest Straits Commission is looking at that general permit. Kramm stated they have not done any reviews as a MRC. However, a MRC member belongs to an organization that reviews permits. McShane stated the DOE is seeking people to participate. Kramm stated the MRC could consider looking into it if the County Council requests. McShane stated it isn't anything the County Council has a say on, but there are severe local impacts. The last time the boatyards had a permit review, people who had boatyards dominated the issue. He was struck by the lack of involvement from resource folks. Kramm stated she would check with resource groups to see if they are looking at it. Fleetwood asked what people are speculating as the likely cause for the decline in eelgrass and kelp forests. Kramm stated she would gather information on it. Another MRC in Island County is doing a major project on eelgrass. Fleetwood asked if pollution is generally from land use or boating and shipping in the San Juans. He asked who would have jurisdiction over that. Kramm stated a variety of different agencies have jurisdiction. Regarding pollution point sources, boatyards and other industrial facilities are required to abide by NPDES permits. One big problem is that there isn't a lot of attention paid by the resource groups or adequate funds to review those permits by anyone other than the industry. Often the permits can get approved without dealing with issues that Natural Resources Committee, 9/24/2002, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 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. need to be dealt with. A watchdog group would help decrease the point source pollution issues. Stormwater runoff is a major pollutant. It is difficult to pinpoint where pollution is coming from. The DOE has jurisdiction over much of that pollution in terms of water quality. Fleetwood asked if other MRC's are perceived to be better than others. Kramm stated there are. The San Juan County MRC is light -years ahead of the others since it started before the entire Northwest Straits Conservation Initiative. They don't have a lot of competing industries. It is an area that has 95 percent compliance. The San Juan County MRC is able to attract local businesses to their projects. The Island County MRC is also in the lead. They were able to get a grant to hire an executive director. That has enabled them to do a number of projects. They've been successful in getting Salmon Recovery Funding (SRF) Board money. They are one of the primary reasons the Whatcom County is going to be involved in the forage fish project. Different counties are known for different things. Nelson asked if there is any information about the economic impacts to the local marine resources. He asked the percentage of the total Whatcom County economy that marine resources represents. Kramm stated she didn't know of specific data. Stroebel stated they have committee members that represent the different economic interests. That is one indicator of the value that comes to the community from marine resources. The MRC also did a survey this year of landowners with shoreline properties. In the survey, the landowners were asked a number of questions to determine their interests in marine issues. That is another indicator that helps the MRC get a sense of what the community is looking for in marine resources issues. Nelson stated it would be helpful to know the economic impact of maintaining a healthy habitat for the bottom fish and feeder fish. One of the things Whatcom County lacks is how they coordinate their recreational use. There is no comprehensive plan to deal with the growing environmental impacts of recreational use. There will be a tremendous increase in recreational uses that people will want to take advantage of. Roy stated she read an article about a national group that is looking at oceans nationwide. People who are not environmentalists are saying they are in trouble due to several factors, including overfishing. Another point made was the need to look at the effect of aquaculture. She asked about the relationship between projects on Ten Mile Creek and Marine Resources. Ami Stillings, Resources Planner - Shellfish, stated she would address that question in her presentation. Whatcom County has two shellfish protection Natural Resources Committee, 9/24/2002, Page 5 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. districts, Portage Bay and Drayton Harbor. She provided background on the creation of the districts. (Clerk's Note: End of tape one, side A.) Stillings continued to state that water quality in Portage Bay has been so good recently that the Department of Ecology has increased their sampling to twice per month. They hope to see good enough numbers that they could consider opening Portage Bay to shellfish harvesting. The bad news is that there was a setback in August, during which they got high counts throughout the bay. There was no rain, so it was not due to runoff. In July, three of the four sites in the restricted area met the standard. After the August event, sites three of the four no longer meet the standard. They are trying to figure out how to track this problem. They are hoping to determine the source and convince the State Department of Health (DOH) to remove those numbers from the data set. Water quality looked good in Drayton Harbor overall, but not as consistently good as in Portage Bay. As of July, site six now meets the standard. Three out of the six sites are meeting the standard. Site four is looking better. It should also meet the standard by December. Site eight is a problem. It has consistent high fecal counts, indicating a problem. The DOH said they need to determine what that source is. Now, they are working with the Port of Bellingham to address issues around site eight, which is next to the Blaine Marina. There are a number of community projects happening, including the oyster community farm, the stream teams, and Tenmile Creek community project. It gets people involved and also educates the public on how their actions affect water quality. They are developing a dye test along Marine Drive in Blaine. It will test the main sewer line in the city and the sewer lines in the Port of Bellingham marina. There have been some small circulation studies being done in Drayton Harbor. They are also working with a group to develop a circulation study that takes into account Semiahmoo Bay, Drayton Harbor, and some tributaries. Geoff Menzies, Drayton Harbor Shellfish Protection District Advisory Committee Chair, stated he has pursued partnerships through his involvement with the Puget Sound Restoration Fund. The community oyster farm is a community based venture to restore shellfish harvesting opportunities in Drayton Harbor. Many groups are participating. The project goal is to reopen the harbor to shellfish harvesting. The focus is to create a timeline for restoring shellfish harvesting for everyone in the community. He provided information in the past on the value of the recreational shellfish harvesting in the county. Natural Resources Committee, 9/24/2002, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. They started this project and got permission from DNR and DOH to plant oyster seeds in prohibited ground. The DNR and DOH believed in the need for this project to build community support. They recently had support from the Whatcom Community Foundation with a small grant. The Puget Sound Restoration Fund received other small grants and from a variety of foundations. A couple of years ago, the Drayton Harbor Shellfish Protection District Advisory Committee lobbied the County Council for money to support its effort. There was a $30,000 line item for special projects. This past winter, the Puget Sound Restoration Fund submitted a proposal to the County for about half of that money. He would talk about what they are doing with those County funds to help partner within Drayton Harbor. That grant program supports the quarterly farming activities for the oyster farm; continued urban stormwater sampling of six priority drains along the Blaine shoreline; a series of tide flat tours; and the shellfish protection district open house. They are focusing on Blaine harbor improvements. They also want to do storm event sampling in the harbor. When they get a sustained rain event, they want to see what happens with the water quality over a five -day period at stations four, six, and eight. As part of the community oyster farm support, there is a core group of 15 volunteers who are from White Rock, Blaine, and Bellingham. They took a tour of the Blau Oyster operation. The volunteers have done a lot of work, but they haven't see a viable shellfish and oyster farming operation. It was an eye- opener to get them to Samish Bay. This area has never experienced a major downgrade. There are significant differences. Samish Bay doesn't have a public sewer, has better circulation, and is not limited by a small entrance to the bay. McShane asked if a limited entrance can be positive in terms of water temperature. Menzies stated that when the tide comes in, the beds are replenished with pure water. They really see the current dramatically in Drayton Harbor. The advantage of Drayton Harbor is that it's very protected from the weather. From a water quality standpoint, he would rather have a nice, big, open bay with the right exposure. Samish Bay doesn't have any marinas or the urban level of development that Drayton Harbor has. Many government and committee officials attended the trip. The trip was made possible through the support of the County. Through this grant with the County, they are continuing the shoreline sampling program. It will result in two years' worth of data. They hope to determine what the tolerable amount of fecal coliform loading and concentration from stormwater pipes will be. They don't have standards for fecal coliform levels in stormwater. They are now focusing on sampling sites one through six, at the mouth of Dakota Creek. They are also doing upstream samples. It has helped to build a partnership with the County's pledge program. Natural Resources Committee, 9/24/2002, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. The sources that affect the Blaine harbor include recreational and commercial boaters, the sewer collection system, stormwater runoff, a fish processor's outfall, and wildlife. As part of the county program, he provided information on the problems with the marina to the Port of Bellingham staff. The fecal levels are extremely high in the marina. The DOH is telling the advisory committee that it will be difficult to get an upgrade if they can't identify the sources of the fecal coliform in the marina. There are 40 live - aboards at the marina right now. The Port of Bellingham is in the process if updating their live- aboard moorage agreements so the live- aboards can't discharge gray water. The showers at the marina are only at the main gate. They have also reviewed and updated the marina's visitor moorage envelope to let people know that it's a zero discharge marina. Port of Bellingham staff at the marina has inspected 15 of the 40 live- aboards. Nelson asked why the County Health Department is not involved in that inspection, since this is a health issue. Menzies stated the Port supervises that facility, however it's a good question. Nelson stated the County Health Department should be involved in assisting the Port on this issue. It is a conflict of interest for the Port because it has a financial interest in maintaining those leases. He is interested in the Council directing the Health Department to work with the Port of Bellingham to evaluate sewage and septic problems associated with live- aboards in the county. The County Council can also begin to work with the Health Department on drafting policies on this issue, as well as the cumulative effect of discharge from industries, particularly into sensitive areas. McShane asked who owns the ground underneath the Port facilities. Menzies stated he's not sure. Some of it is owned by the City and leased by the Port. It probably varies depending on the facility. The Port owns a lot of the tide flats around the marina and to the south of the marina. McShane suggested that they get the County Health Department in committee to talk about policies that they have for live- aboards on boats in general. Nelson stated the Public Health Advisory Board can work on this issue and make an overall recommendation of policies. He's still concerned about discharges from industrial areas. McShane stated they should have a discussion with the County Health Department first. That will probably lead to an investigation and recommendations from the Public Health Advisory Board. Roy asked if Semiahmoo marina is putting out the numbers that the Blaine harbor is. Menzies stated the number of live- aboards is less. Semiahmoo doesn't have the fecal coliform concentrations. That may be due to the fact that they don't have a lot of things impacting it, and it has better circulation. Natural Resources Committee, 9/24/2002, Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Caskey- Schreiber asked if the Drayton Harbor Shellfish Advisory Committee and the MRC are involved in Hal Hart's joint board discussing seasonal clearing. Menzies stated a representative from the Shellfish Advisory Committee is designated to work with them on that issue. Kramm stated the MRC is not involved at this point. Roy stated one of the issues is water quality, which is one of the reasons they are talking about seasonal limitations. It might be a good idea to have that question looked at more broadly through the MRC. Hal Hart, Planning and Development Services Director, stated they are focusing on Lake Whatcom to begin with. Roy stated she would set up a discussion with the Health Department. Menzies stated he would like to attend, and there should also be a Port representative. Through this program, they've also installed signs for pump -out stations so they are clearly identified. He also provided information to the Port staff regarding the Port's commercial tenants. The main focus was to talk about a use agreement that the Port proposed. It had language in it that talked about the fact that this is a sensitive area. The Port wanted the processors and buyers to send this out to all the fishermen they work with and have the fishermen sign it. The processors and buyers resisted that idea. The processors have an NPDES permit that has recently been updated. The process is required to disinfect for fecal coliform. They haven't gotten to that stage yet, but they feel that a lot of the problems are generated around the facility, not in the facility. One big issue is rodent control. The Port is responsible for rodent control. Another issue that came up is what "zero discharge" actually means. They talked about the potential loss of business if the fishermen were asked to sign these agreements. Another thing they learned was that the processors' wastewater flow is actually ten times what has been reported over the past two or three years. The meters have been read incorrectly. That has a significant impact. There will be five signs in the commercial part of the marina indicating that the marina is a zero discharge marina. Three signs will also be placed in the harbor on pilings for visiting boaters. They are working with the City of Blaine on the dye test of the sewage system on Marine Drive. They need to document that those lines aren't leaking and causing problems in the commercial part of the marina. Natural Resources Committee, 9/24/2002, Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. They are also doing circulation studies within and outside of the marina. They need to learn more about how surface water moves through this system. So far, they've never had a float leave the marina on either an ebb tide or flood tide. The studies document that the surface water tends to go up and down. Only a small percentage of the water leaves. Caskey- Schreiber asked if the oysters from the oyster farm would become poisonous if a pollution event happens. Menzies stated a known event would cause a week to two -week closure. Oysters can purge themselves of those bacteria within a week or two. Stillings stated there has been a lot of talk lately about marine resource issues. The Water Resources Division can help look at these issues comprehensively and work with various groups to integrate and coordinate the efforts going on out there. It is important to use the MRC and shellfish districts as a resource for the County Council when marine resources issues come up. The Water Resources Division staff would like the councilmembers to attend a tour of the area. (Clerk's Note: End of tape one, side B.) 2. DISCUSSION REGARDING WHATCOM LAND TRUST'S PARTICIPATION IN THE WHATCOM COUNTY AGRICULTURAL PURCHASE OF DEVELOPMENT RIGHTS PROGRAM (AB2002 -343) Kraig Olason, Senior Planner, stated this is a follow up to a discussion held two weeks ago about the purchase of development rights (PDR) guidelines document. He provided a handout of the amended target area map and the proposed conservation easement. The Whatcom Land Trust can work with the County to develop a process for negotiation and tracking of conservation easements. The ongoing monitoring is a critical and long -term commitment that needs to be made with any conservation easement. The Land Trust has had a long interest in agriculture. It is an available resource. He is glad that the Whatcom Land Trust is interested in participating. Rand Jack, Whatcom County Land Trust, stated he is available to answer questions. The Land Trust wrestled with the decision to participate. It is a new area for them. He wanted to be careful that it did not jeopardize the Land Trust's commitment and long -term relationship with the County. He provided a history of the Land Trust. The Land Trust has not been successful in protecting farmland in Whatcom County for several reasons, including the economics of agriculture in Whatcom County and the rest of the country. The Land Trust did not have the resources to purchase conservation easements. It tried to set up other incentives to give farmers opportunities to contribute conservation easements because of their desire to protect farmland. The economics were not there to support that kind of act by the farmers. When the PDR Committee was formed, the County Executive Natural Resources Committee, 9/24/2002, Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. asked the Land Trust to participate. He helped structure the program. It would be difficult for the County to come up with the money to administer the program unless there was some kind of device established through the Conservation Futures fund, which can only be used to acquire, not manage, property. The Land Trust met with County staff to talk about a funding scheme that would pass muster legally. The Land Trust would charge a fee based on the value of the easement. Most of the fee goes into a fund to monitor and enforce the easement. The nature of this transaction is such that it includes long -term commitments for monitoring and enforcement. The proposal is reflected in the contract. The proposal says they will only participate if they can agree on the conservation easement. That is critical for the Land Trust to participate. The Land Trust doesn't want to make subjective judgments on what the farmers can and cannot do with their lands. Draft the conservation easement so the farmers make those decisions. The Land Trust proposes to become partners with the County to negotiate, monitor, and enforce the easement. The Land Trust wants to do the things that it has experience doing. The Land Trust wants to stay away from the political aspect. Other conservation easements often have long definitions of what farming is. This conservation easement opted for a broad definition of farming to be anything that raises food or fiber. The only exception to that in the conservation easement is that the easement sees soil as a resource. The real resource of farming is the soil, which should be protected. Caskey- Schreiber asked how they derived the compensation fee schedule. Jack stated they made it up. They contacted the people who know most about these things, and asked for models of this type of partnership, but there wasn't an adequate model. Normally, the Land Trust doesn't charge a fee for entering into a conservation easement. They looked at what they thought their cost would be. Most of the money goes into a fund dedicated to monitoring and enforcement of the conservation easement. If they quit doing that, the fund would go back to the County. They tried to figure out the potential cost and future cost. This is a business transaction. The farmer is being paid to give up a right. The public has a right to have that right monitored and enforced. On the other hand, the farmer is going to intentionally continue to use the land for the production of food and fiber. Therefore, the Land Trust expects much more tension around these conservation easements because the land will continue to be used in an intense, economically driven way. It's more likely that there will be disagreement, at least during the first generation. Accountants and attorneys have reviewed the easement language. These figures may be adjusted up or down once the Land Trust has some experience with this. Olason stated that when all parties sign the conservation easement, the Land Trust would be listed in the conservation easement as the responsible party for the easement. The Land Trust is specifically listed in the easement because it will be held responsible, and it needs the authority tied into the contract to impose enforcement, if necessary. Natural Resources Committee, 9/24/2002, Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Fleetwood asked if the fees would go into a fund that collects enough interest to sustain long -term enforcement. Jack stated the Land Trust has a fund set aside currently for all conservation easements. That fund will not be mingled with this fund. The Land Trust will set up a separate fund for this. Three - fourths of this fee will go into the fund. It will be a dedicated fund that will only be used for the purpose of monitoring and enforcement of these easements. The people on the Land Trust board are worried about what would happen if there are three lawsuits in the first year. If that happens, the Land Trust is in serious trouble. The idea is to build the fund up over time. The Land Trust will do this only if it is a signatory on the conservation easement. Farmers have to perceive that the Land Trust is an honest partner. A three -step process is built in for negotiation of any problems that may come up between farmers and the Land Trust. Fleetwood asked if the past easements are a poor predictor on what could happen with the PDR easements. Jack stated it is a marginal predictor. They are very different. They try to be very careful. This is the best information they have now about how to guard against problems that may occur in the future. Roy stated councilmember Brenner is concerned about how the Land Trust determined its formula. Councilmember Brenner asked why the Land Charge would charge more if the piece of land is costlier, rather than have a flat fee. Jack stated it is not driven by the size of the land, but the development pressures on the land. The more development pressure on the land and larger the land area, the more complex and time consuming the monitoring process is. The more money that is at stake, the more likely that people are going to have fights about it later. There is likely to be more tension. Olason stated they are going to have a minimum fee of $3,000 or a six percent fee on the first $150,000. After that, the fee would drop to a four percent fee. In a sense, it gets less expensive as the value gets higher. Fleetwood asked how they can infer that there would be more monitoring costs simply from the increasing value of the conservation easement. One of the monitoring duties is to simply drive by property to see if there is development on it. He asked if that is correct. Jack stated it is a simplification. They would do a photo essay on the place to establish a baseline. They would make a map of where the photos were taken and sit down with the farmer, who signs off on it. When the Land Trust monitors the easement, the Land Trust has to make an appointment with the farmer to walk around the place and talk about what's going on. They would compare with the baseline essay to see if things look the same as the baseline photos. Then the Land Trust staff has to write a report. Fleetwood asked how that workload increases according to the value of the easement. Jack stated that if there is a bigger property there is more work to it. The main concern is the potential enforcement problems, which is closely tied to value. That could involve lawyers. The risk of enforcement drives the fee. Natural Resources Committee, 9/24/2002, Page 12 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. 1 2 Olason stated some of the studies show that enforcement costs for a typical 3 lawsuit is $40,000 to $50,000. The fee goes into a pool to pay for that risk. 4 5 Jack stated the King County cost for monitoring alone is $75,000 per year. 6 7 McShane stated the Land Trust has already had the debate on the cost. It's 8 a one -year contract. They can look at this again in a year. He understands the 9 work that would go into developing that initial document on each property. It takes 10 a lot of time to put that stuff together. They also have to consider that the Land it Trust is taking some risk. Jack stated the Land Trust is also doing the negotiating 12 for the easements. The time put into that would match the first five or six years of 13 monitoring. In the beginning, these things are going to take time. 14 15 McShane stated they are fortunate to have an organization that is willing to 16 do this. Otherwise, he wouldn't know how to do a PDR program in- house. He 17 moved to recommend approval of the contract, easement, and Appendix B. 18 19 Nelson stated the County is taking on a role, and the grantees are identified 20 as the County and Land Trust, as the lead. He has a couple of issues if this goes 21 into perpetuity. He asked if it has to go to a court, or if the County can change the 22 easement if the grantor decides that the land doesn't serve its purpose as 23 agricultural land any longer. Jack stated they would have to go to court. 24 25 Nelson stated the County would bear a double cost, the cost of going to court 26 and the cost of the easement purchase. That doesn't make sense. Jack stated it 27 does in the sense that the County has entered into a contract with someone and 28 paid money for it. It would be an attempt to nullify the contract. Once the County 29 has signed a contract, then it becomes a legal question of whether or not the 30 reason for contract continues to be fulfilled. Whether or not they enter into the 31 contract is a political decision. It becomes a question for a court to say whether or 32 not the contract still meets the requirement of the easement. The Land Trust will 33 be uncomfortable if the easement was subject to political pressure where the 34 person has been paid for the value of that easement. 35 36 Nelson stated the issue is not the value. The value comes back as a 37 payment to the County. The issue is still a political issue. They are taking power 38 away from the legislative body for the political reason. Olason stated it is a 39 freeholder's opportunity to decide what is done with his or her property. It is 40 outside of the political realm. If someone owns land, the rights include the right to 41 sell or give a part of it for something that is important. That is outside of the 42 political realm. Even if the land is on the edge of development and would make a 43 nice shopping center, the land is still unavailable through a non - political action by 44 the landowner, with an established conservation organization. It is an interesting 45 question, but it is tied more to property rights than to a political process. 46 Natural Resources Committee, 9/24/2002, Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Nelson stated that as a grantee and protector of the County taxpayer, they are taking the power away from the people and putting it into the court system. Roy asked if Councilmember Nelson believes the County should unilaterally retain the right to break a contract without going to a court. Nelson stated the County should retain that power on land use decisions. Roy stated that is the heart of the whole program. Nelson stated it is political. They are taking the power away from the public. Roy stated the County has the right to go to court. (Clerk's Note: End of tape two, side A.) McShane stated the decision is how to protect farmland. This is one approach. Another approach is to maintain authority and hope that future councils do similar things, such as taking away those rights through zoning changes. This Council has an opportunity to keep agriculture viable by allowing farmers to sell their development rights. Farmers and County government enter into these agreements voluntarily. They shouldn't enter into the contract if they think it is not good for the long -term future. That's why the Council needs to consider each easement carefully. Nelson asked how the easement is amended if the Whatcom Land Trust no longer exists. Jack stated easements continue to exist in the name of Whatcom County or any designee of the County. The Land Trust would assign its rights as a co- grantee back to the County or another organization designated by the County. Nelson asked who identifies another agency. Jack stated the County identifies another designated organization. Olason stated the scope of the work is part of the contract with the Land Trust. That language about changing agencies is not in the conservation easement. Jack stated the Land Trust doesn't have any problem making that point more explicit in the conservation easement. McShane stated he recommends some language in section 13, item C of the conservation easement about transferring the rights from the Land Trust to another agency. He would like to see some language by tonight. Nelson stated trouble may start coming in years down the road, with secondary buyers. He asked who is liable if the property owner sues. He doesn't recall anything in the easement that conveys the risk to the Land Trust. Jack stated that the Land Trust has the same risk that the County does. Natural Resources Committee, 9/24/2002, Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Nelson asked if the Land Trust is bonded to assume that risk. Jack stated they are not. Nelson stated that all the Land Trust depends on is the fee that it collects. Jack stated that is correct. Nelson asked the ramification of litigation. Olason stated a study talked about $30,000 to $40,000 being the average cost of each litigation. It was a survey of conservation organizations. Jack stated normally the organization enforcing the conservation easement would take legal action rather than the landowner. Nelson asked if the grantor would not be likely to sue on the grounds that he could not sell the property as commercial. Jack stated it's possible. According to the history of these things, it's not likely. Nelson asked the liability the County would incur if the grantees were sued. Jack stated the question would become to what extent the County participated in the enforcement. It's set up to encourage collective action. If the County didn't take action that jeopardizes the action, it doesn't sound like it would be responsible. Olason stated Karen Frakes, the County's legal counsel, reviewed this contract and conservation easement. Motion to recommend approval carried unanimously. 3. ORDINANCE AMENDING THE RESOURCE LANDS CHAPTER OF THE WHATCOM COUNTY COMPREHENSIVE PLAN (AB2002 -084T) Roy stated this item would be held in committee for two weeks. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 12:03 p.m. Jill Nixon, Minutes Transcription Natural Resources Committee, 9/24/2002, Page 15 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. 1 2 ATTEST: WHATCOM COUNTY COUNCIL 3 WHATCOM COUNTY, WASHINGTON 4 5 6 7 8 Dana Brown - Davis, Council Clerk Sharon Roy, Committee Chair Natural Resources Committee, 9/24/2002, Page 16