HomeMy WebLinkAboutPlanning April 23 20021
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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
Planning and Development Committee
April 23, 2002
The meeting was called to order at 3:05 p.m. by Committee Chair Dan
McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington,
Present: Absent:
Seth Fleetwood None
Laurie Caskey- Schreiber
Also Present:
Sharon Roy
L. Ward Nelson
Barbara Brenner
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. RESOLUTION INITIATING A ZONING TEXT AMENDMENT TO INCLUDE
BEST AVAILABLE CONTROL TECHNOLOGY FOR NOISE AND ODOR
EMISSIONS AS AN ADDITIONAL CONDITIONAL USE CRITERIA
(AB2002 -165)
Caskey- Schreiber stated she wanted to withdraw this resolution.
2. REQUEST TO AMEND WHATCOM COUNTY CODE, TITLE 20, TO EXEMPT
PARCELS WITHIN THE DRAYTON HARBOR STORMWATER SPECIAL
DISTRICT FROM ON -SITE STORMWATER DETENTION AND
INFILTRATION REQUIREMENTS (AB2002 -174)
Bruce Mills, Assistant Director of Engineering, stated they are trying to say
that conditions at Drayton Harbor are different. They propose three areas in
Drayton Harbor that would fall under the stormwater special district. The first area
includes all the areas zoned urban residential, four units per acre (UR -4). The
second area has to do with any areas that contain streams, shorelines, or wetland
areas and that would drain within 200 feet of these bodies.
McShane asked about the history of this issue, and the Council's decision to
wait until the stormwater standards came from the Technical Advisory Committee
(TAC). Mills stated the idea was brought up about stormwater special districts for
single - family residences. Before that time, single - family residences were exempt,
and not required to do any type of stormwater treatment. With the formation of
the stormwater special districts at approximately the same time as the watershed
overlay protection zone for Lake Whatcom, the three targeted areas were Lake
Whatcom, Lake Samish, and Drayton Harbor. In December 2000, staff came back
Planning and Development Committee, 4/23/2002, 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.
to the Council, changed the thresholds, and Lake Samish was put on hold while
waiting for the stormwater special district standards to be created. That is where it
is at today. Also in December 2000, Drayton Harbor was deemed to be unique
from Lake Samish and Lake Whatcom.
Amy Pederson, Planner I, stated staff proposes to strike the language after
Lake Samish in section 20.80.634(2)(c), but this issue addresses Drayton Harbor
specifically, so they don't want to do that at this time. The new language limits
stormwater special district requirements to development which discharges
stormwater directly into a stream or wetland; development that is located within
200 feet of a stream or wetland and that discharges stormwater directly into the
drainage basin of that stream or wetland; anything that is subject to the Shoreline
Management Program; and anything that in the urban residential (UR) zone.
Everything outside of those areas would be exempt from the stormwater special
district requirements. Anything over five acres is also exempt in all the
watersheds.
Nelson asked why they have any stormwater requirements for Drayton
Harbor. Pederson stated Drayton Harbor was the first stormwater special district.
It came up because of some Comprehensive Plan amendments relating to the
Blaine urban growth area (UGA) short -term planning area (STPA). As a condition
of those changes, the Drayton Harbor watershed was designated as a stormwater
special district.
Sylvia Goodwin, Planning Division Manager, stated it was a Council decision
to protect Drayton Harbor for oyster growing. Many of the oyster and water quality
concerns are because of the stormwater. She didn't know that the Council knew at
the time that the Drayton Harbor watershed went all the way to Lynden.
Nelson asked if there was action taken by the State to form the district.
Goodwin stated the Drayton Harbor Shellfish Protection District was formed as a
result of the State. The action by the State was a shellfish closure, requiring the
County to develop a shellfish response strategy.
Nelson asked if the State declared it an impaired body. Goodwin stated the
State did.
Nelson stated there are several water bodies on the 303(d) list. Goodwin
stated that is correct. As a result, Drayton Harbor was closed to oyster harvest.
The County had to develop a closure response strategy and form a district.
Nelson stated it was because of the impaired water body. Drayton Harbor
had a State closure imposed on it for shellfish protection. The strictest
requirements are from the State on the 303(d) list. The State Department of
Ecology has spent a lot of money in evaluating effluent discharges into Drayton
Harbor and other activities. Goodwin stated the County has also spent a lot of
money.
Planning and Development Committee, 4/23/2002, 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.
McShane stated one can argue that the State hasn't spent enough, because
it hasn't done a total maximum daily load (TMDL) study yet.
Nelson stated they are still waiting for that in Lake Whatcom also.
McShane stated Lake Whatcom is ahead of Drayton Harbor on the list, even
though Lake Whatcom was listed on the 303(d) list later. They have moved to
actually do the TMDL study on Lake Whatcom.
Nelson stated they have a more serious listing because they actually closed
shellfish production in Drayton Harbor. They haven't had any closures in Lake
Whatcom. However, they want to restrict or decrease the requirements. Goodwin
stated the reasoning is that no one drinks the water out of Drayton Harbor. Staff's
reasoning for looking at this is the staffing level. They don't have the staff to
monitor that huge of an area if it's not critical.
Nelson stated he doesn't want to administratively get into this. The Council
needs to look at this and say that all districts must have certain development
standards, reduce the size of district to be more manageable, or find a funding
mechanism to take care of that manageability. When they begin to amend
ordinances for special circumstances in certain areas, they are going down the
wrong path. They need to make sure that these can be administered and are
equitable across the board.
McShane asked if there is much zoning like rural residential, two units per
acre (RR2) or rural residential, three units per acre (RR3). Pederson stated there is
not. The zoning is rural, one unit per five acres (R5A), rural, one unit per ten acres
(R10A), agriculture, urban residential, and a small amount of commercial. In this
proposal, the exempt areas are not specified by zone, except for the UR zone.
McShane stated that a person with a five -acre parcel would not have to do
this if he or she were more than 200 feet away from a stream. Pederson stated
that is correct. This is for anything less than five acres.
Caskey- Schreiber asked if someone around Lake Whatcom or Lake Samish
who is 300 feet from a stream, but who is on a slope, would be exempt. Pederson
stated this applies to the entire watersheds of Lake Whatcom or Lake Samish. If in
Drayton Harbor, that scenario would not meet any of the criteria unless it was in
the urban residential zone.
Fleetwood asked how staff decided to use R5A as a threshold. Goodwin
stated a five -acre parcel is large enough that the stormwater can be treated onsite
without flowing offsite.
Planning and Development Committee, 4/23/2002, 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.
McShane asked if the impervious percentages would still apply to the R5A
parcels. Goodwin stated they only apply in the Lake Whatcom and Lake Samish
watersheds. The only thing that would apply is the new stormwater standards.
McShane stated the water resource protection overlay district deals with
impervious surfaces, and sets that percentage. It doesn't apply here because it's
not in that type of district.
Nelson stated there are some impervious surface restrictions in the new
stormwater standards. He asked if they would apply here. Goodwin stated there
are not impervious surface restrictions in the stormwater standards. They were
requirements for infiltration treatment.
Mills stated the new stormwater special district standards do not apply to lots
five acres and above. For property smaller than five acres, 65 percent of the lot
needs to remain in a vegetative state.
Goodwin stated that if they leave it the way it is, Drayton Harbor is in the
stormwater regulations. If they do nothing, they would remain in there.
Nelson stated that if the Council adopts the changes, only certain parcels in
Drayton Harbor that meet the criteria would be subject to the district standards.
McShane stated the standards would apply to someone within 200 feet of a
stream or wetland and discharges stormwater directly into that stream or wetland.
Nelson asked if someone would be required to do that now under the critical
areas ordinance. Pederson stated critical areas review is at 100 feet currently.
Depending on the nature of the critical area, the buffers may be 50 to 100 feet.
Two hundred feet is new.
Nelson asked why the threshold of 200 feet was chosen. Pederson stated
200 feet would treat all the critical areas consistently in terms of stormwater. It is
the Shorelines Management Program threshold. Staff decided to treat all streams
in critical areas and shorelines equally.
Nelson asked if the standards are to protect against pollutant loads.
Pederson stated they are intended to decrease runoff and stormwater loading that
would enter those bodies.
Nelson asked why they wouldn't just adopt those as the stormwater
standards. Goodwin stated 200 feet isn't enough to take out everything, if they are
talking about a drinking water system.
Nelson asked if 200 feet protects against the commercial viability of an area.
Goodwin stated it may or may not. Two hundred feet is an arbitrary figure that
Planning and Development Committee, 4/23/2002, 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.
they felt was safe because of the shoreline program, but it's not going to provide a
100 percent guarantee that it's going to keep the water quality clean.
McShane stated 200 feet is the distance they are already looking at through
a lot of other development regulations. Goodwin stated 200 feet is a reasonable
distance. At one point they talked about 500 feet. If someone is within 200 feet,
the County would want a special review and some additional treatment and
retention of the stormwater. If someone is beyond that, a lot of it could infiltrate
before it got close enough to the water body to cause a problem.
McShane state that the issue is that one may not need to have such strict
development criteria because the zoning itself is protective of the water body.
Goodwin stated that just because someone has a five -acre parcel, that may not
protect if a house is located right on the creek or wetland. The size of the parcel
isn't always going to solve the problem. That is why the 200 -foot criterion seems
to help. It will encourage a developer to build away from the water body.
Goodwin stated options are to do nothing and accept the Planning
Commission recommendation, make this change and have a public hearing, or
remand back to the Planning Commission.
Geoff Menzies, Drayton Harbor Shellfish Protection District Advisory
Committee Chair, stated a special designation that protects the water in Drayton
Harbor is important. He is concerned that they would separate Drayton Harbor in
the new regulations. He asked the rationale behind this. Urbanization and land
conversion has been identified as a threat to sustaining water quality in Drayton
Harbor. The concern is the exemption to the infiltration and detention
requirements. Through infiltration, they get the best control of fecal coliform
bacteria, which is the organism that is used for classifying shellfish - growing areas.
That is one of the reasons Dakota Creek and the harbor are on the 303(d) list. This
doesn't apply to a house on five acres. They are not talking about rural versus
urban areas.
McShane stated Mr. Menzies' concern seems to be regarding the notes under
the treatment detention requirements, note four. That is a separate issue than
what is presented today. The draft proposed amendments before the Council now
is determinative language as to whether the stormwater rules would apply at all. It
would apply to the urban areas.
Menzies stated Drayton Harbor was singled out to not have infiltration and
detention requirements.
McShane stated that language is still in the ordinance.
Mills stated that in December 2000, they proposed that agricultural, R5A, and
R10A zones of Drayton Harbor be removed, except those lots that had already been
platted into one -acre and less sizes. They had to go back with changes to the
Planning and Development Committee, 4/23/2002, 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.
Planning Commission. When staff met, the compromise was that for those large
areas in the entire Drayton Harbor watershed, they would remove infiltration and
detention requirements, but keep the treatment requirement. The motion that the
Planning Commission denied was to do treatment in stormwater, but not detention
and infiltration. Today, they are looking at something different. They are going
back to what they talked about in December 2000, which is to remove larger areas,
with the exception of those areas within 200 feet of a water body.
One problem that came up was that they were getting applications for a one -
acre parcel surrounded by a very large section of land, such as a farm, that had no
impervious surfaces. That is why they said they should maybe take out those large
areas.
Menzies asked if that is a different situation than what would occur in the
Lake Whatcom and Lake Samish watersheds. If it is different, then he understands
the logic. If not, then he doesn't see the logic. Goodwin stated there is five acre
and ten acre zoning in Lake Samish and Lake Whatcom. There is less of that type
of property, but there is some.
Caskey- Schreiber asked what happens if down the road, someone up -zones a
large parcel, subdivides it into smaller lots, and it becomes non - compliant.
McShane stated that if a property owner divides to that level, he or she
would need to mitigate their stormwater, because they would be in a different zone.
Caskey- Schreiber stated she is talking about a situation where the home is
already there. Mills stated subdivisions of land already fall under chapter two,
stormwater detention and treatment requirements. Plats and short -plats are a
separate issue.
Caskey- Schreiber stated that the new parcels would comply, but the one
original, existing piece of the property with a home already wouldn't apply.
Roy asked if these recommendations are coming from the best practices that
exist, or from staffing issues. Mills stated the State Department of Ecology (DOE)
came out with its new stormwater manual. Some of these requirements, especially
in the stormwater special district manual they got this morning, are right out of the
DOE manual. Many of the guidelines are similar.
Goodwin stated the best thing for water quality countywide would be a
countywide district. They are working toward that. Every piece of land in the
county is in some watershed. Ultimately, it would be nice to get rid of all the
special districts and have one district for the county. This is both a staffing issue
and an issue of the requirements of how much extra design work the citizens in
those areas should comply with. Staff has been trying to focus on drinking water
areas rather than other areas.
Planning and Development Committee, 4/23/2002, 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.
Mills stated the five -acre threshold is in the DOE manual. In the Drayton
Harbor watershed, 83 percent is zoned R10A, R5A, or agriculture. It isn't fitting to
put those requirements on lots that are small parcels within those zones, because
large parcels surround them.
Fleetwood asked if there is any good reason to not remand back to the
Planning Commission.
Goodwin stated the Planning Commission would appreciate it if this was
remanded. The only reason not to remand it is because of their workload and the
staff's workload. They can fit it into a Planning Commission meeting between now
and June. If they do nothing, water quality protection stays in place. There is no
reason to not remand it back.
Bob Wiesen, Planning Commission Chair, stated he's not comfortable with the
input they have about how it actually works on the ground. They should have big
on- the - ground gains.
McShane moved to recommend adopting the staff language regarding
stormwater special districts in the Drayton Harbor watershed, and to schedule a
public hearing. They will get plenty of input between now and then.
Nelson stated they should include all the districts, not just the Drayton
Harbor district. Use the same standards throughout the district.
McShane asked the process of doing that. Goodwin stated that if that is
what they want to do, leave it as it is, and direct the Public Works Department to
work it into the development regulations.
Brenner asked whether this should go back to the Planning Commission.
Wiesen stated the Planning Commission wanted to see more concrete consequences
for the various guidelines. They have that now. The Planning Commission can
discuss it.
(Clerk's Note: End of tape one, side A.)
Menzies stated the Planning Commission recommended the Drayton Harbor
not be exempted and that policies be drawn up. The question is whether these
guidelines make sense for Drayton Harbor, Lake Whatcom, and Lake Samish. That
is the issue. Don't continue to chip away at areas in the Drayton Harbor watershed.
No one is trying to chip away at areas in Lake Samish or Lake Whatcom watershed.
They are chipping away at these areas because of staffing. The impression is that
Lake Whatcom and Lake Samish are higher on the priority list because they are
drinking water areas.
McShane withdrew his motion.
Planning and Development Committee, 4/23/2002, 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.
Menzies stated the Planning Commission said not to exempt Drayton Harbor,
and to develop the policies, which has been done. Now that the policies are
developed, revisit them.
McShane stated these are not policies. The Council doesn't approve them.
Between now and a public hearing, the Council can review what has come out of
the Technical Advisory Committee. Set the policy according to how that fits in and
how those proposed technical fixes work with the policies.
Menzies stated the dynamics of that wouldn't be much different between
Lake Whatcom, Lake Samish, or Drayton Harbor.
Caskey- Schreiber stated she is inclined to leave it as it is until they put out
some regulations.
McShane stated that the County Executive approves the design standards.
Having an understanding of the design standards, the Council can set policy that
matches it.
McShane stated they should remand this and the stormwater special district
standards back to the Planning Commission for discussion. He so moved to
recommend to the full Council. Look at the standards and set policies according to
the standards.
Motion carried 2 -1 with Caskey- Schreiber opposed.
COMMITTEE DISCUSSION
1. DISCUSSION WITH PLANNING AND DEVELOPMENT SERVICES
DIRECTOR HAL HART REGARDING ZONING ISSUES (AB2002 -184)
Hal Hart, Planning and Development Services Director, stated the
presentation will be changed from zoning issues to the State Environmental Policy
Act (SEPA). John Guenther will give a presentation on SEPA.
John Guenther, Senior Land Use Specialist /Deputy SEPA Official, submitted a
copy of the Washington Administrative Code (WAC) 197 -11, the SEPA rules. He
would discuss the SEPA process. It barely scratches the surface of what he does
daily to evaluate the significance of environmental impacts.
He is often presented with a situation where something is proposed, and a
group doesn't feel that it does enough. The group will try to use SEPA to address
their concern. SEPA has no authority to recommend or initiate any further action.
With that in mind, SEPA is policy. It is something that, if implemented as it should
be, it should affect virtually all actions that local governments and State agencies
take. "Actions" is a significant word in the SEPA regulations. SEPA is the State
Planning and Development Committee, 4/23/2002, 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.
equivalent of the National Environmental Policy Act (NEPA). NEPA was enacted in
1969. SEPA was enacted in 1971. It is an environmental review required for all
actions as defined under SEPA.
There are two different kinds of actions, project actions and non - project
actions. Project actions are things like permit applications, subdivision applications,
binding site plans, landfill and excavation applications, timber harvests, and
demolition. Non - project actions include things like Comprehensive Plan
amendments, zoning changes, development regulations, and planning plans. There
is a specific type of action called a Growth Management Act (GMA) action.
There are provisions in SEPA for determining whether an action is
categorically exempt, and therefore not subject to a SEPA threshold determination.
If it is determined that something is categorically exempt, there is no requirement
for documentation of that determination. The exemptions pertain to minor new
construction activities, repair and maintenance, issuance of water rights, certain
business activities of agencies, certain types of utility work, and agency- specific
actions that pertain to State agencies.
The SEPA review process begins when an application is received or an agency
initiates a proposed action. The first thing he does is determine whether or not it is
categorically exempt. Oftentimes, there are other agencies that will issue permits.
Depending on whether or not their approvals are SEPA actions, it needs to be
determined who the SEPA lead agency is if more than one agency is permitting an
action. There are procedures in SEPA for that process. The provisions provide a lot
of flexibility.
The consultation with other agencies prior to the threshold determination
would exclude working with other agencies during the SEPA comment period or
further down the road. A threshold determination is made. There are two types of
threshold determination. There is a determination of non - significance and a
determination of significance.
A determination of non - significance (DNS) can include SEPA- specific
mitigating measures, and would be called a mitigated determination of non -
significance. A DNS may require a 14 -day comment period. They are required if it
is a mitigated DNS, if there is another agency with jurisdiction, if it is a GMA action,
and if there are excavation and clearing activities. Discretionary permits require
14 -day comment periods.
All determinations are published in a local legal notice. All SEPA
determinations can be appealed. The State law does not require an appeals
process, but the County SEPA ordinance provides for a SEPA appeals process.
During the comment period, he evaluates comments received. He can withdraw or
revise his authorization at any time prior to a decision.
Planning and Development Committee, 4/23/2002, 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.
SEPA is to benefit decision - makers. With the exemption of proposed
ordinances, text amendments, and map amendments, the Hearing Examiner is the
decision -maker for most of the decisions in the County. One extreme is an
environmental impact statement (EIS) for the expansion of the Trillium quarry.
That will be an administrative approval. On the other hand, DNS's are issued for
low impact projects that find themselves before the Hearing Examiner.
McShane asked if the decision on the Trillium quarry by Doug Goldthorpe
could be appealed. Guenther stated he is more familiar with SEPA appeals. The
SEPA appeals process has passed. Any administrative decision they make can be
appealed. The EIS is independent of that process. There was a SEPA appeal
opportunity when the threshold determination was made. That process plays its
course, and becomes part of the application. Until a decision is made on the
application, there is no opportunity to appeal.
Roland Middleton, Land Use Division Manager, stated that once the decision -
maker makes the decision, if the SEPA determination was not appealed, then the
adequacy of the SEPA review would need to be appealed with the decision - makers
decision. If something comes forward to the Council, and there is an EIS, the
person appealing it would need to appeal the Council's decision as well as the SEPA
decision to get the adequacy of SEPA to Superior Court. An initial appeal of the
determination only goes to the Hearing Examiner. If someone makes an appeal on
an interpretation of the code, it has to be appealed to Superior Court with the
action of the project or decision.
Brenner asked if only a mitigated DNS may have a 14 -day comment period.
Guenther stated not only a mitigated DNS. Certain criteria need to be met.
Brenner stated that a mitigated DNS has to have a 14 -day comment period.
Guenther stated that is correct.
Brenner asked if a regular DNS might not have to have a 14 -day comment
period. Guenther stated that is correct, it may not.
Brenner asked how someone would appeal it. Guenther stated there is
always an appeal period. It's a smaller window. If there is a comment period, the
ten -day appeal period begins at the end of the 14 -day comment period. If there is
no comment period, the ten -day appeal period begins from the date of publication.
Guenther continued to state that when a determination of significance is
issued, an EIS is required. He will have a preliminary scope in mind that should be
evaluated, based on his discussions with other staff and agencies. There is a 21-
day public scoping period, during which time he will receive comments on that
determination, and that scope may be modified. The scope is finalized, and the EIS
preparation begins. The determination of significance can also be appealed.
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The EIS requirement is significant in that it enables SEPA- substantive
authority. That is where decision - makers are generally required to make decisions
based on the legal aspects of what is brought before them. SEPA enables decision -
makers to make decisions based on environmental impacts described in an EIS. An
EIS is required. One does not get to SEPA- substantive authority unless a
determination of significance is issued and an EIS is prepared.
The EIS is documentation of technical and scientific studies. It is used to
accompany application to inform the decision - maker. It also enables a level of
public participation. The first publication is the draft environmental impact
statement (DEIS), which is basically the technical work of an EIS. The EIS format
is published along with all that supporting documentation. It goes out for public
comment. Based on comments received, it is corrected, modified, or amended. It
becomes the final EIS. A final EIS can be supplemented.
Whatcom County prepares EIS's by using a three -party contract involving the
lead agency, the selected EIS consultant or author, and the proponent of the
action. The EIS is prepared for the County. The author is working for the County.
The proponent pays them. If a County- initiated action, the County would pay for
the preparation of the EIS. SEPA provides agencies the authority to prepare EIS's
themselves, if they have the staff and expertise. Nothing prevents the County from
preparing its own EIS.
Brenner asked if the County has ever prepared an EIS. Middleton stated it
did a couple of supplementals for the Comprehensive Plan. They hired a temporary
employee who worked on those. For private projects, they don't do EIS's.
Guenther stated that decision - makers can range from staff, managers and
directors, the Hearing Examiner, the Council, and in the case of Energy Facility Site
Evaluation Council (EFSEC)- initiated projects, the Governor.
SEPA provides guidelines and a process for cooperation with other agencies.
Oftentimes, there are projects that are subject to NEPA, so there are provisions for
combining those processes to eliminate redundancy.
Middleton stated the County is very fortunate to have John Guenther on
staff. SEPA is a scientific tool used for planning decisions and administrative
decisions. Mr. Guenther is a hydro - geologist, and performs that function very well.
Besides the EIS's that Mr. Guenther oversees, he is also responsible for about 250
SEPA determinations per year. In addition, he is also the senior in charge of all the
compliance and enforcement of all the County codes that the Planning Department
oversees. Mr. Guenther is a very busy person.
If an environmental impact statement comes forward, it doesn't mean that
SEPA requires the decision -maker to deny the project. SEPA is a very important
tool to be respected. That's why they stay quantified in the impacts, and stick to
the code.
Planning and Development Committee, 4/23/2002, Page 11
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McShane stated it is not the decision, but a tool for making a decision.
Brenner asked if SEPA is subjective. Middleton stated it is not, but the
definition of "significant impact" is. The courts have given them the term to use,
"more than moderate." That part is significant. That is one of the most difficult
things about being the SEPA official. They look to the codes and the
Comprehensive Plan about what is significant. They try to stay informed on a
myriad of court cases.
Nelson asked if there is ever a time when there is a conflict between policies
and court cases. Middleton stated there is.
Nelson asked how that comes back to the Council to modify the law.
Middleton stated that is why Sylvia Goodwin is here so often.
Fleetwood asked if the checklist is done by the proponent. Guenther stated it
is.
Fleetwood asked how often they suspect a proponent to skirt the answers.
Guenther stated people of all different backgrounds complete the checklists. It is a
disclosure statement that gives him an indication of how much the proponent is
aware of the likelihood of impacting that broad range of elements of the natural
built environment. He doesn't necessarily base his decisions on the information in
the checklist. He looks to see that certain information is there, and that certain
things were considered. He's seen checklists come in with no information on any of
the questions. He doesn't know what to do in those cases. He begins to look for
information in the application.
Fleetwood asked at what point a determination is made that a project is
categorically exempt. Guenther stated that is the very first thing that is done. It
doesn't always get to him for that. Counter staff is aware that certain things are
categorically exempt, such as single - family residences. Staff would never ask that
a checklist be completed with the application for a single - family residence. He gets
calls from other agencies and is contacted by other staff, such as the shoreline
administrator, who asks if SEPA is required. The focus of SEPA is limited to likely
significant adverse impacts, and not address impacts that might otherwise be
addressed through the critical areas ordinance or development standards, for
example.
(Clerk's Note: End of tape one, side 8.)
The intent is to integrate SEPA into the process as early as possible, even
though that could be challenging; encourage public involvement and decisions that
significantly affect environmental quality; and identify, evaluate, and require
reasonable alternatives to mitigate adverse affects of proposed actions on the
environment. The idea of requiring the evaluation of alternatives often comes up.
Planning and Development Committee, 4/23/2002, Page 12
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For public proposals, alternatives need to be evaluated in an EIS. For private
proposals, no action satisfies the requirement of considering an alternative.
Dave Grant, Senior Civil Deputy Prosecutor, (inaudible).
Guenther stated he is not well versed with regulatory reform. For
discretionary permits subject to regulatory reform, he cannot issue a threshold
determination before the end of the notice of application comment period. There is
a process for integrating the issuance of a threshold determination in the form of
intent to issue a threshold determination. In the notice of application, it describes
that this may be the only public notice of the threshold determination. It shortens
the time period. There is some driving force to reduce the time it takes to process
applications.
Grant (inaudible).
Guenther stated he can pretty much do what he wants with a SEPA threshold
determination any time prior to the decision being made. If there is a 14 -day
comment period, and he doesn't receive comments during that period, but a
comment comes in after that but before a decision is made, he can consider that
comment if it is substantive and significant.
Middleton stated the State law requires that the lead agency shall withdraw
its SEPA determination. That happens once in a while. The Hearing Examiner
issues a timeout, it goes back through the SEPA process to find out if there are
mitigating measures, and it starts all over again. After the decision has been made,
then the courts will have to decide. It isn't remanded back. Nor are SEPA
determinations made for enforcement actions.
Guenther stated the SEPA comment period is to provide a limitation on
someone turning the review process into a never - ending back - and -forth to close
the door on a public process.
Middleton stated that if any new information comes forward after the
comment period, it has to be substantive new information or it has to show that
there was an error in the SEPA determination. A reiteration of what they already
discussed bears no weight.
Brenner asked if they can work something out that calls attention when one
of the cities has a development right on the city limits that could heavily impact the
county. They are falling through the cracks. Middleton stated the SEPA officials for
the cities are supposed to contact the County SEPA official and send any project
that will impact other jurisdictions. If they have a project on the border, they look
at the impacts of the projects. They'll send information to Canada. SEPA
specifically says that impacts don't stop at a jurisdictional border. The law is
established there. They are trying to educate their colleagues in the cities that the
County does need this information.
Planning and Development Committee, 4/23/2002, Page 13
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Brenner stated that County staff is not understanding that proposals are right
on the jurisdictional border, and it will impact County roads. Guenther stated he
spoke to Tom Black, Ferndale Planning Department Director, who is doing
everything in compliance. Mr. Black forwards those notifications to him. To some
extent, he takes the time to sit down and does the review that the city has already
done and determines a threshold for a project that the County doesn't have
jurisdiction over. He's been distributing the determinations to other departments.
It boils down to who has the time to sit down and look at these things going on in
other jurisdictions, when they question whether they really have the time to
perform an adequate review of things going on in this jurisdiction.
Brenner stated the County has the jurisdiction to be part of the decision -
making process. Guenther agreed. They could participate to a much greater
extent.
Brenner stated this is the reason people don't want to be in urban growth
areas. They feel that they've gotten no representation from the County, and the
city doesn't care because they don't vote in the city. These people are not being
represented. Brenner stated the information has to be written up in a way to
identify the project's distance to the border.
McShane stated that would have to be established in an interlocal
agreement. SEPA is not going to do that. Middleton stated they need to keep that
in mind as they go through the Comprehensive Plan review. It's an issue of
communication. Add a section regarding communication to the interlocal
agreements through the Comprehensive Plan review process.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 4:50 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Planning and Development Committee, 4/23/2002, Page 14
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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.
Dana Brown - Davis, Council Clerk Dan McShane, Committee Chair
Planning and Development Committee, 4/23/2002, Page 15