HomeMy WebLinkAboutNatural Resources March 20 20011
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
March 20, 2001
The meeting was called to order at 9:30 a.m. by Committee Chair Dan
McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington,
Also Present: Absent:
L. Ward Nelson None
Connie Hoag
OTHER BUSINESS
DISCUSSION OF THE REQUESTS FOR SUPPORT FROM THE WATER
RESOURCE INVENTORY AREA (WRIA) 1 CAUCUSES (AB2001 -121)
McShane stated that a meeting was held on Saturday that included him and
Councilmembers Dawson and Crawford to discuss the requests. This item will also
be discussed at the Finance Committee and the full Council. The Council originally
budgeted $50,000 for caucus support. There is some money still in the Water
Resource fund, because of money that was not spent. The subcommittee will
recommend increasing that support money to a total of $69,960. The
subcommittee reviewed all caucuses requests that were submitted. More detailed
information on how the subcommittee made its determination is available and
would be discussed at the Finance Committee.
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. RESOLUTION INITIATING COMPREHENSIVE PLAN AND ZONING
AMENDMENTS (AMENDMENT 2001 -A) (AB2001 -041)
McShane stated a mineral resource land (MRL) request was inadvertently left
out from previous Planning Committee meetings.
2001 -P MRL /VALLEY VIEW ROAD
Natural Resources Committee, 3/20/2001, Page 1
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Matt Aamot, Senior Planner, stated the MRL is by Valley View Road. There
are three issues in the zoning code that the Council must look at for initiation. One
criterion is if the area is in the urban growth area (UGA). The second criterion is if
the area is agriculture, forestry, or mineral resource lands. The third criterion is
whether or not the issue will be examined in the future.
The area is not in a UGA. The Blaine city limit is.5 mile to the north. The
area does not affect designated agriculture or forestry land. It is adjacent to an
existing MRL zone. The MRL designations will be reviewed by the County by 2004.
Mining has occurred on the site. Two conditional use permits from the mid- 1970's
were transferred to Mr. Connolly, the applicant, in the early 1990's. There is a golf
course to the south. It is 50 acres. There is a small patch of agricultural Trump
Loam soils, but it doesn't cover a significant portion of site. To the north and east
is existing MRL. The applicant had three wetlands delineated. According to the
SEPA checklist, the wetlands will not be disturbed. One wetland was created due to
excavation. There are no major pipelines. The area is not within, but just outside
of, the Blaine wellhead protection area. It is within an area mapped as a significant
resource area by the state Department of Natural Resources (DNR) study and a
1994 County document that maps the mineral resource areas.
Nelson moved to docket amendment 2001 -P.
Doug Campbell, Associated Project Consultant, stated there are two
applications that are related to each other. This is the Valley View MRL pit. South
of that is the Custer sand pit, which is also up for review. The applicant has been
transferring sand from the Custer area pit to Valley View to blend the materials.
It is an advantage to the County to proceed. The Valley View pit is adjacent
to two county -owned parcels. This was up for consideration for MRL status in 1990.
There may have been an error then because it was not included. The applicant
intends to convert the property to home sites, consistent with zoning regulations,
by creating a series of three large water bodies. The reclamation plan is under
consideration by DNR for final adoption. The 1970's plan for reclamation was
inadequate. The applicant has chosen to depart from a conditional use permit and
bring the reclamation plan up -to -date. Once the project is finished, this site will be
converted to a residential location. The sandpit at Custer also is a temporary
operation. One lake has already been built and reclaimed. DNR is also on board
with this project. The Custer pit is only sand extraction. The neighbors to the west
have all given their support for this operation as a temporary operation to continue.
One element that makes a significant difference is that it is a temporary
situation. Both sites will be reclaimed per County and DNR rules. Second, the sites
are compatible with other sites and uses in the vicinity that have been approved by
the County already. Third, the hydrology in the area is not affected by extraction.
There are some wetlands on the Valley View site. Fourth, this location is in the
western part of county. The gravel that is shipped around the county comes from
the central part of county. This operation will reduce impacts to the county road
system and air pollution by reducing travel distance by 50 miles round trip. They
Natural Resources Committee, 3/20/2001, Page 2
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would use fewer fossil fuels. Fifth, it loosens up any gravel monopoly in the county.
It would helps the economy. Last, there is neighbor support to continue the
operation.
McShane asked for a description of the material at Valley View. Campbell
stated it is a clay content. Some meet the state Department of Transportation
(DOT) specifications. By blending, they can make it suitable.
McShane asked the difference of having an MRL designation, since there are
two conditional use permits. Campbell stated it makes sense to call it what it is. It
should have been designated as MRL in the 1990 plan.
McShane asked if there would be any advantages of loosening the conditions
if it became an MRL. Campbell stated he didn't know of any. The rules are already
set. There may have been an incentive to not designate the area in the 1990's.
Hoag stated it looks appropriate at first glance. She asked if the requested
MRL status was not applied for or denied in the Comprehensive Plan process.
Campbell stated it was not applied for.
Hoag asked if it is prime soil. Aamot stated it is.
Hoag asked if it is in the agriculture protection overlay (APO) at all.
Campbell stated that there is no Tromp Loam soil left on the site. This pit has been
in operation since the 1970's. All the soils have been stripped or stockpiled at this
point.
Hoag stated the map shows the current MRL and the extension that is
requested. The extension would bring the pit closer to smaller platted parcels. She
asked if those smaller platted parcels have homes. Campbell stated there are two
on the southern boundary. Clustering would be to the northwest corner of the
property. There is some separation between the residents.
Hoag stated she wanted to know the impacts to area residents going from a
conditional use permit to an MRL. There are also platted properties to the west.
Campbell stated the areas to the west don't have homes.
Hoag asked if there was any feed back from neighbors near the Valley View
site. Campbell stated there was not.
Aamot stated that in the APO zone, one could be exempted from the
provisions if he or she meets three conditions: the parcel does not have more than
50 percent APO soils, which this does not; if 50 percent or more of the parcel has
not been designated as agricultural open space for tax purposes, and; if 50 percent
or more of the parcel was not used for commercial farming. This parcel could be
exempted. He also has a revised resolution to include a short description of this
parcel.
Natural Resources Committee, 3/20/2001, Page 3
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Hoag stated she wanted to see what would change in the conditions by going
through the MRL designation process. Also, the Council should not docket any
MRL's now. Wait for the five -year review. This is not the process the Council
should follow.
Aamot stated he submitted a copy of the permits. There is a provision in the
code that old mining permits have to meet the standards of the MRL zone, including
hours of operation.
Hoag stated there are conditions of the conditional use permit that may not
apply with an MRL. She would look at it before the evening meeting.
Aamot submitted a copy of the substitute resolution.
Motion carried 2 -1 with Hoag opposed.
2001 -A ENDANGERED SPECIES ACT
Aamot stated staff sent the Council a memo last week (on file). The Council
discussed this item on March 6 and March 13. In response to the discussion, staff
made changes to the proposal. The first change deals with proceeding under path
III or path IV of the state Department of Ecology guidelines for updating the
shoreline program. The Council was not comfortable proceeding with part IV at this
time. Staff suggested a proposed language change to action item 54, and provided
two options. Option one would be to specify at this time that the County is going to
proceed with part III, and then review part IV and implement as appropriate.
Option two is to indicate that the shoreline program will be updated without
specifying part III or part IV. The County will wait until the shoreline inventory is
done. At that point, they will have more complete information.
The second issue is with the term "properly functioning conditions." It is the
term that the federal government uses to indicate the conditions needed to restore
salmon habitat. The federal government indicated that the concept of properly
functioning conditions has to be found in the local ordinance for them to buy off on
a County ordinance. It goes hand -in -hand with the part III /part IV distinction. Part
IV uses that term extensively. Part III does not mention it. It may be
inappropriate at this time to use that term since they are delaying the decision on
which part to use.
At the work session, there was discussion about how existing agriculture
would be affected by these amendments. Staff tried to clarify that existing
agriculture would be encouraged to restore habitat, but there is not a requirement
on existing agriculture.
Hoag stated the County Council has typically supported properly functioning
conditions. However, she questioned requiring people to restore things to those
conditions. There are areas where the language talks about encouraging,
protecting, or maintaining conditions. In those areas, she would like to see that
Natural Resources Committee, 3/20/2001, Page 4
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language remain. She asked to go through each area. The question is what they
will regulate, what they will encourage, where they will require people to go back
and fix something that happened before, and where they will require people to
protect what is currently there.
McShane stated the term "properly functioning conditions" is loaded
language, and asked if that was the reason the language was removed. Aamot
stated it was.
McShane stated that the work session discussion about that issue was that
the term is a loaded phrase that links the County to path B. It doesn't make a
difference within a Comprehensive Plan context to say that improvement programs
do not degrade habitat. He was a little concerned that they not commit to that,
since the concern of councilmembers is with the paths. Aamot stated it is a term
that has a specific meaning to the federal government. Staff is concerned that the
Comprehensive Plan references a different path than what the County will really
take when they begin to develop the shoreline program.
McShane stated that they would look at that specific language when they
begin to develop the shoreline program. Where they choose to go with path B,
they will need to use the term "properly functioning habitat." He questioned
whether the thought was to not tie the Council to doing that with the
Comprehensive Plan. Aamot stated it was. When the inventory is done, they will
have a better idea of where they have those properly functioning conditions
already. Now, they have polluted waterways on a 303(d) list that are not properly
functioning.
McShane stated that without the properly functioning conditions, one could
say that it is the degraded habitat.
Hoag stated that the Comprehensive Plan talks about policy. If the policy is
to encourage properly functioning habitat, the Comprehensive Plan should say that.
They talked about pulling items from paths A and B, and she would like to look at
each item to see if that term belongs.
McShane stated he wanted to look first at the options at the end, in action
item 54.
Nelson asked the difference between option one and option two. Aamot
stated option one decides now how to proceed. The other option leaves it open -
ended to wait for the information from the inventory.
McShane stated the inventory collected would be to enable them to follow
path B if they chose at the time.
Hoag stated the two options are saying the same thing, but the first one
spells out that it will be part III with items from part IV. The second option leaves
them open to doing the same thing, but it just doesn't say that is what they are
Natural Resources Committee, 3/20/2001, Page 5
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going to do. Politically, the second option is more desirable because it leaves the
options open. In terms of adopting policy, they should just say that they are going
to amend the shoreline management program to protect threatened and
endangered species consistent with the Department of Ecology rules. That will
allow the County to go with either path. She asked for legal clarification, because
she wanted to know that her assumption is correct.
Dan Gibson, Senior Civil Deputy Prosecutor, stated Councilmember Hoag's
assumption was correct.
Nelson moved to approve option two for Comprehensive Plan action item 54.
Hoag stated she wanted to make sure that choosing option two would not put
up any barriers to doing option one. Aamot stated he understood that the staff is
to proceed with gathering all the information by doing the inventory that the
Council would need under path III or path IV. Option two was that approach, in
that the Council wouldn't make a decision right now on which part to take. The
staff would gather the information and the Council would decide later. Option two
would not prohibit the County from doing one or the other of the paths. Staff
would wait for that direction from the Council.
McShane stated it comes down to being informed when they make that
decision. Option two will allow them to make a very informed decision. It will also
help with the Planning Commission process.
Hoag asked if option two causes extra work for staff. Aamot stated staff
would proceed with the first two steps that they would need for either path A or B.
Staff has its direction for now. Before proceeding with step three, staff would get
more direction from the Council.
McShane restated the motion to amend language to Comprehensive Plan
amendment action item 54, "Amend the Whatcom County Shoreline Management
Program to protect threatened and endangered species, consistent with the state
Department of Ecology rules, WAC 173 - 026."
Motion carried unanimously.
(Clerk's Note: End of tape one, side A.)
McShane stated he was not inclined to go through each item of the paths, as
requested by committee member Hoag.
Hoag stated she only wanted to discuss four items.
Nelson stated he could agree with Councilmember Hoag about certain
language, but was not sure whether changing it would imply problems for other
areas. He questioned whether the term "properly functioning conditions" has a
distinct definition. Aamot stated it does.
Natural Resources Committee, 3/20/2001, Page 6
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McShane stated it means something in the shoreline program. Aamot stated
the federal government indicated in the 4(d) rules what the term means. The DOE
has a matrix to determine if there are properly functioning conditions. It is used by
biologists in determining whether a particular shoreline has properly functioning
conditions. There are six factors that include water quality, habitat access, habitat
elements, channel condition and dynamics, flow and hydrology, and watershed
conditions. Each factor includes additional items. For example, the water quality
condition includes the conditions of temperature, sediment, and chemical
contaminants. There is some definition. These are the things the federal
government wants to see to restore salmon.
Nelson asked if it is a threshold, who determines it, and how the threshold is
defined. Aamot stated it could be defined as a threshold. The conditions list
parameters to determine whether there are properly functioning conditions.
Nelson asked if they would still look at those same guidelines. Aamot stated
ideally.
Nelson stated they are not going to have any parameters until the data is
collected. Aamot stated that was correct.
Hoag stated her concern is with farmers. This Council repeatedly said it
would support maintaining the proper functions, but let the farmers decide how to
do that. It is onerous to require someone to restore to properly functioning
conditions, but is not onerous to do education and provide incentives to encourage
people to restore to properly functioning conditions.
Nelson asked what they would restore degraded habitat to. Aamot stated it
would be restored to properly functioning conditions.
Nelson stated it is already assumed, without having the language that is
onerous. Aamot stated it could be an incremental improvement without going to
the full requirement.
John Thompson, ESA Planner, stated that the properly functioning conditions
matrix of indicators comes from the National Marine Fisheries Service (NMFS)
memo from 1996. It spells out certain conditions that are biologically needed.
That is based on substantial scientific literature. To date, the NMFS position has
been on properly functioning conditions everywhere, all the time. However, within
the forest and fish agreement, and within the agriculture /fish /water (AFW) process,
they are evaluating that position to provide flexibility. That matrix is useful for
identifying the targets. The AFW process is to identify where there is flexibility.
The pathways do not indicate the specific requirements, but what the conditions are
that must be achieved. Through AFW, they are trying to determine where there is
flexibility. The route suggested by Mr. Aamot provides staff the ability to develop
that inventory information, find out where they have problems, find out where it is
working well, and identify where they have the most flexibility. The Comprehensive
Natural Resources Committee, 3/20/2001, Page 7
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Plan has implications for many things, such as critical areas and the farm plans.
This incremental approach allows them to gather data systematically and
strategically to make careful and cautious decisions.
Nelson stated he would not support any changes. He would allow this to go
through the Planning Commission, and then work on it in conjunction with getting
the data assessment.
Hoag stated she would like to see the language put back in areas that would
serve them well politically, to show that the Council and the County's desire is to
see properly functioning habitat.
Hoag moved to amend policy 2M -3 to retain the phrase "to properly
functioning conditions." This is what the goal of those education tools should be. If
they want to get buy -off from NMFS and the DOE, it would serve the County well to
show them that this is where the County is pointing people.
Nelson asked for an example of the tools they are going to provide without
proper data or assessment of where they are trying to provide educational tools.
He questioned how staff is to provide proper incentives when they have no idea
what type of information is needed. Staff hasn't collected the information yet to
make a proper assessment of what incentives and educational tools are effective
and cost - effective for the property owner. That is why they have to take this in
incremental approaches, so the County is not spinning its wheels and so the
property owner doesn't get frustrated with the County for providing education that
doesn't work.
Hoag agreed, but that is not the issue. She supported the incremental
approach and gathering the information first. The issue is whether or not to include
the phrase.
Motion failed 1 -2 with Hoag in favor.
Hoag moved to amend policy 4L -2, "...do not degrade properly functioning
habitat conditions for threatened and...." This language talks about an existing
condition. It does not add an extra requirement.
Motion failed 1 -2 with Hoag in favor.
Hoag moved to amend policy 8E -5, "...restoration of properly functioning
habitat conditions for those riparian areas...." The policy doesn't make sense
without the term.
Motion carried 2 -1 with Nelson opposed.
McShane moved to recommend to the full Council the substitute resolution
initiating Comprehensive Plan amendments with the recommended docket items.
Natural Resources Committee, 3/20/2001, Page 8
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Motion carried unanimously.
Aamot submitted a letter from Water District 13 regarding the Columbia
Valley MRL. The letter says that the proposed mine is in their wellhead protection
area, and they are concerned about potential contamination. They requested and
environmental impact statement (EIS).
McShane stated it is a legitimate concern, and the Planning Commission
should address this particular issue. It is a potential problem. It will be up to the
applicant to take this on. If it comes out of the Planning Commission without this
question answered, he would have a problem supporting it at that point.
Hoag stated that this application violates the criteria because it is in a
wellhead protection zone. Aamot stated that there can't be an MRL in the five -year
time of travel zone. There can be in the ten -year time of travel zone, but one can't
excavate within ten feet of the water table.
Hoag asked what the water table is in that area. Aamot stated he didn't
know.
McShane stated the applicant would have to show that they are not in the
five -year time of travel zone.
Hoag stated the applicant should demonstrate that before the County spends
any staff or Planning Commission time on it. If the County criterion clearly says
that MRL's don't belong in those areas, then the applicant should show they are not
in the five -year zone. She didn't want to spend staff and Planning Commission time
on something that is directly opposed to the County's criteria.
2. DISCUSSION REGARDING TIDELAND MANAGEMENT ON THE LUMMI
RESERVATION (AB2001 -099)
Dawson stated she suggested that the letters go out to four councilmembers.
As long as there is a majority approval, letters can go out. There were two
concerns expressed. Councilmember Hoag wanted the letters to go into committee,
and Councilmember Brenner wanted some things addressed that were mentioned in
the letter. One thing was about the Bezona situation. The County represented Mr.
Bezona. She asked a committee member to move approval of the letters so they
could be discussed.
Dan Gibson, Senior Civil Deputy Prosecutor, stated that the Bezona matter
was a criminal matter pertaining to trespassing. The County did not represent Mr.
Bezona. Rather, the County was a party that, in a criminal context, brought a
complaint forward. The County wasn't representing one party or the other, as one
would typically do in a civil matter.
Dawson stated that one issue of this tideland matter is trespassing, and has
been addressed already. Gibson stated it was addressed in a criminal context. The
Natural Resources Committee, 3/20/2001, Page 9
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County represented the people of the State of Washington in a criminal
prosecution. In the course of a criminal prosecution, decisions will be made that
will favor one party or the other party. The County would not become involved in
the representation of a private party in a civil matter.
Dawson asked if the County prosecuted the tribal members. The County
attorney was involved. Gibson stated that the County attorney was involved.
Nelson stated water is a critical resource that needs to be protected. The use
seems excessive. He wanted to see that answered and would support the letter on
packet page 20.
Hoag stated she would support sending the letter. The County needs
clarification on this matter, since both wells are on fee land.
Gibson stated the County has jurisdiction over fee land to the extent that the
jurisdiction has been granted to the County. In matters of water drilling, the
County does not exercise jurisdiction. One gets approval from the state
Department of Ecology (DOE). The County does not have jurisdiction over well
drilling. There may be other activities associated with well drilling in which the
County becomes involved peripherally.
Hoag stated the County became involved last year when there were issues
with the wells in that area.
Dawson asked if the County is on the line to protect health and safety when
something is impaired.
Hoag stated the letter would assist the County in getting answers to those
questions.
McShane questioned whether there was a lawsuit filed on this issue.
Dawson stated there has been, but no one could get any information.
McShane stated the lawsuit and papers have been filed on behalf of the
Sandy Point Improvement Company.
Dennis Beeman, Sandy Point Improvement Company, 4431 Salt Spring
Drive, Ferndale, stated there has been a suit filed. They did not bring the water
issue into the lawsuit because it is a federal issue. Jurisdiction over the land is a
County and state issue. As it stands now, it has gone before a judge. They are
waiting for some information from the tribe on their water usage and withdrawal.
The Tribe is not furnishing that information to them or the court at this time. That
is one of the reasons they are requesting that information through this letter. They
would be able to receive the information from the Bureau of Indian Affairs (BIA).
When the well was originally drilled, the County issued a stop -work order. The tribe
disregarded the order, and the County did not pursue it. The Tribe is paying taxes
Natural Resources Committee, 3/20/2001, Page 10
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on the land. The state and County has jurisdiction over the permitting process.
The letter requests information from the BIA to see why there is an excess use of
water and what the water is being used for.
Gibson stated he is not speaking for or against the letter. He is cautioning
that the DOE has been insistent of late that Whatcom County not issue building
permits on the Lummi peninsula. The County has consistently said that this is the
DOE's business, not the County's business. The County is not going to deny
building permits if someone can demonstrate that he or she has an adequate
supply of potable water. This letter should be written in that context. The issue is
whether Whatcom County intends to exercise jurisdiction over land for purposes of
the issue of drilling.
Nelson stated that is not the intent of the letter. The intent of the letter is to
request information from BIA about the amount of water being withdrawn and
whether it is appropriate for the hatchery. It is merely for the point of information.
Nelson moved to approve sending the letter on packet page 20.
Motion carried 2 -1 with McShane opposed.
McShane stated that Councilmember Dawson had raised the issue of
tidelands with the state Department of Natural Resources (DNR) in the past. He
questioned their response.
Dawson state that two DNR staff members told her off the record that their
opinion was that the tidelands belong to the state.
McShane questioned the official opinion.
Dawson stated they have not taken an official position.
Hoag stated she wanted the letter on packet page 23 to the Secretary of the
Interior to be re- drafted. Portions of the letter sound as if the Council is making
certain assertions that it is not.
Nelson suggested just leaving out the assertions of the citizens from the
letter. Draft the letter in the context of the question of whether they would allow
the protective bulkheads, how the bulkheads would be allowed, and who would
have authority over the bulkheads.
Hoag stated those assertions provide additional information that may be
necessary. She approved of the first paragraph, without the word "unjust." She
was comfortable with the last paragraph. The remaining contents need to be
reworded.
Dawson stated she would wordsmith it this afternoon, before the evening full
Council meeting.
Natural Resources Committee, 3/20/2001, Page 11
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McShane asked if it is true that 12 homes were damaged enough in the
storm to be uninhabitable.
Earl Baker, 4175 Sucia Drive, Ferndale, stated there were 40 homes that the
County Public Works Department cited as being damaged. He understood that 12
of them were cited as uninhabitable.
McShane asked if they are still uninhabitable. Baker stated restoration is
done on a couple of them. Others are still in process.
McShane stated he saw one home that was red - tagged as having structural
damage. Baker stated uninhabitable doesn't necessarily mean the home is
structurally damaged. There could be debris in the home that needed to be
removed and broken windows.
McShane stated a substantial amount of work repairing bulkheads was done
without permits, and some bulkheads were done improperly. Of the 40 homes that
had damage, the ones with bulkheads had more damage. Baker stated the first
eight homes had bulkheads and were damaged.
Dawson stated that her son had to move out, and they did not have a
bulkhead.
Baker stated they might not have seen a lot of the damage because the
Public Works Department cleaned up debris. A significant amount of debris came
across the road. The residents have the opportunity to protect their property.
McShane asked if the state would handle trespassing on the tidelands any
differently than the federal government if it owned the tidelands. Baker stated it
would.
Gibson stated there is a significant difference in the minds of the landowners
whether there is state or federal jurisdiction.
(Clerk's Note: End of tape one, side B.)
Gibson continued to state that permit requirements don't change if the
jurisdiction changes. However, the likelihood of getting permits does to some
extent hinge on who owns the tidelands.
Dawson stated that the tribe has tried to assert jurisdiction over construction
on the tidelands. Gibson stated he'd heard that the tribe has asserted regulatory
jurisdiction over construction on the tidelands.
Baker stated the U.S. Army Corps of Engineers has jurisdiction up to the
higher high water mark, which are the navigable waters of the United States. Many
homes on Sandy Point have bulkheads that are not close to that higher high water
Natural Resources Committee, 3/20/2001, Page 12
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mark. Jurisdiction only comes into play when the bulkhead is within that higher
high water mark.
McShane stated the shoreline management program says that it is the
ordinary high water mark. He would say that most of the building on the bulkheads
that has been done has extended beyond the ordinary high water mark. He
assisted someone in getting a permit out there who's property had sustained
serious damage because the neighbor had gone well beyond the ordinary high
water mark.
Dawson stated the ordinary high water mark and ordinary high water are two
different things. The ordinary high water mark would be the vegetation line that
the DOE likes to use. The ordinary high water is the average of the tides over an
18 -year period, which is the seaweed line. The seaweed line is the line that the
Army Corps of Engineers uses.
Beeman stated that the ordinary high water line is in the area of 8.6 feet.
The closer they get to the harbor entrance, the more serious the problem is.
McShane stated the problem has been exasperated by un- permitted activities
out there, such as building bulkheads that puts rock out onto the tide flats.
Beeman stated it has also been exasperated by County and state permitted docks
and piers clear to the north. That is what starts this problem. Sandy Point was
created over a 2,000 -year period by a flow of sediment that sloughed off the bluffs
from the north. When they stop that sediment from the littoral drift from north to
south, it is a problem.
McShane disagreed.
Nelson stated it is a jurisdictional issue on managing the area. The County
needs to gather the information necessary to help maintain the environment and
also protect property. The citizens are asking who is going to have jurisdiction.
Beeman stated a statement made was that there was more damage
sustained where bulkheads were located. Where the majority of the bulkheads are
at is the area at Sandy Point that catches the brunt of the storms. The further
north one goes, the storms are not as hard. There are fewer and smaller bulkheads
to the north. If they remove the bulkheads in those areas further south, there
won't be any damage because there won't be anything left.
Hoag asked how many of the 40 homes had bulkheads. Baker stated that
approximately 75 percent of the homes damaged had bulkheads.
Hoag stated she supported the draft letter on packet page 24 with language
changes. This letter is drafted to reflect what residents say and believe. The
Council would ask that this be resolved, which is appropriate. She suggested
amending language in the first paragraph, just before the last sentence, "Residents
maintain that Tthe Lummi Tribe voted...." She so moved.
Natural Resources Committee, 3/20/2001, Page 13
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Nelson concurred. The language change does not require a vote.
Hoag moved to change language to the second paragraph, "As it relates to
tribes, we are informed that they must show..." and "...It is our belief that under
neither of these acts..." and "...The public testifies that they feels intimidated...."
She would approve sending the letter with those changes.
McShane stated he'd walked that beach many times, and has not felt
intimidated.
Hoag so moved.
(Clerk's Note: This motion was not voted on.)
Gibson stated he and Councilmember Dawson have long disagreed over what
the law is, pertaining the tidelands. He's expressed his disagreement with
Councilmember Dawson's conclusions and with the relevance of the cited laws. His
legal review of this leads him to a different conclusion than that of Councilmember
Dawson.
Dawson stated the property owners wanted to make a proposition to the
County to get a legal opinion. Baker stated that is correct. He is in communication
with former Assistant Attorney General for the State of Washington, Jim Johnson.
Mr. Johnson is preparing a proposal to substantiate the Sandy Point community's
statement. The community has limited resources, and proposes that the County
help pay for this legal opinion to settle the question once and for all.
Nelson stated the state needs the legal opinion, not the County, which
doesn't have the jurisdiction. The jurisdiction will be with either the state, the
federal government, or the tribes. They are the ones who need to do their own
legal research.
Hoag stated that is what these letters will hopefully do.
Hoag moved to approve the letter on packet page 24 with the suggested
amendments.
Motion carried 2 -1 with McShane opposed.
Hoag stated the Council is not taking a position here, but is requesting more
information. Those residents are Whatcom County residents out there, and they
should be represented. It's not a matter of taking sides, but that the resource is
properly protected for everyone.
Natural Resources Committee, 3/20/2001, Page 14
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ADJOURN
The meeting adjourned at 11:20 a.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dan McShane, Committee Chair
Natural Resources Committee, 3/20/2001, Page 15