HomeMy WebLinkAboutNatural Resources November 13 20011
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
November 13, 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:
L. Ward Nelson
Connie Hoag
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
2. WHATCOM COUNTY COMPREHENSIVE PLAN MINERAL RESOURCES
ACTION ITEM #11, STUDYING MINERAL RESOURCES (AB2001 -353)
Matt Aamot, Senior Planner, stated the State Department of Natural
Resources (DNR) did a study of Bellingham quadrangle for sand, gravel, and
bedrock resources. The DNR used a consistent methodology all over the state.
They were going to do the Mount Baker quadrangle also, but they had budget cuts,
so they don't plan to do the study now. The Surface Mining Advisory Committee
(SMAC) discussed this issue. The SMAC believes it is a higher priority to do further
study on the Bellingham quadrangle instead of the Mount Baker quadrangle. The
County Council appropriated $15,000 to partner with the DNR to do the Mount
Baker quadrangle study. Staff wants direction on how to pursue the study of
mineral resource in the County.
There is a Comprehensive Plan action item to do comprehensive aggregate
study by May 2002. The DNR indicated that the County has a 15 to 20 year supply
in permitted DNR sites. Some of those sites do not have County approval, or are in
Skagit County. The SMAC recommends doing a critical assessment of the
Bellingham quadrangle; looking at existing mineral resource lands (MRL's) to see
which are exhausted of minerals; determining the remaining supply of minerals in
existing MRL's; and looking at areas outside of MRL's that have high quality
minerals and should have a MRL status.
Most of the Mount Baker quadrangle is in the national forest. Last May, the
Forest Services said the County would have to show that there are no private sites
available for mining before the Forest Service would issue a permit to mine in the
National Forest. That may be difficult. Some of the people on the SMAC expressed
a concern about the distance.
Nelson moved to reallocate $15,000 from the Mount Baker quadrangle study
to the Bellingham quadrangle, per the SMAC recommendation.
Hoag stated the DNR's conclusion of there being 20 years of aggregate
available was due to a ridiculous threshold on the size of deposits. They only
Natural Resources Committee, 11/13/2001, Page 1
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looked at deposits over 160 acres. The information the DNR gathered was good
information. She asked the DNR for the same information on smaller deposits.
That information has not been given to her.
This money was agreed to as a compromise during the Comprehensive Plan
process because the Planning Commission determined that there should be no
mining on private farmland. The County Council Planning and Development
Council, which included Alvin Starkenburg, tried to allow mining in prime farmland.
The compromise was to do this comprehensive study. If they found that there was
no quality aggregate outside of prime farmland, then prime farmland might be
opened to mining. She's been pushing for funds to be budgeted for this study
every year, and it hasn't happened. Now the County has only seven months to
complete the study. The recommendation to take this money and do a critical
assessment based on the DNR information makes no sense at all. She was
surprised that taxpayers would be required to pay for a study of the industry. It is
not a wise use of the taxpayers' money, but she supported the compromise. They
should do this study the way it was intended, which is to look at all of the available
mineral in the County to find out where it is, what it is, how good it is, and whether
or not they have to go into prime farmland. Otherwise, don't waste taxpayers'
money.
Nelson stated he was on the Council at the time, and he didn't remember any
compromises. They tried to solve problems. Former Councilmember Starkenburg
had interest in mineral resources, but he was not a heavy participant. He
questioned Dan Gibson about whether this was a compromise. The critical issues
they were lacking at the time was information on where the mineral resources were
available.
Dan Gibson, Senior Civil Deputy Prosecutor, stated there was significant
disagreement among participants about whether there was adequate designation of
mineral resource lands. The study was a result of the problem. In any public
process there are different sides, and typically the result represents something less
than what either side wants.
Nelson stated Councilmember Starkenburg had an interest in mining
resources in agricultural lands. Councilmember Hoag has a keen interest in not
having any mineral extraction in agricultural lands. Therefore, they have two
extremes. They need to try to resolve the issue. That's why he supports getting
this resolved within the Bellingham quadrangle, where most of their mineral
extractions occur now and where the transportation issues are easier to resolve.
McShane stated it is important to concentrate on the Bellingham quadrangle.
He was not sure about setting aside money until they know what the scope is.
They don't have a scope or an approach. He would support putting together a
scope of work for what they will be looking at and the process. That could be one
of the sticky problems. He liked it that DNR did their study. It is a useful study.
The DNR is neutral in its approach. People will disagree on how they define a
significant deposit. He agreed with Councilmember Hoag that what the DNR
Natural Resources Committee, 11/13/2001, Page 2
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considers significant will not be found in Whatcom County. However, the data is
available to go through and identify areas that are significant to the county.
Right now, he wanted to work out a scope of work. He was not sure that the
scope of work should be created by the SMAC. A lot of it has to do with the
makeup of SMAC, because a number of them have the interest of the industry.
With DNR being unavailable, they have to think about who will come up with the
scope of work. The County has staff people that are knowledgeable on gravel
issues, including Matt Aamot. In addition, he is a geologist that is familiar with
mines. Doug Goldthorp also has experience with issues of enforcement. Roland
Middleton and John Thompson are also knowledgeable. A group like that should
approach the industry people, and have meetings with impacted neighbors. In
Whatcom County, the MRL's are not that great. The County can set aside areas
that may not be readily available now, but in many years down the road.
Hoag stated Mr. Starkenburg is a gravel owner with a vested interest. She
represents the farmers, and does not have a vested interest. That is not extreme.
During the Comprehensive Plan process, the farming community opposed having
mining in prime farmland. Lesa Starkenburg - Kroontje set up a meeting with the
Conservation Service, farmers, and gravel miners. They came up with this
compromise. The industry said there was not a sufficient quantity of aggregate
available to supply the county's needs. Documents were shown that there is the
necessary quantity, so the industry said there not enough that is quality. That is
why the study is framed around the term "construction quality aggregate."
If they are going to spend any money at all, spend it on the geographic
information system (GIS) maps that they referred to when they reviewed the DNR
study. DNR has the data available, but only the huge deposits were run on the GIS
format. Other deposits are available. If the County is going to identify those
deposits and prevent incompatible development from forming around them, it
needs to have that information. If they are going to spend money, spend it there
first. Doing a comprehensive study is not going to happen this year. She
recommended extending the deadline for a year to do the study right, or don't do
the study at all. She served on the Mineral Resource Advisory Committee of the
Land Use Study Commission. They discussed how the State sets aside mineral
resource lands. The ideal is to find the resources, identify them, and set them
aside as MRL's to prevent incompatible development from forming around them.
However, that is not what they've done in Whatcom County. Instead, they've had
people come forward and request that their property be an MRL. That is not what a
mineral resource land is supposed to be about. It's about setting aside future
resources for future generations. Councilmember McShane mentioned looking at
where the deposits are for the future generations, yet they can't do that in the
Bellingham quadrangle. They should do what the Comprehensive Plan calls for by
honoring the compromise between the farmers and the gravel industry. Study it
thoroughly, determine where the resources are and the quality of the resources,
and designate the areas accordingly. Otherwise, do not spend the taxpayers'
money on this.
Natural Resources Committee, 11/13/2001, Page 3
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Nelson stated there are different perceptions about what happened in the
process. He agreed that this issue is controversial. The public deserves getting the
process finalized. He understood Councilmember Hoag's concern about designating
areas as MRL's. Most counties placed MRL's where there are current existing
extraction sites. To move the issue forward, develop the scope of work. He wants
a positive scope of work developed.
He amended his motion to include someone on the scope of work committee
that is in the industry, and also include a representative from the community to
provide information. They need to do this as soon as possible, not in a year. The
planning process, once the scope is done, takes a long time to get someone on
board.
He questioned whether the DNR permits all sites, or only those of at least
150 acres. This is an essential resource that is needed in the community. Aamot
stated the DNR says there is a 15 to 20 year supply from all sites that are
permitted by DNR. He displayed a map showing the DNR - permitted sites.
Dawson asked if there is a way to keep the gravel for the community, rather
than have it sent across the boarder.
Gibson stated no. They talked about ways to structure extraction by
designation of zones and the size of zones, with an eye on keeping it local. Due to
the commerce clause, there are very limited ways in which one could keep the
resource locally. One would have to do it from a practical standpoint, but that is
hard to do. It is price driven. Legally speaking, they are not allowed to keep the
resource local. The one exception is Point Roberts. The County has installed limits
on gravel exportation.
Hoag stated the label on the map legend is misleading. Aamot stated they
can correct the labels. The County GIS staff just used the DNR labels.
Hoag stated Councilmember Nelson asked about the DNR threshold of 150
acres. That wasn't about a large active mine. That was about the size of the
deposit. There are more deposits than what DNR shows, because DNR uses 150
acres as a threshold. The Council talked with staff about running GIS on smaller
deposits so they can know where the deposits are and the issues surrounding those
deposits. That money would be well spent. Aamot stated the full Council needs to
give staff direction to do that.
McShane stated that the scope of work should be brought before the full
Council for approval. The study they do should look at bedrock as a potential
source. Protecting the bedrock areas might be critical, because Whatcom County
doesn't have very good bedrock for aggregate resources. The Mount Baker
quadrangle is mostly Forest Service land, a long distance away, and there is not
much there.
Natural Resources Committee, 11/13/2001, Page 4
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Nelson amended his motion to support the scope of work and form a
committee to develop the scope of work. Also, include the two other members.
McShane stated the scope should define where the deposits are only, and not
the issues. The committee might need to go to the industry to find out what they
have. He envisions something similar to what the DNR did, except taken a step
beyond to focus on smaller significant deposits. Get a map out to the people,
regardless of how the land is being used. Address the issues of where they are
going to protect areas from mining or allow mining. That is a policy decision, with
lots of input from citizens.
Hoag stated she preferred to have as much information available about what
will and won't work. She wanted to make certain there is additional mapping that
goes on that includes the smaller deposits. Also, the scope should include
information about the size and the quality of the deposit in one section and the
issues about the site in another section, for each site. That is the information that
policymakers need. She preferred that many of the issues be spelled out where
they are known from the beginning. During the public process, the public can bring
forward other issues. She encouraged that they include better information that is
available and to go down a few sizes on the deposits for gathering information.
They also need to know about the quality of the deposits and the issues around
extraction of the deposits. If they have that information available, they can make
an intelligent decision on MRL's. That information would be helpful to the public
also.
Nelson stated those issues can be addressed in the scoping process. He was
concerned about designating the entire county an MRL.
Hoag stated identifying the tiers only identifies the deposits of smaller sizes.
Nelson stated they need to discuss the makeup of the committee. He is
concerned that the process is being driven by the people in government. They
don't want the scope to be questioned before it is viewed.
McShane stated the question is who would bring forward a scope for policy
guidance for the Council.
Nelson moved to reallocate the $15,000 as a placeholder for the critical
assessment for the Bellingham quadrangle, which is option one listed on Council
packet page 28. The critical assessment is based upon the scope developed by the
scoping committee with members indicated by Councilmember McShane, and, in
addition, include one person from the industry and one person from the community.
Hoag asked for a friendly amendment to include two citizens. There is no
citizen representative on the SMAC because the citizen representatives felt overrun
by the industry. The makeup that Councilmember McShane proposed is planning
staff, a geologist, and an industry person. Because this is taxpayer funded, they
should include two citizens. They don't need an extra industry representative. The
Natural Resources Committee, 11/13/2001, Page 5
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industry has its lawyers with plenty of money to spend. They are over - represented
on the SMAC already. Also, the industry has too much weight in the Planning
Department. There are people who used to work in the Planning Department who
no longer do, because they were pressured out by the industry.
Nelson stated he did not accept the friendly amendment. The industry and
citizen representatives could be nonvoting.
McShane stated the scope would be brought forward to the Council.
Nelson stated he has no interest other than in trying to move the process
forward without one side or the other screaming foul.
Hoag asked for a friendly amendment to budget next year for the Mount
Baker quadrangle.
Nelson stated he would rather wait to see what comes out of the Bellingham
quadrangle study.
Hoag asked for a friendly amendment to include some things in the scope of
work that she mentioned.
Nelson stated it doesn't need to be in the amendment.
(Clerk's Note: End of tape one, side A.)
Nelson continued to state that the committee would look at everything and
come up with a well - balanced scope.
McShane stated he wrote down Councilmember Hoag's concerns, and the
committee will talk about them.
Nelson stated the Executive would appoint the industry and citizen
participants, with confirmation by the Council, per the County Charter.
Motion carried 2 -1 with Hoag opposed.
1. ORDINANCE AMENDING THE WHATCOM COUNTY COMPREHENSIVE
PLAN RELATING TO THREATENED AND ENDANGERED SPECIES
(AB2001 -310A)
McShane stated they left off with policy 2M -2.
Nelson moved to reinstate policy 2M -3.
(Clerk's Note: The committee took a one - minute break at 10:20 a.m.)
Natural Resources Committee, 11/13/2001, Page 6
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Aamot stated his wording in policy 2M -2 is different than the minutes from
the previous meeting. The committee's intent was to include the words "of
habitat," although it was not included in the motion. He included the words in the
current version of the ordinance that they are working on. Also, he will renumber
the policies when they are done.
Nelson restated his motion to reinstate policy 2M -3. They talked about
ensuring that existing land uses do not further degrade habitat. They can go
further by providing educational tools to enhance habitat. It is not regulatory, but
is a tool that is offered.
Motion carried unanimously.
Nelson asked what the quarter -mile designation is in policy 2M -4. Aamot
stated it is not scientific. They wanted to have a tool to make property owners
aware that they are building in the vicinity of threatened and endangered species.
Nelson stated that needs to be put above so it applies to all policies.
Hoag stated it is just for clearing and development. The quarter -mile
boundary makes sense to alert people.
Nelson questioned where the County is alerting people and ensuring that new
and existing land uses do not degrade habitat.
Hoag stated the County does that by looking to see if someone has a use
that might degrade a habitat.
Nelson asked how that would be defined. Aamot stated that when the
landowner comes in for a permit, there would be conditions placed on the permit.
The owner will become aware at that point.
Nelson stated he doesn't like arbitrary regulations. Aamot stated the
quarter -mile designation is arbitrary. All staff does is notify the landowner that
threatened and endangered species are nearby.
Nelson questioned whether there is something the landowner has to do.
Aamot stated the federal government says the landowners cannot take a listed
species. There cannot be sediment that goes into the stream that kills fish eggs.
Nelson questioned whether the staff would identify specific actions that could
be taken from the development. Aamot stated they have requirements for
sedimentation control in County ordinances.
Nelson questioned whether that is the same thing that would be done by
someone who lived farther than one - quarter of a mile from a stream. Aamot stated
they are only trying to alert people nearby.
Natural Resources Committee, 11/13/2001, Page 7
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Nelson stated this would have impacts on many people. They have to be
prepared about what the County specifically means when it places this note on all
permits. Aamot stated all they are doing is providing people the information.
Some people may not know.
Nelson stated he was not sure about what the note accomplishes. Aamot
stated the note provides information and education.
Nelson questioned whether the note is the information and education
process. Aamot stated it is.
Hoag stated the Planning Commission added the term, "as shown on the
County fish distribution map." She questioned the significance of adding that term.
Aamot stated the map is updated periodically. The Planning Commission wanted
certainty that people are being notified of a specific thing. The staff will have
certainty about what its responsibilities are.
Hoag stated there were news articles last year about salmon spawning in
new areas near Lynden. She questioned whether the fish map would include that
area. Aamot stated it would. The map includes migratory corridors, not just
spawning areas.
Nelson moved to reinstate and amend policy 2M -5. He would like to leave it
open regarding clustering, so they can get the best possible plan for protection.
Come up with a plan that addresses the issue, which is protection of the stream.
He is concerned about requiring clustering. Aamot stated the purpose was so that
the stream could be maintained in a reserve tract.
Nelson stated the stream locations vary by site. Have the flexibility that a
short -plat is designed to protect the fish habitat, if it is feasible. Use best
management and stream practices to protect stream habitat.
McShane stated that in most cases, clustering should be the option to be
pursued.
Nelson agreed, but it may not be the only or best option. Stormwater from a
cluster development may be more intensive than if the development was spread
out. He moved to reinstate and amend policy 2M -5.
McShane suggested "Require subdivisions and short plats to be Clustered
designed in a manner to protect fish habitat when a stream or river that contains
threatened or endangered fish species passes through the site. The intent is to
maintain the stream or river in the reserve tract, thereby assuring adequate
riparian buffers."
Nelson agreed to Councilmember McShane's recommended language for his
motion.
Natural Resources Committee, 11/13/2001, Page 8
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Sylvia Goodwin, Planning Division Manager, asked that the committee also
add the term "water quality" to the language. They are different, but related.
Nelson questioned whether there are specific best management practices or
designed planned units that can do that. Goodwin stated staff will work on them.
Nelson questioned whether the person proposing the subdivision would have
to do that. Aamot stated subdivisions have to comply with Comprehensive Plan
policies. He was not sure if it is in the approval criteria for short - plats.
Hoag stated the second sentence has to be adjusted.
John Thompson, Endangered Species Act Resources Planner, stated much of
the wording ends up being specific to threatened and endangered species. The
critical areas include fish species. Include wording about the river or stream
containing fish, including threatened or endangered species, rather than identifying
them exclusively. Critical areas are divided into fish bearing streams or non -fish
bearing streams. The question throughout this ordinance is how narrow or broad
they want to be.
McShane stated it would be a way to avoid future listing.
Nelson stated they should maybe worry about what is good for all fish and all
water in the county, rather than worry just about threatened and endangered
species.
McShane stated that is why he suggested changing the wording in the title.
They should look beyond what is listed.
Nelson stated that is a regulatory step that will have huge impacts.
Thompson stated there are larger objectives for clean water and healthy species.
Often, the threatened and endangered species stuff gets added on to provide the
connection. However, they are focusing on something larger than that.
Nelson stated he liked adding the term "water quality." Thompson stated
they want to protect water quality and stream functions.
McShane restated the wording to reinstate and amend policy 2M -5 including
the wording suggested by Ms. Goodwin and Mr. Thompson, "Require subdivisions
and short plats to be cl steTed designed in a manner to protect fish habitat and
water quality when a fish - bearing stream or river that centains threatened
endangered fish species passes through the site. The to Maintain the
stream or rover On the reserve tract, thereby assuring adequate riparian buffers."
Nelson questioned whether all fish - bearing streams are mapped. Aamot
stated they are.
Natural Resources Committee, 11/13/2001, Page 9
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Nelson agreed to accept the Councilmember McShane's language as his
motion.
Motion carried unanimously.
Hoag stated she agreed that they shouldn't require clustering if a better
alternative is available. However, they eliminated the second sentence and the
provision for having a reserve tract with riparian buffers. She suggested adding
language to policy 2M -5, "...passes through the site. Where possible, encourage the
stream or river to be placed in a reserve tract, thereby assuring adequate riparian
buffers."
Nelson questioned how staff would administer the policy if it only contained
the first sentence. Aamot stated long plats go to the Hearing Examiner. One of
their approval criteria is to conform to the Comprehensive Plan. The Hearing
Examiner would evaluate that and get recommendations from County staff and the
Department of Fish and Wildlife. The Hearing Examiner might incorporate those
recommendations as conditions of approval. With short plats, it is trickier because
it is an administrative process. An intent might help.
Hoag stated the language no longer encourages a reserve tract. She
suggested adding language to policy 2M -5, "...passes through the site. Encourage
the use of a reserve tract to maintain the stream or river, thereby assuring
adequate riparian buffers."
Nelson stated that staff would interpret the language as protecting the
stream by encouraging the use of reserve tracts. They would use those tools
anyway. He didn't want to lock someone into one action.
Hoag stated that is why she suggests using the word "encourage." That
doesn't lock anyone into anything. Aamot stated that if someone comes in with a
proposal that is not clustered, staff would be hard - pressed to say that the applicant
has to do it, if the language says "encourage." Staff could provide education
materials.
McShane questioned whether clustering would be easier when implementing
this policy and creating design standards to protect fish habitat and water quality.
Aamot stated it definitely would.
McShane stated that following this policy would create an incentive to cluster.
Aamot stated they may be able to do specific incentives. If the language says
"encourage," the staff can explain to people the benefits of clustering. However,
people would not be forced to cluster.
Hoag moved to amend policy 2M -5, "...passes through the site. Encourage
maintaining the stream or river in a reserve tract or easement, thereby assuring
adequate riparian buffers."
Natural Resources Committee, 11/13/2001, Page 10
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McShane stated it is best to leave this alone. Clustering is going to be one
part of the policy for designing the protection of fish habitat and water quality.
Hopefully, there will be other options also.
Motion failed 1 -2 with Hoag in favor.
Nelson stated they need to look at policy 11K -4, which he read into the
record. Include using incentive programs in policy 2SS -1 to reflect voluntary
restoration. Somehow, they have to put more teeth into encouraging voluntary
restoration. Policy 11K -4 is a good idea. They can look at other mechanisms also.
There may also be other tools the State can look at. He moved to amend policy
2SS -1, "Protect and encourage voluntary restoration... and aquifers through
education and incentive programs. For willing landowners,..." Aamot stated that
would work for the staff.
Motion carried unanimously.
Nelson stated he considered amending policy 2SS -1 to include the Building
Industry Associations (BIA's) request for fair market value.
Hoag stated it is not necessary, due to the staff's response. The provision
doesn't require anyone to sell his or her property. It simply indicates that the
County may negotiate to acquire key properties. It doesn't compel anyone to sell
property at a price they think is unfair. Also, people may desire to sell at bargain
prices, such as was done with the Nessett Farm. This is only for willing landowners
who want to participate.
Nelson stated he had a question on policy 4L -2.
McShane moved to accept the staff's recommendation for policy 4L -2.
Hoag asked the difference between what was there and what is proposed.
Aamot stated the staff proposed that they not degrade habitat. The argument is
that when there is a project, some degradation will occur. They are trying to get
the best results they can.
Hoag stated the language is subjective. Aamot stated the BIA brought up
that concern as well.
Nelson stated his question was how they determine the best results. Aamot
stated the BIA brought up that concern and said that it is difficult to have zero
impacts.
McShane moved to approve the language suggested by staff in their memo
responding to the BIA concerns of policy 4L -2, concern number ten, which is to
replace the current language with, "Projects selected for the Six -Year Capital
Improvement Program should not degrade habitat for threatened and endangered
species."
Natural Resources Committee, 11/13/2001, Page 11
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Motion carried unanimously.
Nelson questioned policy 4L -3. He questioned the difference between the
language "adjacent to" and "in direct contact with." Aamot stated a road or a
bridge, for example, would not have direct contact with a stream.
Hoag stated the language specifies the habitat, not the stream.
Aamot stated these are County projects. The BIA said the County has more
responsibility on their proprietary and regulatory functions.
McShane stated staff made a recommendation to add language so the
County Council would determine when such restoration is financially feasible in the
Six -Year CIP and the County budget.
McShane stated he liked the recommendation.
Crawford asked if the Capital Improvement Program (CIP) includes buildings.
Aamot stated it does.
Creek.
Crawford stated the County acquired the Civic Center adjacent to Whatcom
(Clerk's Note: End of tape one, side 8.)
Crawford stated the proposed language says the County would have to
restore the habitat, not just protect Whatcom Creek.
Hoag stated they would have to strive to do that.
Crawford stated this is an instance when it makes more sense to use the
word "protect" rather than "restore."
Hoag stated they don't protect degraded habitat. The County should make
an effort to restore the habitat. She liked the staff's original language.
Nelson moved to amend policy 4L -3, "...should strive to resteFe degraded
protect habitat ... such habitat. The County Council will determine when such
protection is financially feasible through adoption of the Six -Year Capital
Improvement Program and the County budget." Restoration is important in
degraded habitat, but the County has other streams that may or may not be
degraded. They should always strive to protect those habitats. If they included the
words "restoration" and "degraded," he would need to know the definition of
"degraded." Aamot stated there are indicators of what "degraded" means.
Protection is addressed in policy 4L -2.
Natural Resources Committee, 11/13/2001, Page 12
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McShane questioned whether this is for a project that has contact with the
habitat. Aamot stated it is. It is a policy decision about whether or not the County
wants to get involved in restoration.
McShane stated he wanted to add who determines whether or not it is
feasible.
Hoag stated that when they talk about protection, the County should do that
anyway. When they add the caveat of the Council deciding when it is feasible, they
are excusing themselves where they would not excuse an ordinary citizen. The
point of this policy is to restore habitat in those instances when County capital
projects come in direct contact with habitat. The Planning Commission was wise to
narrow it down to when it is in direct contact. Staff has a good recommendation on
determining when that is financially feasible. It is up to the Council to determine
financial feasibility when it goes through the Six -Year CIP. Keep the language.
Crawford stated he disagreed that it is a policy issue of whether or not the
County wants to restore habitat. The County will find ways to restore habitat. The
Comprehensive Plan direction does not require restoring habitat if it is inappropriate
in particular situations. Using the Civic Center as an example, the County may look
at the City of Bellingham's efforts for habitat restoration on Whatcom Creek, and
decide that the County does not to get involved. Do not characterize this as the
end -all policy decision of whether or not the County is going to participate in
restoration. In other areas, the County may choose to do that. This should not be
the defining moment for the County on whether or not it participates in habitat
restoration.
Nelson stated he understands the concern on restoration. He is concerned
about putting that language in there when they don't know to what condition they
are restoring. Aamot stated it is a matter of County discretion. An analogous
situation is in the Six -Year Road plan. The County proposes to replace several
culverts every year.
Nelson questioned what other tools they would use if they need to protect
streams or habitat. Aamot stated that if the County has a park with an existing
buffer, it would have to be maintained per the shoreline program and critical areas
ordinance.
Motion failed 1 -2 with Nelson in favor.
McShane moved to add a sentence to the end of policy 4L -3, "The County
Council will determine when such restoration is financially feasible through adoption
of the Six -Year Capital Improvement Program and County budget."
Hoag stated she is in favor of the motion. This policy asks the County to
strive to restore habitat and when the County Council can determine when it is
financially feasible.
Natural Resources Committee, 11/13/2001, Page 13
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Nelson asked if these are the same goals as what they decided to do with the
private landowners. Aamot stated goal 2M says, "encourage."
Nelson stated this has to go through the State and federal governments. He
questioned whether this language requires the County to do things to restore
habitat. Gibson stated it does not.
Aamot stated the definition of restore that this committee approved
previously says that restoration is undertaken voluntarily by the County. The word
"voluntarily" qualifies what restoration is. It is not something that someone else
will force the County to do.
Motion carried 2 -1 with Nelson opposed.
McShane restated the motion that was just approved to add a sentence to
the end of policy 4L -3, "The County Council will determine when such restoration is
financially feasible through adoption of the Six -Year Capital Improvement Program
and County budget." He questioned whether the County is already doing this.
Aamot stated the Parks Department or Land Trust did plantings on the south fork of
the Nooksack River and on the Deming Eagle Park. The County has been
maintaining those trees.
McShane questioned the language in goal 5A. He asked where the rationale
for 55 kV came from.
Sylvia Goodwin, Planning Division Manager, stated she believed it might be
the threshold when an applicant has to get a conditional use permit.
Nelson questioned policy 5A -7. He didn't like the negative "not adversely."
The County shouldn't restrict the utilities, but the utilities should enhance stream
flows. He questioned whether that is possible to enhance stream flows by putting
up a dam.
McShane stated people argue that it is possible. There is a lot of flow
enhancement on the Columbia River.
Nelson stated one might be able to use dams to control floods, and also use
the water to enhance stream flows in the summer.
McShane stated this policy is just regarding utilities and power generating
utilities. Sometimes that doesn't coincide with doing what Councilmember Nelson
proposes. It would be a secondary feature.
Nelson suggested reinstating and amending policy 5A -7, "Ensure that utilities
and power generating facilities are sited where they will not adveFsely
enhance stream flows...."
Natural Resources Committee, 11/13/2001, Page 14
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McShane stated that would require the utilities to prove that the dam would
be a benefit to the stream.
Nelson stated it would then be easier to not include the policy at all. He does
not have a motion.
McShane stated all that policy 5A -7, which was removed, does is make sure
that the utility does not have a negative impact to the stream. It does not require
that the utility be a positive benefit to the stream.
Hoag stated don't strike the policy. The policy originally said that the utilities
would be sited to not adversely impact stream flows needed for the species. It was
overly restrictive. One could have a broad definition of an adverse impact. Better
define "adversely impact" by saying the utility would bring the flow below minimum
levels needed to sustain fish, including threatened and endangered species.
McShane stated the language should not be about the flows. They are
talking about threatened and endangered species. They are not talking about fish
in general. The goal is to not locate the facilities where they will harm fish.
Hoag moved to reinstate and amend policy 5A -7, "Ensure that utilities and
power generating facilities are sited where they will not adversely impact reduce
stream flows below minimum levels needed to sustain fish, including f0f threatened
and endangered species." They don't want to put a power plant on a site where it
will reduce the stream flows below the minimum needed for fish, even if they are
not endangered.
Thompson suggested language, "Ensure that utilities and power generating
facilities are sited where they will not adversely impact stream flows necessary to
maintain an ecological flow regime necessary to maintain habitats for fish, including
needed fe- threatened and endangered fish species." The phrase "ecological flow
regime" hooks this to the watershed management project. The instream flow work
that has been done to date will wrap up next year. It will identify a range of flows
needed to maintain different fish species and life stages. It also refers to channel
maintenance.
Nelson asked if there is a definition for ecological flow. Thompson stated it is
defined in the technical scope of work for the watershed management project. It
also gives examples. The specific ranges of flow for streams will be determined
through the watershed management project.
Nelson questioned who defined the term. Thompson stated the folks at Utah
State University (USU) defined it.
Nelson stated this goes into their policies and goals. It does not have a
number, and it is merely a definition provided by a university and hasn't been
accepted by this Council.
Natural Resources Committee, 11/13/2001, Page 15
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McShane stated they can't put a number on every stream. The attempt is to
evaluate what flows are ecologically needed. That includes instream flows and
making sure there is enough water. Thompson stated one of the reasons the
Planning Commission was uncomfortable with this language was because the
County does not set instream flows. The County does have an obligation under the
State Environmental Protection Act (SEPA) to evaluate the cumulative effects of
things. This language would hook the policy into the more comprehensive process,
so the decisions are not made in isolation.
Goodwin stated she had an answer for Councilmember McShane's question
regarding the reason for specifying 55 kV in goal 5A. The 55 kV or greater is the
threshold in the zoning code that separates distribution lines from transmission
lines. That policy was probably written to look more at utility corridors and other
issues, not the Endangered Species Act (ESA). The Council will see amendments to
that section from the Utility Advisory Committee. These policies will be amended.
The 55 kV was stuck in as a heading, but never implemented in a policy later.
Nelson asked if they need policy 5A -7 to move goal 5A forward. Goodwin
stated she didn't know that it is necessary. However, when one is getting a
conditional use permit for a 55 kV or greater power line, they would look at the
Comprehensive Plan policies and consistency. Maybe there would be a reason to
condition a permit with something that would maintain stream flows.
Nelson asked if that would be defined in the process. He questioned whether
the County has a clear process. Goodwin stated the Utility Committee thinks they
have a clear process. She didn't know that this policy would provide more clarity,
but it would provide another parameter to look at. Right now, the stream flow
impact is not one of the things the Hearing Examiner would look at when evaluating
a utility proposal.
Hoag stated it is a clear process for determining appropriate locations. That
is the key, and that is why this is important.
Nelson questioned whether the County has developed ecological flow
regimes. Staff responded (inaudible).
Hoag stated she is uncomfortable with Mr. Thompson's language. When they
talk about maintaining an ecological flow regime as a policy, she didn't know what
she is approving. When the definition has been determined, that would be the
appropriate time to adopt it into the policy. She preferred the language she
recommended. The point is to protect the level of the water in the stream for the
fish. She is willing to let the applicant and opponents argue before the Hearing
Examiner about what those appropriate flows are because the County doesn't have
anything well defined at this point.
She restated her motion to reinstate and amend policy 5A -7, "Ensure that
utilities and power generating facilities are sited where they will not rely
Natural Resources Committee, 11/13/2001, Page 16
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+maet reduce stream flows below minimum levels needed to sustain fish, including
€e-r threatened and endangered species."
McShane stated that language oversimplifies what the fish need. There are
other things besides a minimum flow that fish need. They sometimes need a higher
flow. The term "flow regime" would be more appropriate.
Nelson stated they are using an arbitrary and capricious type of decision
making method by putting the Hearing Examiner in the position of deciding what
that level is. No one knows what the levels are. He questioned whether they are
going to have something specific that people can work with. If they are going to
have ecological flow regimes, then put it in the language so people know.
Otherwise, scratch the entire policy.
Motion failed 1 -2 with Hoag in favor.
Nelson stated he is opposed because he didn't like the idea of this going to
the Hearing Examiner.
McShane moved to reinstate and amend policy 5A -7, "Ensure that utilities
and power generating facilities are sited where they will not adversely impact
tFean, flews the ecological flow regime needed for threatened and endangered fish
species."
Nelson questioned whether the ecological flow regime would be clearly
defined. Thompson stated it would be defined, but not until June 2003, when the
watershed management plan will be available.
Nelson questioned whether this impacts streams with and without
endangered species. Thompson stated it does.
Nelson questioned the process to develop the definition of the ecological flow
regime. Thompson stated there are technical studies under way currently by USU
on a contract with the water resource inventory area (WRIA) 1 Joint Board. It goes
through the WRIA process. The technical scope of work has been approved. The
specific study design has been approved. They are currently measuring instream
flows at a variety of approximately 30 sites around the county. They are also
gathering data that allows them to take site - specific data and extrapolate to areas
where they haven't measured the flows. They will compare the ecological flow
regime, their measurements, with the flows that have been set by the State
Department of Ecology in 1986. This information doesn't provide a single answer.
It tells them what the management options and trade -offs are to meet the
biological, chemical, and physical functions of the stream.
Nelson stated the ranges would provide flexibility. Thompson stated they
would. Within the watershed management plan, the Council will approve a range of
flows, which provide a range of functions, for streams and creeks. There are
Natural Resources Committee, 11/13/2001, Page 17
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definitions of ecological flow regimes, but there will not be specifics assigned to this
basin until 2003.
Hoag stated the language suggested by Mr. Thompson is different from the
current motion. She asked for a friendly amendment to substitute the phrase
"adversely impact" with "would not reduce stream flows below levels necessary to
maintain an ecological flow regime."
McShane questioned whether the term "adversely" is linked to ESA. Gibson
stated "adverse" is not, in this context, limited to endangered species, unless it
specifically says that.
McShane stated it does say that. They are not counting all fish. Gibson
stated "adverse" is not a term apart.
Hoag stated the term "adverse impact" is subjective. The phrase "below a
level necessary to maintain an ecological flow regime" is specific.
McShane stated it is defined as the ecological flow regime needed for
threatened and endangered species.
Nelson questioned which language is easier to determine for the Hearing
Examiner, if it makes a difference. Gibson stated that sometimes they are talking
about minimum flows. Other times they are talking about maximum flows. The
concern is about more than minimum flows, and includes maximum flow and the
velocity. He preferred "flow regime" because it includes everything about water,
including volume and velocity. This language will introduce this complex concern to
the decision - maker.
Hoag questioned how they would define the term "adversely impact." Gibson
stated as a practical matter, he would look at the needs of the fish, the realities of
power generation on a stream, and how one minimizes the effects of power
generation in relationship to what fish need. A question to be answered is whether
the effects can be sufficiently minimized to make this worthwhile.
Hoag questioned whether the term "adverse impact" means that there can
be no negative impact at all. Gibson stated they are going to hear the argument
that any impact, no matter how minimal, is negative.
She offered a friendly amendment to the motion to insert and amend policy
5A -7, "Ensure that utilities and power generating facilities are sited where they will
not adversely impact sure~~ fie the ecological flow regime needed for fish,
including threatened and endangered species." They don't want to end up with
future listings because they are focused now on existing listings.
McShane accepted the friendly amendment.
Natural Resources Committee, 11/13/2001, Page 18
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Nelson stated he would vote against the amendment because it goes beyond
the scope of what they have information on.
Motion carried 2 -1 with Nelson opposed.
McShane stated this will be held in committee and scheduled at the next
committee meeting.
ADJOURN
The meeting adjourned at 11:50 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dan McShane, Committee Chair
Natural Resources Committee, 11/13/2001, Page 19