HomeMy WebLinkAboutNatural Resources November 27 20011
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
November 27, 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
(Clerk's Note: Due to audiotape malfunction, there is no audiotape recording
of this meeting. The minutes are taken from the clerk's notes.)
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. ORDINANCE AMENDING THE WHATCOM COUNTY COMPREHENSIVE
PLAN RELATING TO THREATENED AND ENDANGERED SPECIES
(AB2001 -310A)
McShane moved to amend goal 6T, "e Transportation systems including
roads, de net should avoid adversely impacts to habitat of threatened and
endangered fish and wildlife species, and restore such habitat when possible. For
County transportation projects, the County Council will determine when such
restoration is financially feasible through adoption of the six -year transportation
program and the County budget."
Dan Gibson, Senior Deputy Prosecutor, stated the language refers to the six
year program and the budget. The one piece that wasn't mentioned is the annual
road program. It is in that one -year program that the rubber meets the road.
Nelson suggested using the one -year program instead of the six -year
program. Gibson stated the six -year program queue's it up, and the one -year
program is the funding. Include the one -year program in the language.
Nelson suggested including the one -year road program in the language of the
motion.
McShane accepted the friendly amendment to amend goal 6T, "€esuFe
Transportation systems including roads, de net should avoid adversely impacts to
habitat of threatened and endangered fish and wildlife species, and restore such
habitat when possible. For County transportation projects, the County Council will
determine when such restoration is financially feasible through adoption of the six -
year transportation program, the annual road construction program, and the
County budget."
Motion carried 2 -1 with Hoag absent.
Natural Resources Committee, 11/27/2001, Page 1
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McShane moved to amend policy 6G -1 to the staff's recommendation. "...at
every opportunity. For County transportation projects, the County Council will
determine when such restoration is financially feasible through adoption of the six -
year transportation improvement program and the County Council."
Motion carried 2 -1 with Hoag absent.
Nelson asked why staff doesn't support the Building Industry Association's
(BIA's) response to policy 6G -3. Aamot stated avoidance is sometimes the best
policy. The BIA also included the word "encourage" mitigation, but sometimes
mitigation is required. The staff's wording would include the possibility of
mitigation banking.
Nelson asked how to develop mitigation policies. Administratively it is easier
to avoid. Aamot stated it is. That is what the Engineering Division is already doing.
Getting federal permits takes a long time. Wetland mitigation banking has been
talked about, and may come about in the next couple of years.
Nelson asked if this is dealing with transportation sections. Aamot stated
yes. This chapter is for the transportation system.
Nelson asked if the current language in Goal 8E allows use of conservation
futures funds. Aamot stated it does.
Nelson asked for language to provide incentive programs for the agricultural
community to do this voluntarily. Aamot stated they could reference those ideas
and programs. He didn't know how the transfer of development rights (TDR)
program is being crafted.
(Clerk's Note: Councilmember Hoag arrived at 9:45 a.m.)
Aamot stated there is similar language in policy 2SS -1, "through education
and incentive programs."
Nelson moved to amend Goal 8E, `...species through education and incentive
programs." The BIA was concerned about the expense, but he agreed with the
staff that this is voluntary.
Motion carried unanimously.
McShane asked about Skagit County's difficulty with agriculture and buffers.
Gibson stated their difficulty relates to their critical areas ordinance. Challenges
under the growth management scheme are a function of the level of interest on the
part of various constituents. Skagit County has conflicts between the agricultural
community and the plan for agricultural buffers by certain constituencies in that
county. A significant reason for their difficulty is from the fact that exemptions
from coverage are very broad. Everything west of the freeway is considered to be
tidally influenced and exempt from coverage. The real issue may not be the buffer,
but the exemptions. It may be that, if the exemption was not as broad as it is,
then a lesser buffer more broadly applied would satisfy the constituencies bringing
Natural Resources Committee, 11/27/2001, Page 2
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forward the challenges. Much of this has to do with who chooses to pick a bone
with the county. Another county right next door might do the same thing, and not
receive a challenge. A difficulty is that they are speculating on the science. People
in the agricultural areas are saying in good faith that a lesser buffer will do, but
aren't demonstrating the science.
Hoag asked about demonstration buffers in Whatcom County. Gibson stated
there are areas where that is happening privately. Stream size plays a big role in
this. There is not a systematic program to study buffer widths, however they have
more information now than fifteen or twenty years ago.
McShane suggested new policy "8E -6: Encourage the maintenance and
operation of drainage systems such that habitat impacts from such systems are
reduced." He is concerned about agricultural areas that are dependent on drainage
systems. Have a policy to maintain these systems. If they don't maintain these
systems, then they are talking about good size buffers.
Nelson asked if the motion is to help farmers maintain their drainage ditches.
McShane stated an example is that some of the drainage systems, such as
Bertrand Creek, have drainage ditches that feed into it. In June, the river level
rises and the floodgate has to be closed so the fields don't flood. They need to
have a policy to deal with issues. There was some damage from flooding of
Bertrand Creek, and repair on the floodgate. It was a mixed issue of flood and also
drainage. He's hearing from farmers that Scott Ditch requires buffers. If it isn't
maintained, it's not so great for fish either, because it will fill with reed canary
grass.
Hoag suggested a friendly amendment, °FedueeQ minimized."
McShane accepted the friendly amendment.
Hoag suggested friendly amendment °8E -6: Encourage the maintenance and
operation of drainage systems such that habitat impacts from such systems are
minimized and agricultural uses remain viable." It would be beneficial to both
agriculture and habitat.
Gibson stated the Comprehensive Plan addresses the desire to maintain
adequate land base for agricultural purposes. It is a particular problem that is
identified. Most good agricultural land lies in areas where drainage is critical. One
issue that came up during the Comprehensive Plan process was whether they can
identify areas which are critical fish habitats and others that are simply just
drainage. If there is water, they will find fish in the most unlikely places. A
question is whether they can say there are places where fish can live, but because
of the agricultural importance, not designate it as fish habitat. Other places are
important to the maintenance of the species. He didn't know if something like that
could be done, but it would be helpful so as not to argue with the Department of
Fish and Wildlife on every waterway. Fish may not be an issue, but they may have
to reduce turbidity to reduce downstream impact.
Natural Resources Committee, 11/27/2001, Page 3
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John Thompson, Resources Planner - ESA, stated it is possible from a
technical perspective to stratify a drainage and look at the different functions it
provides and different ways to maximize the fish benefit while providing for
agricultural operations. It is not as straightforward as determining which
waterways are drainages and which are streams. There are drainage systems that
haven't been maintained for 15 years, but have a minimal buffer that is enough to
keep the reed canary grass out. In the long term, it reduces maintenance and
impacts to fish habitat. In those types of systems, even if it is a manmade ditch,
they may find Coho rearing there in the wintertime. Over time, they can develop
some pilot areas and a strategy. It is important to encourage folks to use fish -
friendly techniques. That is not at odds with maintaining the drainage functions.
Other areas such as Bertrand are more complicated.
Gibson stated these issues are being worked out practically, but not always
well in the interface between the drainage districts, County flood staff, and the
Department of Fish and Wildlife. There is no intermediate agency looking at this
system objectively to best recognize agricultural and fish concerns. It is happening
on a permit -by- permit basis, which isn't efficient and doesn't take the system as a
whole into account.
Thompson stated that is a fair statement. Ultimately, they need to measure
whether or not they are meeting water quality standards. From a fish recovery
standpoint, the question is whether the cumulative benefit meets that objective.
That is the measure they need to think about.
Hoag stated much of Mr. Thompson's comments reflect what has been going
on, on the ground. Farmers have come forward and said that tree planting is fine,
but they still need to get in and dredge to maintain. There are things the County
can do to make that work while still benefiting the fish. Councilmember McShane's
point is that they need to maintain the operation of this, as long as systems are
beneficial to fish habitat.
Gibson stated the practical question is what that means for the County
institutionally. The question is what will look different in terms of what County
employees will do.
Hoag stated the County would work with farmers to require trees on one side
of a ditch only, for example. Gibson stated the County doesn't issue a Habitat
Protection Act (HPA) permit. The Department of Fish and Wildlife does.
Hoag stated the County could work with the State on that.
McShane restated and amended his motion, "8E -6: Encourage the
maintenance and operation of drainage systems such that habitat impacts from
such systems are minimized and agricultural use remains viable."
Motion carried unanimously.
Hoag referenced policy 8E -3, and asked for an explanation of the addition of
the language "including herbicides and pesticides." Aamot stated the Planning
Natural Resources Committee, 11/27/2001, Page 4
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Commission wanted to ensure that it is clear that usage of herbicides and pesticides
is included in integrated pest management. The language was not in there
originally.
Hoag asked if it decreases encouragement of using IPM. Aamot stated there
are other methods that could be implemented, such as crop rotation. Staff didn't
think the language was necessary, but the Planning Commission wanted to make
sure it is included in the options.
Nelson asked the vision of the word "adequate" as referenced in policy 8I -1.
Aamot stated most forest practices are regulated by the State Department of
Natural Resources (DNR). DNR has complex rules for establishing adequate
buffers. There was a change in the state law in 1997 that delegates some class IV
forest practices to the County, if there is a conversion or if the forest practice is in
an urban growth area (UGA). The County standards are supposed to conform to
the DNR buffer requirements. In that policy, "adequate" means meeting the buffers
specified in the DNR forest practice rules. As it relates to mining, the critical areas
ordinance will determine buffers, which are now 100 feet.
Nelson asked if there are laws and policies to provide that answer to the
definition of adequate. Aamot stated there are.
(Clerk's Note: End of tape one, side A. The committee took a brief break at
10:20 a.m.)
Nelson stated a concern is that forest practices do not adversely impact
habitat. That is a noble goal, it can be argued that forest practices have some sort
of impact. On the other hand, forest practices can sometimes enhance streams.
He was concerned with language "adversely impact ". He moved to amend goal 8I,
"...forest practices should avoid do not adversely impacts to the habitat of...." That
is the same language that staff recommends. Aamot stated staff agreed with BIA's
concern.
Hoag stated she was concerned that they are backing away too far. That is
pretty weak language.
Dawson suggested, "...forest practices should avoid significant impacts..."
Aamot stated the term "significant impacts" has a particular meaning for the State
Environmental Protection Act (SEPA). Environmental Impact Statements (EIS's)
have to be prepared for significant impacts, which is a minority of projects.
Hoag stated the goal, as it is worded now, really is what they should be
doing, but she understood the BIA concern. She asked what the consequence is if
a forest practice does not avoid impacts.
Nelson stated the policies are what they would use to maintain the goal.
Motion carried 2 -1 with Hoag opposed.
Natural Resources Committee, 11/27/2001, Page 5
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Hoag stated that whenever there is high water in the Nooksack River, it is
very muddy. She asked the cause and if it can be avoided. Thompson stated that
with forest practices, certain things can be done and are being done to meet the
policies. Part of the muddy water is that the system naturally produces sediment,
and also current and historic activities have boosted that level of sediment. With
forest practices specifically, there are ways to prevent or avoid sedimentation. The
cause of the muddy water is both natural and past practices. When the flows come
up, it is over the bars. That finer sediment on the bars is picked up and carried
downstream. It depends on size of system and what is upstream of the system.
Hoag asked if they measure the upper streams where there has been logging
to see if the current buffers are working. Thompson stated there has been some
monitoring, but that is not a continuous program. If they look at what has been
done locally and regionally as far as the changes of forest practices, they will find a
good body of information that supports modifying forest practices. There is good
documentation on the effects of a timber harvest on streams.
Hoag asked if they have a lot of sediment in the river this time of year, and if
it has a significant impact on fish. Thompson stated there is the potential for the
sediment to settle on a nest of eggs.
Nelson referenced policy 8I -3. He questioned whether they have
requirements or regulatory mechanisms that are similar to those for forestry uses.
He asked how that would work. Aamot stated the County would take the
conversions over next year. Staff will develop an ordinance that has to meet DNR
regulations or better.
Nelson asked if a conversion harvest plan is done that goes from forestland
rules, which don't have as much impact as subdivision on streams. He also
questioned whether they maintain the same types of forestry practices
requirements, or additional requirements. Aamot stated that would have to be
worked out when the ordinance is adopted. They have to meet DNR rules.
Nelson asked if it would be any different if they did a subdivision in an R5
area that is not forested. Aamot stated it would. There is already a forest canopy
in a forested area. The trees in rural areas have already been cut and don't have a
forested area next to the stream. Here, they are trying to preserve the forested
areas next to the stream.
Nelson suggested amending language in goal 8S, "...mining should avoid
deer ne adversely impacts habitat..." for the same reasons as the previous motion.
McShane moved to amend goal 8S, "...mining should avoid does not
adversely impacts habitat..."
Hoag stated this is specifically about protecting habitat of threatened and
endangered species. If they don't ensure against adverse impacts, they will not
have the legal coverage they need. Do not change the language.
Natural Resources Committee, 11/27/2001, Page 6
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McShane asked if the phrase "should avoid adverse impacts" would be a
problem legally. Gibson stated the thrust of ESA is the avoidance of take. It's all in
the implementation. One might justify that a slight difference in language is a
slightly different spirit. The question is what will happen when the rubber meets
the road. Under both alternatives, it comes down to proper implementation.
Hoag stated there is a difference between the words "ensure" and "should."
The word "should" is akin to wishful thinking.
Motion failed 1 -2 with Nelson
McShane moved to amend goal 8S, "Ensure that mining avoids lees -net
adversely impacts to the habitat..."
Motion carried unanimously.
McShane moved to amend goal 8I, "Ensure that forest practices de net avoid
adversely impacts to the habitat of ..."
Motion carried unanimously.
Hoag referenced policy 8S -5, and asked why the Planning Commission struck
that policy. Aamot stated the Planning Commission wanted more flexibility for
mining operations. That is one of the activities that the National Marine Fisheries
Service (NMFS) said was most likely to cause harm. Also the Department of Fish
and Wildlife identifies that activity as harmful.
Hoag moved to reinstate policy 8S -5, "Policy 8S -5 Avoid surfacing mining in
the floodplain."
Nelson stated the Veddar River that has a dredging /mining operation in the
river. He questioned whether this type of thing would be prohibited.
McShane stated the Canadians need to maintain the channel to the Frasier
River for the Vedder River to not back up. To the southwest of the Vedder River,
there is a diked off area that would be a lake if it is not maintained. Gibson stated
FEMA delineated the flood plain on the FEMA maps. One question is whether they
have gravel mining in the flood plain. A second question is, if they do, does it differ
in terms of what they are seeking to avoid. There may be gravel mining in the
Everson overflow area. The question is whether they would have an evulsion. Ask
what they are seeking to avoid by not doing mining in the floodplain. The
floodplain maps make it clear to include the riverbed, but they can make it clear
that they are not talking about gravel bar scalping.
Nelson asked if this is a policy that NMFS and the Army Corps of Engineers
are unhappy with, and why. Aamot stated NMFS just listed activities that are most
likely to harm fish. That is one of them. The Department of Fish and Wildlife
encourages implementation of this policy.
Nelson asked who does the floodplain definition. Aamot stated FEMA does.
Natural Resources Committee, 11/27/2001, Page 7
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Gibson stated FEMA does the FEMA maps. The County will occasionally
disagree with the map and there will be map amendments. In terms of building,
there are modifications that can be given, based on evidence.
Nelson stated his concern is not necessarily the commercial activity. He
asked if there are viable resources that they are leaving out that can be used and
that are easier to extract.
McShane stated that on the Nooksack River, there is poor material that
doesn't work well with concrete. It can still be used as fill material. The river does
not have high quality material.
Nelson questioned whether there are no commercial activities in the flood
plain. Aamot stated he would have to look at the map. An existing operation in the
floodplain would be grandfathered.
Nelson stated he supports the motion for now, but will check on it.
Motion carried unanimously.
Dawson suggested a new policy 8S -7, "Policy 8S -7 Allow gravel extraction
when mitigation is developed that will offset potential harm."
Hoag suggested, "Allow extraction of excess sedimentation from the river to
be certain that the techniques employed minimize impacts to fish and habitat, and
employ mitigation to offset any impacts that cannot be avoided."
McShane suggested the staff's language, "Avoid gravel bar scalping where it
would adversely affect spawning or critical habitat areas."
Dawson stated she is talking about dredging within the river.
Nelson stated they may need another goal. It is a huge issue when they get
into the river itself. If they want to have a goal to look at the entire river basin,
determine the areas that are appropriate, make sure they have the volumes to
determine impact, and what it can do to fish habitat and surrounding land uses.
McShane asked if the intent was to prevent flooding or do mining.
Dawson stated the purpose is for both flood control and mining.
Hoag stated she agreed with the intent of getting the extra sediment out of
the river. It causes flooding. She was concerned about creating deeper pools.
(Clerk's Note: End of tape one, side 8.)
Gibson stated that on a practical level, in the past, they relied on the
commercial aspect of this activity to drive it. There must be businessmen out there
who want to do this. This discussion is something different. It is about making a
Natural Resources Committee, 11/27/2001, Page 8
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government program to make sure the river is properly maintained. The question
is whether the commercial industry will take it on and, if not, whether the County
will maintain the river.
Hoag stated that there are people who would be happy to take gravel from
the river, but have been stopped due to government regulation.
McShane stated that is why he asked if the intent is flood related or mining
related. As part of flood program, they would be encouraging mining and dredging.
Hopefully the operator can sell some of the material, which reduces the cost to the
County.
Gibson stated the policy question is whether the County will continue to mine
the river as a channel if the commercial incentive is not there.
Hoag stated they can cross that bridge when they come to it. It depends on
the quality of the material in the various rivers. The problem now is that it is
politically impossible to get gravel out of the river.
Gibson stated the County has little role in that. Ask what the County should
do in relation to this issue.
Thompson stated his concern is that these are very complex issues. The
Vedder River is very different from the Nooksack River. Mitigation measures impact
different fish populations. He suggested working out the wording on bar scalping,
but wait on the other until the flood staff has worked on the details.
Hoag stated she has been pushing for a sediment study for four years.
People along the river say the flows are much higher and are backing up the creeks
and channels. People downstream of the Lagerway dike are concerned about what
is going to happen. Get that sediment study done as quickly as possible.
Sylvia Goodwin, Planning Division Manager, stated it is a complex issue that
they need more time to work on. She suggested the language "Policy 8S -7 Work
with state and federal agencies to develop policies and regulations to address in-
stream gravel extraction in rivers, to ensure that critical habitat is not adversely
impacted and that flooding or erosion in surrounding areas is not increased." That
would be a placeholder to resolve the issue later.
Hoag so moved as policy 8S -7.
Motion carried unanimously.
McShane moved to go with original staff language in policy 8S -6.
Motion failed 1 -2 with McShane in favor.
McShane moved to amend policy 11J -2, "develop and adopt programs which
protect and restore habitats that are essential... ".
Natural Resources Committee, 11/27/2001, Page 9
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McShane withdrew his motion.
Nelson moved to amend policy 11K -9, "Maintain or restore habitat ""�nditiens
functions for..."
Motion carried unanimously.
Hoag stated the County should do what it can to encourage restoration. She
asked if language in policies 111 -2 and 11K -9 mandates rather than encourages
restoration. "Maintain and Fester encourage restoration of habitat conditions..."
McShane stated leaving it open and broad would be better.
Hoag moved to amend 11J -2, "...federal government. Specifically, these
programs should maintain and FesteFe encourage restoration of habitat
conditions..."
Nelson stated he was not sure whether that meets ESA requirements.
Gibson stated there is no ESA requirement for local governments to restore
habitat. However, it is a very good idea, and they should do it.
McShane stated it refers to programs, which should be successful. Some
programs will encourage and some will require restoration.
Motion carried 2 -1 with McShane opposed.
Hoag moved to amend 11K -9, 'Maintain and restore encourage restoration of
habitat eenditiens functions for...."
Motion carried 2 -1 with McShane opposed.
McShane moved to use staff's action item 55, 'Amend the Critical Areas
Ordinance to protect threatened and endangered species, consistent with RCW
36.70A.172 which calls for giving special consideration to conservation or protection
measures necessary to preserve or enhance anadromous fisheries, and Department
of Ecology rules relating to best available science (WAC 365 -195, Part IX)."
Goodwin stated the County is supposed to update the critical areas ordinance
to address best available science by September. They will not meet that deadline.
As long as the Council passes a resolution that sets out a schedule, they will be
okay. By this time next year, they will be working on best available science.
Motion carried unanimously.
Hoag suggested amending policy 8S -7, "...in surrounding areas is Fret
ineFeased addressed."
Hoag asked about alternative language to action item 56. Aamot stated
there is alternative language in policy 2M -5
Natural Resources Committee, 11/27/2001, Page 10
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Hoag moved to put that language in for action item 56, "56. Require
subdivisions and short plats to be designed in a manner to protect fish habitat and
water quality when a fish bearing stream or river passes through the site."
Aamot asked if the Council wants a case -by -case review of each plat, or
generic standards included in the zoning code.
Hoag stated all she wants to do is require that the subdivisions and short
plats be designed in this manner. She questioned where it would best be done.
McShane stated policy 2M -5 says they are going to require this. If they put
in this action item, they are saying they are amending the subdivision rules. That
may tie their hands."
Hoag questioned whether it happens if it is not an action item and if it is not
in the subdivision rules.
Hoag stated she wants it on a case -by -case basis when the committee
adopted the policy. Aamot suggested amending the subdivision regulations to meet
the policy of 2M -5.
Hoag restated and amended the motion for action item 56, "56. Amend the
Whatcom County subdivision regulation approval criteria to require subdivisions and
short plats to be designed in a manner to protect fish habitat and water quality
when a fish bearing stream or river passes through the site."
Motion carried unanimously.
Hoag moved to amend action items 57 and 58... "Review and consider
amendments to..."
Motion carried unanimously.
Nelson referenced action item 53. He asked where the board came from, if it
exists, and its activity.
Thompson stated the Salmon Habitat Restoration Advisory Committee takes
on those functions.
Nelson suggested the Nooksack Recovery Team (NRT) to take on those
functions. Thompson stated those two groups overlap. There are one or more
existing groups that can fill that function.
Nelson moved to strike action item 53. They will amend the critical areas
ordinance anyway. Look at what that is supposed to be. There are already groups
doing this now. He was reluctant to establish another board and imply to other
groups that the County would not look at their work.
Natural Resources Committee, 11/27/2001, Page 11
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McShane asked the staff's opinion of the action item. Thompson stated he
didn't know the background intent.
Hoag stated they need to know the background before striking the item.
Nelson moved to amend action item 53, "Establish a fish habitat beaF-1 to
cCoordinate the various..."
Motion carried unanimously.
Nelson asked if they have a shoreline management program that has been
amended to reflect State Department of Ecology (DOE) rules. Aamot stated no.
The DOE doesn't have one either. The DOE rules have been invalidated by the
Hearings Board.
Nelson asked if the County is in accordance with the recent ruling with DOE.
Aamot stated the DOE's recent rules are invalid, so they will go back to the drawing
board. It will affect the County when it is adopted.
ADJOURN
The meeting adjourned at 11:50 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, 11/27/2001, Page 12