Loading...
HomeMy WebLinkAboutNatural Resources February 8 20001 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 WHATCOM COUNTY COUNCIL Natural Resources Committee February 8, 2000 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 DISCUSSION 2. DISCUSSION REGARDING THE DEPARTMENT OF ECOLOGY'S STATE MASTER PROGRAM APPROVAL /AMENDMENT PROCEDURES AND SHORELINE MASTER PROGRAM GUIDELINES (AB2000 -050) McShane read the five requested changes Nelson submitted. The first suggestion was to include a cover letter outlining what the counties have to do to comply with the proposed requirements. Nelson responded that was a logistics suggestion to help the County's Building and Codes Division understand what requirements are needed, and also so the councilmembers have the information easily accessible. McShane stated it was a good suggestion and he wanted to see that go forward. A lot of the information is repeated throughout the document. It would be helpful to emphasize the changes. McShane stated Nelson's second suggestion was to define the term "public health." Nelson responded that the term "public health" has different meanings to different individuals. In the public health arena, the context pertains to the effects of the general population. In the context of the shoreline master program guidelines, it may have an entirely different meaning. It may be more localized. McShane stated Nelson's third suggestion was to clarify how "multi - jurisdiction" will work. Nelson responded that there is a requirement that jurisdictions inter - relate on shoreline management. He wanted to clearly understand who would be the sources of authority and the areas that various jurisdictions would be responsible for. For instance, if a watershed crosses jurisdictional lines, he wanted to know who would have responsibility for the protection of that watershed. He also wanted to know who would pay for the protection. They need to outline the jurisdictional roles. If they are going to do inter - jurisdictional planning, they need to know who will be responsible and how it would be paid for. Natural Resources Committee, 2/8/2000, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 McShane stated Nelson's fourth suggestion was to clearly state how to set up best management practices (BMP) to be flexible and also use the best science available. Nelson responded he is tired of hearing the term "best management practices" because it is interpreted by whomever wants that best management applied. When they use a term like that, if the state is going imply that the County must consistently use best management practices, they state had better be sure they are defining what best management is. McShane stated that Nelson's fifth suggestion was to define what is meant by "significant" regarding ecological function standard. Nelson stated that is another term that is thrown out. Individuals will have different definitions of what "significant" means. What the state expects the County to define as significant should be clearly outlined, as the County goes through its shoreline management plan. They also need to know if "significant" is defined by certain parameters. McShane stated they are all good comments. Dawson stated the definition of "ordinary high water" needs to be clarified as the vegetation line, based on current federal law. Ordinary high water, based on a Supreme Court decision, is the average of the tides over an 18 -year period, which means it is about at where the seaweed line is. People that live on salt water are cognizant of the definition of ordinary high water because it means the same thing as mean high tide. In their title, it goes to the mean high tide. They are very confused when the regulation refers to the ordinary high water line. They state needs to get their definitions together. McShane stated it would go against current state law to change the vegetation line to match what Dawson just described. Dawson stated it is current federal law. McShane stated he was not sure if he would support that suggestion. Dawson stated they need to change the words "ordinary high water" to "vegetation line." McShane stated that sometimes there isn't a vegetation line. Dawson stated that they need to say "vegetation line" when they mean it, and not use the term "ordinary high water." There has been a new definition for that since the previous plan was written. Dawson stated her other suggestion was that the criteria for placement of bulkheads needs to be expanded to include lot protection in a residential zone. McShane suggested that they be able to protect the buildable area with a bulkhead on a lot. Natural Resources Committee, 2/8/2000, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Dawson agreed. McShane stated he had four suggestions. One was that the Shoreline Master Program Guidelines will be a key element of the Whatcom County salmon protection and recovery plan. They should encourage the State Department of Ecology (DOE) to adopt rules that will give clear guidance to the counties regarding salmon protection and recovery. They especially encourage DOE to adopt rules that will not be subject to change because they do not meet National Marine Fisheries Services (NMFS) /Environmental Protection Agency (EPA) 4(d) rules. Nelson stated he agreed. They will have to do that anyway, since they have to comply with federal regulations. McShane stated NMFS and DOE don't seem to be agreeing. DOE seems to be dragging its feet on the 4(d) rules regarding the shoreline guidelines. Nelson questioned whether his suggestion was a suggestion for DOE to comply with the same rules the County has to comply with. McShane stated that was correct. It also encourages them to give the County the guidance to comply. They would like to get the rules in a timely manner, and request that DOE advocate the state legislators for funding to assist counties in updating their plans. Nelson agreed. McShane suggested they change figure one on page 12 of the plan. It is confusing and not helpful. Nelson agreed. He stated they don't need a diagram. McShane stated his last comment was on page 53 of the document, section (ii)(F), regarding setbacks on steep slopes or bluffs. The shoreline setbacks on low banks should be evaluated as well because rapid erosion can occur at these locations. Typically there is a view that high bank steep slopes are where there is a lot of erosion. Generally that is true, but there are instances of low bank erosion. A low bank is typically anything less than ten feet high. Nelson questioned whether it would make a difference if it was a lake or a river. McShane stated that it would make a difference. This document deals primarily with saltwater. Nelson stated he had a suggestion regarding forest practices. He questioned the County's role currently on a conversion harvest plan within shoreline management areas. The concern is the denuding around the shoreline of forests, and then the County comes in too late to accomplish anything. In this document, they are being asked to rely on the forest practices act in implementing this. Exceptions to this shall be by conditional use permit only. He questioned who would set the conditional uses. This is in section (e) on page 59 of the document. Natural Resources Committee, 2/8/2000, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Sylvia Goodwin, Planning Division Manager, stated the County doesn't have jurisdiction currently unless there is a forest conversion, even if it is in a shoreline. Nelson agreed and stated there needs to be clear definition of roles and responsibilities between jurisdictions for the conversion option harvest plan. Goodwin stated she would review the current practice, but it looks like the County is being asked to change its current practice. She questioned under what authority they could ask that. She would consult with staff. She understood DNR has that jurisdiction, and the County has limited comment input. Nelson questioned whether transportation and parking on page 62 was new under shoreline management. Goodwin stated it may be new wording, but there have always been shoreline rules to discourage the shoreline from being used for parking lots. It is not a shoreline- dependant use. Nelson stated it was also trying to get transportation away from shoreline areas. Goodwin stated that has been the intent since the 1970's. Nelson asked that they put greater emphasis on transportation dollars being used to accomplished the goals and help local communities to comply with that. Goodwin stated there are areas where they could relocate roads away from the shoreline area if they had the money. Rita Foley, South Lake Whatcom, stated she was concerned about taking trees from the shoreline areas. There have been many violators of the regulation to leave 30 percent of the trees in the shoreline area. Also trees do not blow down unless their roots system is disturbed. There could be more care taken. When houses are built, all the trees are removed. (Clerk's Note: Hoag arrived at 10 :55 a.m.) McShane asked Hoag to pass on any comments. Nelson moved that the recommendations of the committee be forwarded to the full Council for consideration to draft a letter to DOE. Motion carried unanimously. 1. DISCUSSION REGARDING REQUEST FOR A MORATORIUM ON THE ISSUANCE OF SURFACE MINING PERMITS IN THE MRL ZONE PENDING DEVELOPMENT REGULATIONS TO IMPLEMENT THE COMPREHENSIVE PLAN (AB2000 -069) McShane stated citizens brought this forward at the last Council meeting. Sylvia Goodwin, Planning Division Manager, stated a letter was distributed from Acting Planning and Development Services Director Sam Ryan that summarized staff's concerns. The concern is that the County does have mineral Natural Resources Committee, 2/8/2000, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 resource regulations. They were adopted after the Comprehensive Plan, to implement the Comprehensive Plan. Between the mineral resource regulations that exist and the conditional use and administrative approval process, most of the issues that were raised by the citizens are addressed. They do have the procedure for doing a text amendment, which is that any citizen or a councilmember could include the item on the docket for consideration. The deadline is June 30. Or, the Council could declare an emergency by a 2/3 majority of the Council to look at the issue outside of the regular docket. There are valid concerns regarding public notice. There are public notice procedures in which everyone within 1,000 feet of the potential mine are notified. Anyone within the 1,000 feet who asks for a copy of the final decision gets a copy. They do not automatically mail out notices of decision on those applications to everyone. If that is concern, it could be addressed by an administrative procedure, or it could be done by notification on the first notice that the decision would be available. Nelson questioned whether the 1,000 feet of notification was in commercial forestry zones only. Goodwin stated it is all zones. They also post the site. There is a valid concern that not everyone knows about the decision in time to appeal it. McShane questioned whether the timeline was 14 days. Goodwin stated there is a 14 -day appeal period. Hoag questioned whether the citizens had a chance to see staff's memo. Goodwin stated she did not send the citizens a copy, but could made it available. Hoag stated she received letters regarding the notice. She suggested the public be given a timeline specified in business days instead of calendar days. Also, parties of record should be notified when decisions are made. Goodwin stated that anyone who requested to be notified wouldn't have to call daily to find out if the decision had been issued. They only had to call once and request that they be informed when a decision is made. Hoag stated the public doesn't know that. She was familiar with the regulations that were passed before she was elected to the Council, but there were a number of items that were not covered. She wanted to hear from the citizens who brought the concerns forward. There are number of items that the Comprehensive Plan calls for, but are not in the development regulations. Goodwin stated she didn't see any concerns that weren't covered in the memo. Hoag stated the requirement to maintain an ongoing advisory committee has not been done. Goodwin stated there has been a Surface Mining Advisory Committee (SMAC) that has been inactive for years because there weren't any mining issues. If there were issues and the Council wants to reactivate the committee, the Council could do that. Nelson asked for an overview of the development regulation process that has occurred since 1991. This went through an extensive process. There were a couple of SMAC committees that were formed. It has gone through the hearing process. Many appeals have been filed. The Hearings Board reviewed the regulations and the Comprehensive Plan to make sure everything is in compliance with the Growth Management Act (GMA). Natural Resources Committee, 2/8/2000, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Hoag stated the public who is present has participated throughout and it wasn't necessary to have an overview at this point. She wanted the citizens to come forward with their concerns, and for Goodwin to respond to the concerns. Brenner stated the Council did pass regulations, but questioned whether the public felt the regulations are not being enforced. She questioned why the SMAC was not going on, and if they have been inactive because there have been no applications. Goodwin stated there have been permits requested. The SMAC was primarily set up to advise the County Council on the regulations and the locations of the mineral resource lands (MRL) maps. Since that work has been completed, there hasn't been any reason for that committee to meet again. They may want to reform or form a different committee to provide ongoing input on implementation or to review applications. That hasn't been done. The Council has the authority to do that. Brenner questioned whether it would be appropriate for the committee to review complaints. Goodwin stated an advisory committee can do whatever the Council empowers the committee to do. They may want to form another committee, appoint new members, and give them direction. They have to be advisory to someone. Ultimately they should be advisory to the County Council, who would direct staff on policy issues. They don't generally have committees that area advisory to staff. Brenner stated the citizens need to be able to take their specific concerns somewhere. Hoag stated the ongoing advisory committee was adopted with the Comprehensive Plan in 1997. The work of the SMAC was completed before that. At that time, the policy was to maintain an ongoing advisory committee. It wasn't just aimed at setting up MRLs. This was something that was adopted in 1997 to say they wanted an ongoing advisory committee into the future. That is not happening. Goodwin stated that could happen by Council resolution. There are a lot of action items in Comprehensive Plan that have not yet been implemented. Now that is before the Council, all they need to do is form the committee. Fenton Wilkinson, 7101 Goodwin Road, stated he was there out of his desire to preserve the quality of life that they have in Whatcom County. There are conflicting goals and policies in the Comprehensive Plan. They were unable at the time to resolve all the conflicts, so the plan asked staff to develop a surface mining regulatory program that resolves the conflicts in the Comprehensive Plan. The current regulations to not resolve those conflicts. The regulatory program for public safety only says that the mine shall not be hazardous to neighboring uses. The noise regulations defer to those set out in the Washington Administrative Code (WAC). The regulatory program for noise only says that they won't violate state law. In addition, there is not a conditional use permit public hearing for MRL permits. It is all done administratively. The public only has 15 days to appeal an approved application. If the conditional use criteria were followed, there would not be any complaints. (Clerk's Note: End of tape one, side A.) Natural Resources Committee, 2/8/2000, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Hoag asked Wilkinson to discuss his specific complaints. The Council decided to implement an administrative approval process for the easy applications rather than a conditional use permit process. Those applications that are more complicated should be approved by a conditional use permit process. However, that was not how the ordinance was written. Staff was not even aware of the correct process. Wilkinson reviewed some of the policies in the Comprehensive Plan that the regulatory program is supposed to achieve, but doesn't (on file). Hoag asked where Comprehensive Plan policy 81-6 was covered in the County regulations. Goodwin stated it is in County code section 20.73.131(4). Brenner questioned whether that regulation is being done. Goodwin stated it IS. Brenner questioned whether Wilkinson believed that was being done. Wilkinson stated he has not been involved in this. Nelson stated Wilkinson was making claims that are not true. They need to get to the facts of what is going on, and whether the regulations are meeting the goals and objectives of the Comprehensive Plan. Wilkinson stated state law gives the State Department of Natural Resources (DNR) jurisdiction over reclamation plans. The state law also requires input from the local jurisdictions and that the reclamation plans be consistent with local land use law. There are a number of reclamation plans for pits in agricultural zones that are to create a recreational lake. The agricultural zone requirements do not include manmade recreational lakes as a permitted or accessory use. It is a nonconforming land use. Hoag questioned why Wilkinson thinks the bonding requirements have not been met. Wilkinson stated there is nothing in the regulations to encourage reclamation. There is nothing in the regulatory program that allows the County to get involved in determining the adequacy of security of the bond. A 40 -acre pit has a total bond coverage for reclamation in the amount of $6,000. Hoag asked about Wilkinson's concern with policy 8J -1. Wilkinson stated the conditional use criteria 20.84.220(6) does not define what excessive is. Wilkinson stated the problem with policy 81-2 is that the only provision dealing with road wear was deleted from the corresponding regulation. The problem with policy 8J -4 is that there is nothing in the regulation that encourages reclamation. The problem with policy 8J -5 is that there is nothing in the corresponding regulation to address how that determination is made. The problem with policy 8K -2 is that the only regulation says that there won't be any intrusion. (Clerk's Note: Hoag left the meeting at 10:32.) McShane questioned whether Wilkinson believed there was a lack of specificity in the regulations. Wilkinson the regulatory programs are to establish parameters and guidance for decision - makers, to advise the public of the regulations, and to provide accountability. Natural Resources Committee, 2/8/2000, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 McShane questioned what the negative impacts are that do not match the intent of the Comprehensive Plan. Wilkinson replied that the people who have been involved in this issue say that the noise levels are too high, there is no reclamation because bonding amounts are too low, and there is inadequate enforcement. He requested an honest acknowledgement that there isn't an adequate surface mining regulatory program and there should be a moratorium until one is in place. He also asked that the staff not issue a surface mining permit if there is any evidence that the activities will be disturbing to future or existing neighboring uses. That is what the law says they have to do. Lesa Starkenburg - Kroontje, 115 Front Street Lynden, spoke on behalf of the Sand and Gravel Association. She stated they submitted a letter to the Council dated February 7. She suggested staff host a get- together at Planning and Development Services offices if there are extended concerns that need to be addressed. It would be an opportunity to educate the public about the local and state regulations. There is a request for a moratorium that seems to be grounded in the fact that a list of Comprehensive Plan policies that have not been implemented. Development and performance standards are specific rules. The program of implementation goes beyond the development and performance standards. The Comprehensive Plan was the guide that set out the policies by which the Council created the mineral resource land designation. The designation policies that were established to create the MRL were an implementation of the Comprehensive Plan. For instance, a policy to support the conservation of productive agricultural lands is located in the implementation of the MRL. The only two ways to commercial surface mining activity permit within Whatcom County is to either go through an administrative approval process or a conditional use permit process. The administrative approval process can only be done if the site has already been designated an MRL. A project in an MRL would have to get a state DNR permit. The state is in charge of reclamation. McShane questioned the state's authority on gravel permit reclamation. Starkenburg - Kroontje clarified that it is only for sites that are required to have a DNR permit, such as sites with slope faces that are greater than 30 feet, or projects over three acres in size. McShane stated that if there is a conditional use permit, the County could place conditions of reclamation on the pit. If it is not a conditional use permit and is an MRL, there will not be conditions on the reclamation. Starkenburg - Kroontje stated that was correct. The County does comment to the state on whether the reclamation use is consistent with the underlying zone. There have been no agricultural projects that have been permitted. One could not apply for a permit at this point, since the adoption of the Comprehensive Plan. The comment about the recreational lake would have been about an old permit, in which the County would have had different zoning regulations. McShane questioned whether the state requirements would automatically be applied in MRL areas, and if the County could condition the use through its own code MRL designation. Starkenburg - Kroontje stated the County couldn't condition the reclamation plan. The County can condition the end use of the reclamation and the manner in which the site is reclaimed. There is an inter - relationship. The Natural Resources Committee, 2/8/2000, Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 County, through the administrative process, does establish conditions for sites. Those conditions include an adherence with the development and performance standards and anything else they think is necessary for the site to be in compliance with the Comprehensive Plan. She was aware of only two permits the County has administratively approved since the adoption of the Comprehensive Plan. The County requires that the applicant demonstrate how the project is in accordance with the general and specific goals and policies of the Comprehensive Plan. The state requires that a reclamation project be done in segments. One can't have an exposed segment over eight acres at any given time. Both of the permits issued since 1997 were issued for existing sites that expanded. To her knowledge, the pending permits are for existing sites that are expanded. Brenner requested clarification on whether the County can condition reclamation plans. Starkenburg - Kroontje stated the County can, through the State Environmental Protection Act (SEPA) process, enforce the Critical Areas Ordinance or condition mitigating factors through SEPA. The County cannot disapprove of DNR's reclamation standards. It can require that a DNR plan complies with the land use regulations, such as the Critical Areas Ordinance. Brenner stated she lived next to two pits for 15 years. They've been very good neighbors. She has also been to places that have not been good. The frustration includes having unspecific regulations so that they are subjective. It would be a lot cheaper for the mining industry to work with the neighbors and be good neighbors, rather than constantly fighting with them. Starkenburg - Kroontje stated all operators within the Sand and Gravel Association take that same stance. They need to be good neighbors. There have been problem areas within the County over the years. There haven't been any issues lately. The discussion they need to have should involve the County's surface mining inspector. There have been few complaints since the adoption of the Comprehensive Plan and the development regulations. The development and performance standards apply to everyone, even nonconforming sites. Nelson stated any time they do activities with natural resources, including agriculture and forestry, there will be people who disagree that the standards and conditions have been met. They need to look at the message of the Growth Management Act, to meet the natural resources need of the community. The intent of the legislation was to get away from litigious situations. If they keep changing the regulations, the citizens will get the message that the Council will change the regulations for every complaint. He recognized citizen concerns, but if the regulations are not meeting the requirements, then they need to go through the process and change the regulations. His concern was that they start establishing moratoriums every time someone gets upset. They might as well throw out GMA. McShane stated there is a perception there is a problem with the MRL simply because Alvin Starkenburg was on the County Council and participated in that process. He was not making any accusations that Starkenburg manipulated the process in any way. Nelson stated McShane was making an accusation by making that statement. McShane stated there is a public perception issue. He was comfortable revisiting the issue. Natural Resources Committee, 2/8/2000, Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Nelson stated McShane already had that opportunity when the issue went to the Hearing's Board and when the County went through its Comprehensive Plan public hearings. He was accusing a former councilmember who excused himself from much of the process because of his own concerns of public perception. It is inappropriate to bring that issue up because Starkenburg did everything possible, including working with the County attorneys, to make sure that it was not an issue. McShane stated that the underlying issue was the code that the County currently has and if the Comprehensive Plan policy statements were being carried out. He asked for Starkenburg - Kroontje's perception of that. Starkenburg - Kroontje stated the process is in place by which they are required to do that on a case -by- case basis. There is no project for commercial surface mining. There is not process for approval in which one does not have to prove to the County that the project is in accordance with the goals and policies of the Comprehensive Plan. That is the first requirement that is on the administrative approval form and the conditional use criteria. One cannot get past that. The Comprehensive Plan is being implemented individually for every permit. This is the only chapter of the Comprehensive Plan in which that happens. She didn't know how it couldn't be implemented. McShane stated he approved of the application process. The question may then become, from an administrative point of view, what criteria and guidance exists besides the Comprehensive Plan and whether they need to go beyond referring to the Comprehensive Plan. Starkenburg - Kroontje stated to specific issues have been brought forward. She welcomed the Council to talk with the person who implements that. They are not only dealing with perception, but with realities as they relate to those perceptions. An example was given about a low state bond amount not implementing the policy relating to insurance requirements. Those are two different things. The $6,000 was for the state bond, which is an amount the DNR thinks is necessary for the piece of property that is open, not the full site. There is also a County insurance bond, so the operator is doubly insured. People in the industry gets frustrated about having to come forward when there is not an issue. The industry will never completely conquer the perception. If they are going to wait for an idea situation in which there is no one with preconceived notions and no one on the Council who would appear to have any type of agenda or knowledge for either side, then the ideal situation will not happen. They will never finish dealing with the regulations. There is a SMAC that was once resurrected. Anytime the County feels there is a need to have them meet again, they can be called. There is a regulatory program. The fees the industry pays to the County pays for the staff who oversees the industry. Part of this issue is a lack of understanding of the big picture. The Hearings Board dealt with the issue of appearance of fairness and found nothing. She hoped they would not revisit that again. Brenner stated the committee has to be reactivated with a diverse membership. She was concerned with how subjective or objective the criteria are. She didn't see any specifics. There were a lot of terms that were not specific enough to assure that everyone would be treated the same. They need to define the areas that are subjective and to find out from staff how those general terms are now interpreted. They are never done being educated. Natural Resources Committee, 2/8/2000, Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Starkenburg- Kroontje stated the words that are used throughout the application are the words that are used for every conditional use application that comes to the County. The administrative approval process mirrors that. To look at the words and meanings, and how they are interpreted, it is bigger than the surface mining issue. That should be a broader process than one that focuses only on surface mining. There isn't an emergency regarding the moratorium, which can apply only to new permit applications, not ones that have already been submitted. David Davidson, Sumas City Administrator, stated the Comprehensive Plan sets down a good policy basis. The concerns are implementation issues. Two permits have gone through the administrative approval process. It was interesting to hear Hoag's accusation that the staff is not knowledgeable about the regulation. There are files that can be reviewed to see the process by which the two permits were approved. (Clerk's Note: End of tape one, side 8.) Davidson suggested they look and see if there are findings from the staff person that justifies the administrative decision. Harry Skinner, 6600 Goodwin Road, stated no one is asking to revisit the growth management process. They merely need to complete the process by developing an advisory committee. It is about implementing the policies. If they look at the criteria for the conditional use permit, those criteria should be useable with more specificity. He suggested several specific issues that need to be dealt with, such as boundary lines, light levels and pollution, sound levels, traffic levels, and vision - screening berms. More specificity would also benefit the project applicant by educating him or her on whether the project is even do -able. Nate Kronenburg, 2351 E. Pole Road, asked how it has been that DNR, who is responsible for reclamation, is to work with the County. There is one reclamation person at DNR for five counties. The notion that the DNR staff person will work with someone with the County is ridiculous. The SMAC was formed in 1991. The Committee served until 1994. At that point, the Planning Division disbanded it. It was disbanded before the mineral resources land designations were made and before the criteria implementing the Comprehensive Plan were developed. It became incumbent on the Planning Division to push through the protective development criteria. There was no response to the public participation. The public has not had an opportunity to be heard. The public includes those who are negatively impacted. If an advisory committee is elected or appointed, it needs to be appropriately representative. The last SMAC membership weighed in favor of the industry. Regarding the administrative approval process, the public is not being adequately informed of what is going on. There have been three permit issues. The public has brought forward concerns about the permits, but information is not being released. Those who wanted to appeal were not notified that the permit was issued in time to develop an appeal. That process doesn't work. Nor were they told they could look at the permit that was issued. Nelson questioned whether Kronenburg filed a suit or was involved in a suit against the County to the Hearings Board on this issue. Kronenburg stated he was involved in a suit. Natural Resources Committee, 2/8/2000, Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Nelson questioned what issues were addressed in that suit. Kronenburg stated the issues are the same issues they are talking about now, the failure of the public to be heard on concerns regarding portions of the Comprehensive Plan that were formed after the SMAC disbanded. Nelson asked what the Hearings Board decision was that was rendered. Kronenburg stated that there were many decisions and he could not go into them. One of the reasons for the appeal was that the County had not provided the plan on time. That is what began the appeal. The Hearings Board found that the plan was provided on time. They supported the County in recognizing that the plan was complete and on time. Nelson questioned whether Kronenburg was disagreeing that the Hearings Board adequately addressed the issue. Kronenburg stated there were so many issues that were given to them that they couldn't address everything. Nelson questioned whether all the issues were brought forward to the Hearings Board, or whether the Hearings Board did not address all the issues. Kronenburg stated he was not complaining about what the Hearings Board did. He was talking about what the County did or didn't do in preparation for providing a responsive Comprehensive Plan and development regulations that implement the plan. Nelson questioned whether that issue was addressed at the Hearings Board. Kronenburg stated it wasn't addressed because the development regulations were not in place at that time. According to GMA, development regulations have to be in place to implement the Comprehensive Plan within a year of the completion of the plan. That didn't happen because the plan was done in 1997 and there are still inadequate development regulations. Nelson questioned whether Kronenburg believed the regulations were not adequate. Kronenburg stated they do not implement the Comprehensive Plan. McShane questioned whether Kronenburg had an argument on the plan itself. Kronenburg stated he did not. McShane stated the development regulations were done after Kronenburg's appeal. Nelson questioned when Kronenburg's appeal took place. Kronenburg stated the appeal came shortly after the plan. It has to do with the fact that state law requires that development regulations be implemented within one year of the adoption of the Comprehensive Plan. Rita Foley, South Lake Whatcom, stated she opposed the comments McShane made against Alvin Starkenburg, who is a fine, upstanding citizen in Whatcom County. His daughter is an outstanding lawyer and attorney. Hoag has done nothing but run him down, and her conduct was horrible. They need to implement the regulations they have, not make any more committees. The DNR makes the rules on the gravel pit that is near her home. Natural Resources Committee, 2/8/2000, Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Goodwin stated they don't have additional comments. She would provide information on the staff reports for the administrative approvals if the committee wanted it. There is a letter in the file dated 1997 inviting the SMAC comments on the draft Comprehensive, although she didn't think they had a meeting on that draft. There were several members of the SMAC that participated in the Planning Commission hearing. Mr. Kronenburg also participated in that hearing, during which he said that the mineral regulations did implement the Comprehensive Plan. He also said that the Comprehensive Plan was flawed and, therefore, so are the regulations. There was an opportunity for public comment during those regulations. The SMAC members were all aware of them and notified of that. The Planning Commission public hearing was continued for another month to allow time for additional commend and consideration. The County Council also had several work sessions. The regulations may not be perfect; there is always room to improve. Staffing is a concern because there are many projects they are involved in now. Staff would need direction on priority from the Council. McShane stated there are fees paid by the gravel mining industry and questioned how much of that goes to paying for the staff position. Nelson stated all fees go into the current expense fund. Through the budget process, the Council allocates funding for the staff position. McShane stated the purpose of the fee is to pay for the staff person. Goodwin stated it is a full -time job. Starken burg- Kroontje stated the Hearings Board was specifically asked to look at the mineral resources chapter and the County's compliance of the GMA, as it related to mineral planning. They decided the mineral resource chapter was in compliance with the GMA. At that time, the Hearings Board did see the development regulations that were adopted in 1992, which were the regulations that were reviewed in 1997. When the oral arguments took place in November, the County was reviewing and adopting the final development regulations. The Hearings Board had the work that had been completed to that point, including the Planning Commission recommendations and the staff report. McShane stated they would schedule this issue again in two weeks to discuss where they want to go with this. He wasn't sure they wanted to make a recommendation right now. Nelson stated they should forward it to the full Council at the evening meeting. There is a process in place and questions need to be answered. If they want to form a SMAC, he would need to know the scope of work to give to them. They shouldn't form a committee just to make a committee. They need to be careful in forming the committee. He wanted to see people included that are not directly involved, but may have knowledge of the issue, such as a geologist or transportation specialist. As a person who lives next to natural resources areas, he expected that activity to occur. Brenner didn't believe the SMAC should be disbanded after completing one task. She wanted to see a diverse, ongoing committee that would hear complaints. Natural Resources Committee, 2/8/2000, Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Nelson stated he wanted a clear intent for the SMAC before establishing the committee, and to see if there are other ways to accomplish the same goals. His concern was that they are opening this up for an entire new process. They need to establish clear criteria on what they are trying to accomplish, such as regulation compliance. He wanted options. McShane stated the next committee meeting would discuss the options surrounding creating the SMAC committee. Sam Ryan, Acting Planning and Development Services Director, stated the staff person works on surface mining only half -time. The rest of the time, he works on other Natural Resources projects inspection. He wasn't present because she believed this was an exploratory discussion, and he needs to be working. She would be happy to host a work session. She would provide information on all other concerns that were brought forward. Nelson suggested they wait for Ryan's report before deciding what direction to take. DISCUSSION AND RECOMMENDATIONS TO COUNCIL 1. RESOLUTION REQUESTING THAT THE WASHINGTON STATE LEGISLATURE PASS LEGISLATION TO IMPLEMENT RECOMMENDATIONS OF THE CITIZENS' PILOT PROJECT SB5536 ADVISORY COMMITTEE (AB2000 -076) McShane stated this was before the committee during the last meeting. It went before the Forestry Forum. Nelson stated the Forestry Forum had a lively discussion. There were two issues discussed. One was about a task group set up by the Lake Whatcom Management Group and also the Senate Bill 5536 citizens' pilot project. The Forestry Forum members did not have adequate time to give a recommendation. People were opposed to changing current rules and regulations. There was discussion about the DNR having gone through a lengthy process with the landscape plan. Others expressed concern that the issues have not been adequately addressed and, therefore, need to have the legislature step in. The bottom line is that people are willing to work together to solve this issue, but there is a strong desire to make sure funding is available. There were concerns about impacts to financing. It is appropriate that, when these issues come up, they are sent to a forum format. They decided the forum needs to have more specific direction and a format. That was a concern expressed by Executive Kremen. McShane stated the Forestry Forum, depending on what the Natural Resource Board decides, may take on other issues. Nelson stated the Forestry Forum has traditionally been advisory to the DNR. They may want to formalize and become advisory to the County. Brenner stated she was disappointed that the issues of enforcement and how the state funds education were not discussed. They need to change the way the Natural Resources Committee, 2/8/2000, Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 state deals with revenue sources, it will not mean anything. This is a good start and is very flexible. They should approve the resolution. McShane stated that Councilmember Dawson submitted written comments. He didn't want to use her term "poor logging practices" on lines 15 and 16, page 93 of the packet. At the time they were done, they didn't realize they were doing poor logging practices. Dawson suggested "peer different logging practices." Brenner suggested "Prior timber harvests have resulted in poor logging practices." Nelson stated these are cumulative effects. The flooding that occurred in 1983 and a lot of the wasting that occurred around Lake Whatcom occurred from 20 to 50 years ago. They have to be careful on the language so they are not implying that current practices are causing damage. The committee concurred on 'Prior timber harvests have resulted in poor logging practices. ". Dawson suggested the Council endorse "...endorses aR many of the Lake Whatcom Advisory Committee recommendations...." She didn't endorse all of them. McShane didn't agree. Nelson stated the intent of the resolution was to endorse all the regulations. Dawson was concerned about the type five streams. She wanted to include language, "WHEREAS Whatcom County objects to blanket buffer setbacks on all type five streams; and WHEREAS the Whatcom County Council supports using functions to determine setbacks on streams, and have adopted this direction in the Critical Areas Ordinance; and" McShane stated that if they do that, it puts forward a more stringent recommendation than what the committee is recommending. The committee's recommending a buffer of 33 feet. If they make this recommendation, it would say they want 50 feet and one could still work within that buffer. The Critical Areas Ordinance allows a variance to move within the 50 feet. Nelson questioned whether it was necessary to add buffers to all type five streams. McShane stated that was the committee's recommendation and the question before this committee. Nelson stated that was a concern of the foresters, and it was also their concern it hadn't gone through a lengthy enough discussion. McShane stated the DNR believes it is a concern. Under their current plan, they are looking at studying it for a period of ten years. This is an issue that is a problem elsewhere. Natural Resources Committee, 2/8/2000, Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Nelson stated they may want the DNR to move the issue forward. Under the landscape plans, all those streams and areas have been walked. They may want DNR to resolve the issue of class five streams and their appropriate protection for water quality. McShane stated the State Department of Ecology (DOE) decided they don't need to buffer type five streams from forest practices. However, they told Whatcom County to buffer type five streams. Nelson stated the resolution should recommend that the issue be solved, instead of agreeing with one position. (Clerk's Note: End of tape two, side A) McShane stated he testified before the Natural Resources board that protecting type five streams for water quality, within a lake basin that is a drinking water source, is important. Nelson agreed that it needs to be addressed, but that wasn't addressed in the resolution. The recommendations are for DNR land only, but DNR also administers private lands. One of the intent is that, once passed, in would also be incorporated into private lands. That is where this is going. DNR is not going to do two separate administrations. McShane stated the DNR is generally more conservative in their approach to timber harvests. Linda Marrom, Sudden Valley, stated the current version of the bill says that management along streams will be based on the forest and fish practice rules, and there are no buffers on the type five streams. It was minimized because the timber industry has a problem with that for the entire state. If type five streams were buffered in the Lake Whatcom watershed, then it opens the door for litigation against the timber industry. Her desire is that they read the new version of the bill, which is very mild. Because Senator Spanel is asking for money to fix the roads in the watershed, the DNR would not have to do a timber sale to fix the Lookout Mountain Road. There is not too much in the current version of the bill that follows her committee's recommendation. Some of the recommendations may be brought up in the landscape plan. The watershed analysis states the same thing, except now they are going to be allotted money to fix the roads ahead of time instead of waiting for ten years. The DNR wants to have one specific place to go to, such as the Lake Whatcom Management Team, to develop and devise this harvest plan and to discuss timber sales. She distributed a revised version of the bill (on file). Nelson stated the landscape plans attempted to create a special area just for Lake Whatcom. Marrom stated that is Senator Spanel's intention. She was concerned about the private forester. The new forest and fish report is hard enough on the private forester. Senator Spanel's bill tries to get the DNR to finish the landscape plan, to involve the public, to involve one specific committee such as the Lake Whatcom Management Team, and to get money ahead of time to redo the roads. Natural Resources Committee, 2/8/2000, Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Nelson stated the big concern regarding Austin Flats was about the proposal to close down roads that did not help the watershed and bring other roads up to grade. If that is the issue, they need to look at that. He didn't want to overextend into DNR practices that would impact other DNR permitting processes. It will carry over to private lands. Marrom clarified that the bill was specifically for state lands in the Lake Whatcom watersheds. They are not being asked to do anything different than what already exists in the watershed analysis. ADJOURN The meeting adjourned at 12:05 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, 2/8/2000, Page 17