HomeMy WebLinkAboutNatural Resources January 25 20001
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
January 25, 2000
The meeting was called to order at 9:30 a.m. by Committee member Connie
Hoag in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present: Absent:
L. Ward Nelson None
Dan McShane
SPECIAL ORDER OF BUSINESS
1. ELECTION OF COMMITTEE CHAIR (AB2000 -023)
Nelson nominated Hoag for chair.
McShane nominated himself for chair.
Nelson voted for Hoag.
Hoag and McShane voted for McShane.
McShane was appointed committee chair.
COMMITTEE DISCUSSION
1. DISCUSSION REGARDING THE DEPARTMENT OF ECOLOGY'S STATE
MASTER PROGRAM APPROVAL /AMENDMENT PROCEDURES AND
SHORELINE MASTER PROGRAM GUIDELINES (AB2000 -050)
McShane stated the Department of Ecology (DOE) submitted a draft version
of the shoreline program. Any comments or suggestions that could be passed on to
DOE would be helpful.
Nelson asked for an overview of the process.
Hoag stated she asked that administration be present to provide input. She
talked to Barry Wenger about where they are.
Barry Wenger, State Department of Ecology, stated the guidelines are the
rules that describe how to write a master program. They apply to all jurisdictions in
the state, including small towns and big counties. They have to be performance
based rather than prescriptive. The old guidelines lasted for 30 years. They have
worked fairly well. Thirty years ago, there were more resources and fewer people.
Natural Resources Committee, 1/25/2000, Page 1
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The guidelines are used with the public process so that everything from economic
development, public access, and environmental protection are included. Over the
years, the court cases have refined the process and language that goes into the
programs. They've improved, but not fast enough. DOE started this at the behest
of the legislature several years ago. The first draft came out about a year ago. It is
mandated that the next draft be done by April, in time to start the public process.
They are all facing Endangered Species Act (ESA) listings and the specter of
stopping a lot of projects and funding. It is very far - reaching. The state is trying to
figure out a response plan. One law on the books is the Shoreline Management Act.
There is case history and it has been tried and tested in courts. There is also the
Clean Water Act and a number of others. The regulatory and non - regulatory
components are what they are trying to sell to the National Marine Fisheries Service
(NMFS) to show that the state and local governments are doing what is necessary
to keep the salmon from disappearing. If they can't sell it, NMFS will take over
soon. A number of species are extinct now. Of the 240 stocks in the northern
United States, many Washington stocks are extinct. Genetically, they are so
different that they can't take a salmon from one river and plant it in another and
expect it to do well. Fish have keyed into specific areas over thousands of years.
Recovery has to be at the stock level to get populations up. This is the heart of the
state's plan for salmon recovery. It won't be easy. It is controversial. There is a
way to balance these things out. The City of Sumas revised its master plan in April
using the original draft guidelines and the basic principals that have been laid out.
They came up with some good ideas, such as the site potential tree height concept.
Hoag asked about the fill in the Sumas project. She questioned whether
they are required to trench or something to compensate so the floodwaters are not
diverted to other areas if they put fill in the flood plain. Wenger stated it would
depend on their flood ordinance. Normally, it depends on the location of the flood
plain. If they are filling in the flood plain, they are not compensated unless they
get to the flood way.
Nelson asked what the County has to do to redo the County's Shoreline
Master Plan.
McShane stated the purpose of this is to provide comment as a county to the
DOE. That is what they should discuss.
Wenger stated he worked with the group in Olympia to clarify language that
will allow more flexibility to the local jurisdictions to implement. Locals have to
have flexibility and still protect the resources. They are focusing on agriculture in
particular. The site potential tree height concept won't work statewide. Lower
environmental standards were allowed in urban areas. They made it clear the
guidelines are not for ongoing existing agricultural activities. If NMFS feels that
isn't enough, they can still ask for more protection. They are looking at local
government using the best information to protect the resource. For the urban
areas, they are looking at the functional protection of the resources. They are
more able to do that with more flexibility. The Sumas plan is a good example.
Bulkhead use was another area that was changed. Specifically, the 1992
Natural Resources Committee, 1/25/2000, Page 2
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amendments to the Growth Management Act called for effective and timely
protection against loss of single - family residences. Balancing family residences and
resources is an effort a lot of people don't make in this area. The Cherry Point
herring have declined incredibly. They are the prime salmon food source. They are
going to be listed by NMFS. Two - thirds of the Chinook salmon diet are those
herring, and this is the biggest herring stock in the state. The herring stock is at a
quarter of the minimal sustainable level to keep the salmon population going. The
herring could go at any time. A spill at the wrong time of the year could make
them extinct. Bulkheads relate to that because herring spawn on the eelgrass and
macro -algae in the near shore. The other fish that the salmon have become
dependant upon are forage fish, such as surf smelt and pacific sand lance. They
are different from herring in that they spawn very high up on the beach. The
bulkheads make the beaches steeper and the beach material more coarse. They
can't spawn in it. They are potentially killing off the spawning grounds with the
bulkheads. Those populations go up and down.
McShane stated he was familiar with the Semiahmoo area and Cape
Whitehorn. He questioned how Whatcom County compares to other areas around
the state regarding the quantity of bulkheads. Wenger stated things are okay in
Whatcom County, compared to places that have wealthier residents. If NMFS is
going to look at these fish as the prime food source because they need to protect
the salmon, and they have to protect the food source as well. They are going to
look seriously at the undeveloped counties such as Whatcom County to try and
preserve what is left.
McShane stated there are other issues besides fish. There are property
rights issues. People building bulkheads are going to cause damage to their
neighbors. For instance, Semiahmoo Spit is built and maintained by erosion of the
bluff. If they don't allow the bluff to erode, then Sandy Point is in jeopardy. The
County would look at having to do projects to maintain the land. Wenger stated
they found ways to use other methods besides bulkheads. When they get to the
feeder bluff, that is where the material comes from and they need to allow that
erosion. They can't stop it without causing impacts downstream.
Dawson stated the language currently allows bulkheads to protect a
structure. There was an instance in which a person without a structure was allowed
to build a bulkhead because two neighboring homes had bulkheads. People are
losing their land because of the evulsion. They need to include language that
protects the land's productivity.
McShane stated he and Wenger were out at that site. Wenger's
interpretation was that it might have been okay to protect that land.
Dawson stated a separate issue is when there are not neighboring homes,
but only a large parcel of land whose productivity is being lost because of the
evulsion. She was thinking specifically of the South Cape property as an example.
There are no structures, but they are going to have to do something to protect that
if they are going to keep the channel open.
Natural Resources Committee, 1/25/2000, Page 3
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2 Wenger stated that there are many issues linked to that situation. There is a
3 certain point when the erosion becomes a threat to property around bulkheads
4 when a lot is between two structures. At the same time, it doesn't mean one would
5 go to a common setback line. If property has been there for years and has a cove
6 shape, the person is allowed to fill in the beach area to neighboring bulkheads
7 rather than the original beach line. The owner can compromise between the two.
8 It is a softer approach. They are finding that forage fish use areas in those kinds of
9 places for spawning. They can't spawn in front of bulkheads. These are the areas
10 that NMFS will look at to sustain the populations because they are undeveloped
11 areas. Those cove beaches are very important. There is a way to balance
12 protection and property rights. There are soft approaches. One doesn't have to fill
13 in to the original property line, but only part way. They can pick a line that will
14 sustain the resources and still allow the use of the property.
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16 Dawson stated that item (c ) on packet page 55 deals with shoreline
17 regulations. It discusses terminology, specifically the ordinary high water mark.
18 The ordinary high water mark, according to DOE's definition, is the vegetation line.
19 The vegetation was recessed back because the erosion caused a change. According
20 to the federal definition of the ordinary high water mark, or the mean high tide, it is
21 the average of the tides over an 18 -year period. The ordinary high water mark on
22 a lake or a river is the vegetation line. This has caused a lot of problems. There is
23 the feeling that DOE is working with an incorrect definition. The terms are not
24 consistent between the state and the federal definitions. It has caused a lot of
25 problems. There is a feeling the DOE is using the incorrect terminology. Wenger
26 stated the ordinary high water mark was established by the legislature in 1971.
27 The ordinary high water line is a biological line. The legislature wanted to establish
28 a biological line from an aquatic ecology to an upland ecology. They've stated that
29 is where they measure their setbacks and buffers. There is almost 30 years of case
30 history to support it. They are not going to change it. There are several ways to
31 measure things in the field. The default measurement is the ordinary high water
32 mark when no evidence is found of the biological line.
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34 Dawson stated the tribe says the ordinary high water mark is where the
35 tideland begins.
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37 Nelson stated he wanted to know what the County has to do to comply.
38 Many times the public gets confused when these programs come forward. He
39 suggested a cover sheet with the proposed requirements the counties have to
40 meet, and then a reference of the location. He asked that they also define public
41 health. The term is used throughout the document and it is not defined. He also
42 had a concern with how multi - jurisdictional will be applied. Often a farmer or
43 forester has to include a stream buffer, but urban development doesn't require a
44 buffer. They don't have much ability to negotiate with urban areas. The County
45 should not be responsible for an urban level of development. They need to clarify
46 how multi - jurisdiction works. Packet page 25, item (d), discusses the multi -
47 jurisdictional master program. Also, best management practices (BMP) come in
Natural Resources Committee, 1/25/2000, Page 4
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different forms. They want to make sure it is clearly stated that they look at how to
set up BMPs to be flexible and to use the best science available.
Hoag asked about flooding, on packet page 55. They've had problems with
the Ritter Road spot. When she read section (c)(iii), it says that non - structural
measures are not feasible. It doesn't allow a choice of whether or not it will
accomplish the goals. There are no criteria. It only says that it must be feasible.
There is nothing in the plan about being able to weigh the different factors, other
than a general comment about cumulative impacts to the watershed and restoring
ecological functions. She asked to rephrase that sentence to include criteria.
Wenger stated that was a good suggestion.
McShane stated they should have criteria to determine what is feasible.
Hoag stated they want to save the fish and protect the land, but be able to
weigh the actions against the results for the total picture. She read the language in
section (b)(iv). She generally agreed with that section, but she had the same
concern about it. She read section (b)(i), beginning on packet page 54. It makes
sense because they want everything to be consistent, but the comprehensive flood
plan doesn't match this plan, and they should match. Wenger stated when the
County master plan is revised, that is the language that will be key.
Hoag was concerned about section (3)(c) regarding restoring ecological
function whenever feasible. The way it is written is pretty hard line. It doesn't say
to what standard they are going to be restored.
Nelson stated he had the same concern about what the standard is. There is
no definition of what significant is. There are going to be impacts to anything.
When they use the terms the County is supposed to use, they need to have
definitions and criteria.
(Clerk's Note: End of tape one, side A.)
Hoag stated she had difficulty locating the language that was substituted for
the vegetation conservation objectives. Wenger stated he would find out.
Nelson liked the idea of restoration, not just protection. He asked about
page 21. He read from item (b)(ii). It was confusing. Wenger stated it comes
from the original language in the act.
Nelson recommended they put it in clearer language. He recommended they
try to say what they mean as concisely as possible. Wenger stated a lot of it stems
from legal documents.
Nelson asked if DOE could change the language.
Wenger stated they could summarize the language and also include the legal
language. This is a good suggestion. It is a complicated law.
Natural Resources Committee, 1/25/2000, Page 5
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Nelson asked about tribal impacts. One requirement was that permits for
sites with archeological artifacts include a requirement for a site visit with the
tribes. They are going to have to be very clear. These sites can be a detriment to
the tribe because the public can go out and damage the site. On the other hand,
the landowner should know where an archeological site is located on his or her
property.
McShane stated the nesting sites for some birds are not in the public domain.
He questioned whether that kind of an arrangement could be done with
archeological sites. Wenger stated it already exists at the State Archeologist Office.
The archeological sites are all registered and mapped.
Nelson stated they reference that the only requirement is the state
archeological findings. Wenger stated there is a state archeological law that must
be followed. He would get clarification.
Nelson stated he wanted to be clear about what documentation is required,
as referenced on page 49 of the document. Wenger stated the existing master
program already has that language. They can use that existing language.
Nelson questioned whether there is any change from the original. Wenger
stated the County master plan is a very good one.
Hoag referred to the language on packet page 55 regarding restoring
ecological functions wherever feasible. This is about flooding, not riparian corridors
on streams. She offered language for consideration, "retain or enhance ecological
functions." That would mean that someone doing a flood project could not hurt the
ecological functions. They either have to keep them or enhance them. It puts a
different threshold on the requirement and removes the vagueness of the term
feasible. They need to do flood management. Wenger agreed.
Hoag questioned how the committee felt about that language.
Nelson stated they could put it down as a recommendation. They are going
to have to deal with it, and the County will have to deal with it when they do their
actual planning.
Hoag stated this is a draft, and the County Council makes comments on it.
The Council should make comments in a letter. She wanted to know if the
committee agrees on this.
Nelson agreed that greater flexibility for any of the communities or any of the
concerns is fine.
Hoag stated she wanted this item on flood hazard to be clarified. Wenger
stated he works with the County flood group and with Fisheries all the time. If they
Natural Resources Committee, 1/25/2000, Page 6
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want specific language on those projects, the Council should draft the language and
meet with the County's flood people.
Nelson asked when comments are due from the County.
McShane stated the comments are due on March 2, 2000.
Hoag asked that Senior Civil Deputy Prosecutor Dan Gibson's comments also
be included.
McShane asked about page seven (c)(i) of the document. He questioned
how that is in the public's interest. Wenger stated it was determined by the
legislature in 1971. It would be handy to mark what language is from the existing
law.
McShane asked about page 53 of the document, item (ii)(H). It discusses
existing shoreline stabilization structures and the repair that needs to be done. It
needs a geo- technical report to go with it. It is contentious, but there are a
number of bulkheads that are probably quite harmful. Wenger stated there are a
lot of structures that don't need a geo- technical report, but some need one very
much. They could have additional criteria to pull out the extreme cases. It is not
appropriate to apply it to everything.
McShane stated that when they allow people to build bulkheads, they have
an impact on the neighbor's property rights. From a geological point of view, there
was no erosion at that site for years. The ordinary high water mark hadn't changed
for 30 years. All of a sudden, it moved back 16 feet. The bulkhead had been built
without any geo- technical report.
Wenger thanked the committee for their input. The comment period ends
March 1, 2000.
Nelson questioned whether they would receive answers to their input.
Wenger stated they would group the responses. It is very important, and will be
the cornerstone of protecting salmon. If they can do as much as they can with this,
hopefully they can get buy -off from the federal government. He believed they
could make this work. He has a sense of where everyone is coming from. He
would be happy to work with everyone.
Dan Gibson, Senior Civil Deputy Prosecutor, stated that, as it pertains to
Public Works, an area of concern is flood hazard reduction. The committee's
comments are similar to department's comments. There is a need to respond soon
to major problems to avoid major mass wasting of farmlands. They need to strike
a balance, but a delay should not be a means of making decisions. Also, the
allocation of the burden on issues of restoration is an issue. They have to ask if the
burden of restoration will always be placed on the landowner as a condition of
permitting, or whether it will be recognized as a shared burden. It is a
philosophical question to be addressed within a shoreline management program. It
Natural Resources Committee, 1/25/2000, Page 7
1 is something that should be kept in mind. It is typical that agencies will look to the
2 simplest place for fixing the burden. If one can fix the burden in relationship to a
3 permit, it is convenient, but it may place a greater burden than what an individual
4 property owner can shoulder. There should be recognition of the need for a
5 mechanism to spread the burden so that restoration is achieved, but not on the
6 back of an individual.
7
8 Nelson stated that when the County did the Comprehensive Plan, they had to
9 consider economic impacts. He asked if that was included. Gibson stated it was
10 included. They are looking for a reasonable allocation of burden so restoration
11 happens. There is a continuing concern of their ability to work in- stream on a
12 bridge construction. The Shoreline Master Program is of lesser concern to the
13 department.
14
15 Sylvia Goodwin, Planning Division Manager, stated that currently the Land
16 Use Division has to enforce the regulations. She had some concerns because the
17 Planning Division will have to write the plan. In general, it is a lot of work within a
18 short time frame. They did not include anything in their budget to write this plan.
19 It allows the County two years from the date the rules are adopted. Depending on
20 the detail, it will be a lot of work for the County. There are extensive amounts of
21 shoreline in the county. Now, the geographic information system (GIS) and
22 mapping system is general in detail. They don't have specific data on the detail of
23 wetland, vegetation, and structures. There will have to be funding and staff
24 resources devoted to that. They probably can do it in -house if there is not a lot of
25 other things to do. Hopefully there will be state funding. That is a message that
26 needs to be sent to the state. Another suggestion would be that they use a phased
27 deadline. In the regulations, she was concerned about the Critical Areas Ordinance
28 (CAO) requirements. The County spent a lot of time rewriting the CAO. There are
29 conflicts with these standards, that begins on page 40. This requires categories of
30 wetlands. The County decided not to do this. They look at the functional rating
31 system of the wetland.
32
33 Hoag questioned whether the County's would integrate with the plan.
34 Goodwin stated she hoped so, but the plan says they will have categories, yet
35 Whatcom County did something more creative. There is also talk of the no net loss
36 of wetlands, which is a federal concept that they try to do. The County determined
37 to evaluate no net loss of function, as opposed to acres. Either the County needs to
38 adapt to that, or the state needs to have flexibility. It is the same as the mitigation
39 sequencing. There is a state recommended mitigation sequence. The County
40 adopted a more flexible variation. She would hate that this would require a re-
41 write of the CAO.
42
43 Nelson stated they seem to have their own conflict. After that language, the
44 plan discusses functions and the preservation of functions. Goodwin stated it may
45 be compatible, but they need to decide whether they want to go together.
46
47 Hoag asked if they could have categories define the function of wetlands.
48 Goodwin stated the County decided not to do that.
Natural Resources Committee, 1/25/2000, Page 8
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Goodwin also had concerns on flood hazard reduction and the water quality
and stormwater requirements. The County is now working on stormwater
requirements. They have existing flood hazard plans that are fairly good. They can
adopt those ordinances by reference. She was concerned about trying to integrate
all the ordinances into the shoreline program, and then have the state have
jurisdiction over what they do now locally. It is a cumbersome process to adopt
and amend shoreline programs. They keep local authority to make those decisions,
rather than go through the cumbersome state process for everything relating to
flood hazard and shoreline. She liked how the state required that all the programs
be integrated, but they need to have a clear defining line between what shoreline
permits and projects are and what they aren't. She asked to be involved as they
continue to work on this because ultimately they will have to write it.
2. DISCUSSION AND REVIEW OF THE 1999 NOOKSACK SALMON
RECOVERY ENFORCEMENT TEAM SUMMARY REPORT (AB2000 -068)
McShane stated there was a positive feeling about the program.
Ralph Woods, Washington Department of Fish and Wildlife (WDFW) Sergeant,
was the team leader for this project. He was available for questions
McShane stated the report documented a hydraulic project approval (HPA)
violation. He asked the status of the violation. He liked the idea of spotting those
issues that are not directly WDFW, but are pursued once identified. Woods stated a
problem with HPA is the understanding. It is difficult to handle. From the Fish and
Wildlife side, they are concerned with fisheries resources. With this violation, the
individual lost property. Rather than go through the permitting process, he just
dumped soil and concrete that didn't protect the bank. It was documented. Like so
many HPA violations, they've only had one go to court to date. They get put off. If
there are serious violations, it is their right to hire an attorney. It takes a long time
to get to court. This was one of many actual HPA violations they came across.
With a lot of them, they tried to be educators. They may write an incident report
and work with the prosecutor and violator so it doesn't go to court. They don't
have any resolution with this instance.
Hoag stated at the salmon meeting there was a summary of what occurred.
She was concerned about "areas to consider for improvement." They've asked that
the Council give feedback on this issue. The majority of the listed items are a good
idea. The second item under "areas to consider for improvement" is regarding
cross - deputation of the team members. She asked what that would look like to
cross - deputize with the tribal officers. She questioned whether Fisheries could
enforce on the reservation and tribal officers could enforce off the reservation.
Woods stated that was correct. This was put in as a method to get everyone
working on an equal basis. A majority of the violations and contacts are off the
reservation. It put the burden of work on the state officers who had the authority.
The end results are all the same. Through cross - deputization, the folks on the
Natural Resources Committee, 1/25/2000, Page 9
1 team have to meet the Criminal Justice Training (CJT) standards set by the state.
2 CJT is a criminal justice training school. Only the people that come from the tribes,
3 as well as the state Fish and Wildlife officers, can be on the team if they've been
4 through the academy. The Lummi officers have been through the training. They
5 are working as a team and have the same enforcement knowledge. The officers
6 can contact the people using the river. They are trying to overcome the tribal /non-
7 tribal feelings. They could not enforce every criminal violation. Enforcement would
8 be specific to this issue.
9
10 Hoag stated it is not appropriate. The more appropriate consideration would
11 be that all members of the team have the training. However, when tribal members
12 have enforcement off the reservation, and vice versa, most people would like to
13 stay out of that issue. It is more appropriate to have them separate. She wouldn't
14 support cross - deputization. Woods stated he has had much experience with tribal
15 issues, much of it unpleasant. He sees the need to build partnerships with the
16 tribes and counties. This is one way to bridge the partnerships. It will accomplish
17 all the goals they will need to do. During this project, he was more comfortable
18 working with the tribe now than years ago. There are more developed relationships.
19 They are coming together.
20
21 Hoag stated a partnership is a good thing. If they are going to cross -
22 deputize, however, people's toes get trampled and it becomes a negative
23 experience. Page 22 of the report dealt with other options for future enhancement.
24 She supported the second item listed. The second bullet suggested they seek
25 funding to support the Nooksack River Enforcement Team (NSRET) as a full -time,
26 year -round team for five years. She didn't support funding for five years because
27 they don't have the funding and they should not work year -round on the river. It is
28 not a wise use of the resources. She felt the same about the next bullet point.
29 There is a habitat biologist on the County staff. They don't have the funds to staff
30 another one on this team. She asked that they work with the County habitat
31 biologist. She felt the same about the bullet point on packet page 99 for the same
32 reasons. Woods stated that he was obligated to present some options. They are
33 for discussion. It would be more economical for Skagit and Whatcom counties to
34 work together.
35
36 Dawson questioned how many enforcement officers are usually out. Woods
37 stated it depends on the time of year. Usually they work individually to provide as
38 much coverage as possible. If they worked just at night for enforcement, they
39 would miss the opportunity to talk to the people during the day and educate them.
40
41 Dawson suggested they could have a tribal officer and a state officer work
42 the same shift together. Woods stated that is a possibility. He can live without
43 cross - deputization. The Lummis don't want it either.
44
45 Nelson stated the committee needs to decide how this impacts the process to
46 protect the fish habitat and salmon. Before he provided an opinion, he wanted to
47 hear that assessment from Woods, and what would be an effective means to
48 preserve and protect the salmon habitat. Woods stated they need a year -round
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team. Habitat issues are year -round issues. The Nooksack Salmon Enhancement
Association (NSEA) goes to the streams and plants trees. He will get calls from
NSEA about people who are tearing up their work. That is why it is needed year -
round. As the State Department of Fish and Wildlife, they enforce year- round.
They have a level of protection that doesn't meet the level that they have here.
The budgeting process is ongoing. WDFW requested eight officers for Endangered
Species Act (ESA) violations. There are no ESA officers in the governor's budget.
They don't know what the legislature will do with that. A higher priority for his
department is the dangerous wildlife.
(Clerk's Note: End of tape one, side B.)
Woods stated they respond immediately to dangerous animal incidents.
They also have ESA saltwater issues. In their ESA salmon planning, they ended up
committing ESA patrols on the saltwater. He was happy that there are people
dedicated to the river. They go as far north as Cherry Point. They do patrol in the
saltwater. The primary thing was to get together with the tribes and focus in areas
where there are known problems. A survey in the early 1980s listed several
salmon species as critical. He attempted early on to get extra funding specifically
for the river. He was happy with last year's funding. They contacted a lot of
people and received a lot of good feedback from the community. The interaction
with the people on the river was amazing. His primary function is to educate and
act as an intermediary between the rules and the people using the rules. They
contacted a lot of farmers initially who were pumping manure almost into the river.
He has become an extra set of eyes for DOE. They contacted the farmers who were
happy to change their operations. They work with DOE, Whatcom County Planning,
and the State Department of Natural Resources (DNR). It wasn't just the tribes
and the state. It was many agencies working together. They talked to some
people who were targeting the endangered species. By catching these folks, the
word got out quick that they were on the river. The netting violations dropped
dramatically. They haven't gotten adjudication on that yet because the tribe's rules
aren't strong on how they process these folks. There are loopholes in their rules,
but they are working on it. They contacted some non - Indian folks who were
netting in areas that had Spring Chinook. The end result was heavy fines and a
forfeiture of their vehicle. That stopped all the netting in the Paradise Valley area.
If they aren't keeping the folks off the fish as they are trying to spawn, then it
doesn't do them any good to do habitat protection. He originally recommended
they be funded for 12 years, because that is the length of time for several salmon
life cycles. It was a very successful program. The people can see where their tax
money is being used. They pass out information to the folks on the river. They get
good feedback.
Nelson stated one of his concerns was that salmon isn't a one -year program
that will improve in one, two, or three years. He was also concerned about the
cumulative impacts. The more eyes they have, the better able they are to preserve
the fish. He was inclined to fund this team for five years so the people of Whatcom
County know they are serious about this. It is important that the enforcers know
there is a five -year commitment. Education is a key issue. It will help educate the
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people individually about what is harmful. It will also educate the community as a
whole. The results demonstrate that it is a yearlong process.
Hoag stated they did get a lot of good feedback from farmers. The
commitment is not lacking from the Council. She would rather have something that
is flexible so this can be reviewed every year and made better. She questioned
whether a non - deputized person could be doing education and contact, and then
refer violations to the enforcement officers. Woods stated it can be done, but the
non - deputized officer has no authority to ask a person to see a fishing license. If
they see a HPA, they could call the WDFW. The Forest Service already funds
someone in that capacity on the upper river. A non - enforcement person could do
that strictly in an ESA focus. Last year, one of their officers did a lot of education
on the river.
McShane asked about options for future fisheries enforcement enhancement.
He questioned Fish and Wildlife's ability to pursue prosecution, and whether this
would enhance their ability. Woods stated that many times restoration of what
these folks have done is more costly than giving them a ticket. Many people view
the violation as a cost of doing business. They are trying to get a stream in a
condition better than what is was. Many people would rather do that instead of
have a criminal citation or record. Often time, the final outcome depends on the
judge's decision. King, Pierce, and Snohomish counties combine their efforts for
salmon recovery. He also looked at Skagit County and questioned whether
Whatcom County can get more for its dollars by including Skagit County. He
realized they need a habitat biologist to be available to respond immediately to a
violation. He also thought about providing a portion for funding for a prosecutor
who would be dedicated to prosecuting the cases when they exist. He didn't
include budgeted amounts. When he wrote the report, he was trying to educate
everyone. He could put together some figures.
Nelson stated they would need a budget proposal for each option. He
questioned whether they are generating revenue from the fines. Woods stated it is
not dedicated back to the team. All the fine money goes back to the state's general
fund.
Nelson questioned whether there was a way to change that if the County
pays for enforcement. Gibson stated there is a state formula that applies to the
disposition of fines. They would not be able to set up a local fish court without a
change from the legislature on the use of the revenue.
Hoag stated it seemed that they had applied for funding on the state grant,
but was unsure of the outcome. They wanted to have backup funding from the
County. She recommended that this be discussed in Finance Committee to discuss
funding.
McShane stated this was ranked as project number six. He was doubtful the
Salmon Recovery Funding (SRF) Board would fund it. The County needs to move
along if they are going to fund it.
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Hoag stated there was consensus from the Council to go forward with this.
She questioned what the Public Works Department wanted from them. Gibson
stated he did not recall what the department needed from the Council.
Nelson moved to recommend approval of the five -year funding and the
cross - deputization. He also recommended the team use the County fish biologist.
McShane stated what they propose to fund would be brought forward as the
same program that was done last year, but they would like to consider budget
figures. The funding for the independent fish biologist would come separately.
Woods stated the cross - deputization would be something negotiated between the
tribe and the state. They interact with the Sheriff's Office a lot, but the state has
full police authority statewide. They attempt to stick with their primary functions.
Steve Seymour, County Fish Biologist, stated they have a ranked project list.
Some of the difficulty the habitat committee and the Joint Technical Advisory Group
(JTAG) committee had was that the list was to focus on habitat. The Lummi
created a proposal that looked like it was focused on habitat, and called it fish
passage. The concept was that they need to get the fish up the river. It is
legitimate. They had difficulty in ranking these because some of the committee
members felt it was outside the scope of the SRF Board. However, it will be
submitted. There is some advantage to having a commitment from the County
before they go to the SRF Board. Ideally, they will have state funding for this
program. This may be a stopgap funding measure. Ideally, WDFW and the tribes,
who are the co- managers, would make this a priority and the state would dedicate
officers. It will help the County move forward on ESA.
Hoag spoke against the motion. The WDFW has officers, DOE has shoreline
jurisdiction, and the Forest Service funds someone to enforce up river. The County
should not fund state agencies' jobs. There is full commitment from the Council to
support the effort. She didn't like the five -year program. They need to do it on a
year -by -year basis. She also did not like the idea of cross - deputization. What they
have now is positive and working. When tribal officers are enforcing against non -
tribal people, and vice versa, people will be disturbed.
Brenner stated she didn't support the flood tax, which is for three years. She
questioned whether the Council has the right to cancel the program in the middle of
the five years. Gibson stated they adopt the budget on an annual basis, but
agencies count on a five -year program lasting five years. It is for continuity, but
not a legal issue.
Brenner stated she had a problem with cross - deputization. Woods stated
WDFW already takes care of the tribes. It is bringing the tribal folks onto their side.
Except for going on the reservation, they handle tribal violations off - reservation
already. The cross - deputization in this instance was for a small area and a small
issue.
Natural Resources Committee, 1/25/2000, Page 13
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Brenner questioned why the tribes were opposed to cross - deputization.
Woods stated he wasn't involved in that negotiation, but was told the tribes
believed WDFW would have a complete enforcement authority over the reservation
for any violation, rather than enforcement only over the very narrow scope of
fishing.
McShane stated that is not within the County's jurisdiction.
Motion carried 2 -1 with Hoag opposed.
OTHER BUSINESS
Jaime Berg, citizen, asked that the committee recommend the resolution
requesting that the Washington State Legislature pass legislation to
implement recommendations of the Citizens' Pilot Project SB5536 Advisory
Committee (AB2000 -076).
Hoag recommended that language be added to the first sentence, "...is the
sole drinking water source for more than half of the residents of Whatcom
County...." She also recommended that a word be deleted, "...Advisory Committee's
recommendation; NOW THEREFORE BE IT RESOLVED...." She stated that she
supported the resolution and moved to recommend approval to the full Council.
Brenner supported it, but wanted clarification of whether more than half or
less than half of the residents receive water from Lake Whatcom. Berg stated she
would check that statistic before the evening meeting.
Sylvia Goodwin, Planning Division Manager, stated she expected it would be
slightly less than half.
Dawson stated there was language about not reimbursing the state for any
lost revenue. That made her uncomfortable, in terms of setting a precedent.
However, she believed there may be an agreement between the County and the
state to establish the regulations. Berg stated it was the landscape plan. They are
still waiting for it. It is the interagency agreement between Trillium and the State
Department of Natural Resources (DNR). She was not a part of the Advisory
Committee. They looked at compensation. The charter stated they need to come
up with revenue for compensating the trust if they went above and beyond RCW
90.48. The committee looked at that with the Department of Ecology, the
Department of Health, the City of Bellingham, Whatcom County, and Water District
#10. They all agreed they were not going above and beyond RCW 90.48, so there
wouldn't be a reason to provide any compensation.
Dawson asked Gibson for his interpretation. Gibson stated he had not seen it.
Nelson stated he was not prepared to vote on the resolution. They need to
read the advisory committee's recommendations before passing the resolution. He
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questioned whether there was citizen review on the recommendations. Berg stated
there was no citizen input.
Nelson questioned whether they are going to pass a resolution without a
hearing.
Brenner stated they have done that before.
Nelson questioned whether this went before the Forestry Forum. Berg stated
it had not. This just became public. The committee came up with the
recommendations and it went to Commissioner of Public Lands Jennifer Belcher.
Belcher was to submit her rebuttal report that would explain what DNR can do in-
house and what needs legislation. State Senator Harriet Spanel just drew up the
bill regarding the recommendations the previous day. They have run out of time.
McShane stated this came from a piece of state legislation that was passed
last year. They formed the committee to make recommendations to the state
legislature for legislation that would be acted on this year. The current piece of
legislation that has been put forward in the senate is to implement those
recommendations.
Nelson stated it has not gone through public review to determine whether the
citizens agree with the recommendations. He believed the committee's public
process was limited, so it is a request from the legislative body at the state level.
He questioned why the County is agreeing to the recommendation when it hasn't
had any public process.
McShane stated there is a deadline for the legislative session. If it isn't
passed, DNR will harvest timber as though this process never occurred.
Hoag stated the recommendations were given to the councilmembers last
week. This is a resolution stating how the County Council feels about the
recommendations.
Nelson stated the resolution is in support of the advisory committee's
recommendations.
Hoag stated that was correct.
Brenner stated they regularly pass resolutions supporting proposed state
legislation without any public process.
Dawson suggested they put it into the Council packet for the next meeting so
the public can see this with the recommendations, and so they can come forward
with testimony.
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McShane stated the recommendations could not be brought up publicly until
the legislature was ready to act. It wasn't something the advisory committee could
hand out to people.
Nelson stated the public has the final say.
Hoag questioned the timeline on this. Berg stated there is a very short state
legislative session. Spanel just introduced the bill and Representative Kelli Linville
is bringing it to the House. It will go quickly. Dick Little of the City of Bellingham is
lobbying for this. It is going to go through the process quickly.
Hoag stated she agreed with Dawson's suggestion if it won't be too late. Berg
stated she was hoping for a decision right away.
(Clerk's Note: End of tape two, side A.)
Hoag asked that Berg find out if they have time to put this in the packet in
two weeks.
McShane stated there is going to be a public hearing on this before the Board
of Natural Resources in Olympia on February 1. Having Council approval at the
evening's meeting would be helpful.
ADJOURN
The meeting adjourned at 11:55 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, 1/25/2000, Page 16