HomeMy WebLinkAboutNatural Resources June 27 20001
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
June 27, 2000
The meeting was called to order at 9:33 a.m. by Committee Chair Dan
McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
L. Ward Nelson
Absent:
Connie Hoag
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. ORDINANCE AMENDING WHATCOM COUNTY CODE 16.20, WHATCOM
COUNTY SHELLFISH PROTECTION DISTRICTS (AB2000 -188A)
Nelson moved to recommend approval.
McShane recommended the ordinance on packet page four.
Regina Delahunt, Environmental Health Services Supervisor, stated a few
issues need clarification. The first issue was related to the wording of the ordinance
regarding implementation of the plan. The Health Department wanted clarification
on what they mean by implementation. There are many things in the plan that the
County and Health Department doesn't have control over accomplishing. It would
be better to say that the Health Department would coordinate and oversee the
plan.
McShane agreed.
Delahunt questioned whether it was the intent of the County to be
responsible for the work.
McShane stated that wasn't his intent.
Nelson moved to amend language on packet page four, line 31, "...that
coordination, review, and reporting of this plan..."
Motion to amend carried unanimously.
Bruce Roll, Water Resources Manager, spoke on the issue with funding. As
they prepare for the July kick -off of the budget process and the upcoming work
session, they would look at what is on the table and how much revenue from that
fund could be sent out. They will find that they don't have adequate funding from
the Water Resource fund to accommodate everything out there. He is looking for
Council guidance. He hoped to discuss the estimated costs of these things at the
July work session for Water Resources.
Natural Resources Committee, 6/27/2000, Page 1
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McShane stated that is the reason he mentioned the flood fee as a funding
source. He wanted to see that money there. He is not telling the Water Resources
Division the level of funding to set up. They need to look at priorities in the plan.
It is a big plan. He was not sure whether or not it is all doable in two years. They
need to prioritize. He would look for this in the budget.
Delahunt stated that if they cite the flood fee in the ordinance, the money for
the activities has to come out of the flood fee. They may need more flexibility than
that.
Nelson stated he believed the original flood control ordinance had money
going back to Blaine and other areas because they are not in the flood plain. That
money would be used for water resources. He asked if there was a way to
anticipate percentages on that basis. He questioned whether they could determine
a definitive dollar amount that can be used for water resources in those
communities.
Dan Gibson, Senior Civil Deputy Prosecutor, stated there is nothing in the law
that directs the funds to be distributed in that fashion. There is a working
understanding that, practically speaking, people outside the flood fee who are
paying in should be given proper consideration of projects that would give them
their money's worth. In terms of the day to day administration of the program,
staff is sensitive to the fact that areas outside of the flood plain are looking for a
return on their payment. It would not be wise to enshrine that in a formula, but
only through the process of consideration as projects come forward that parties
have the expectation they will be treated fairly. He recommended making certain
that projects coming forward are meritorious in terms of expenditure of public
funds.
Nelson agreed with the concept that if they are going to outline certain
dedicated funding sources, they would be locked into that. They may not want to
be locked into a funding source, depending on the community needs at the time.
He questioned which department would submit the program into the budget.
McShane stated he was comfortable in allowing the flexibility, but he intends
to make sure that this need is not lost. There is that sense in the district. They've
had to struggle. They want to make sure they are on a priority list. Both
departments are asked to do a lot. He wanted to make sure real progress will be
made. He didn't have a problem striking the language, "...from the flood fee."
Delahunt stated the Water Team would discuss priorities and budgetary needs for
2001. That material will be submitted to the Council during the budget process. It
would be up to the Council to decide where funding goes.
Nelson moved to add language, "A budget will be submitted at the
appropriate time by the Health and Human Services Department with coordination
with the Water Resources Division."
Delahunt stated they can't do the work unless they get additional resources
to do that or stop doing something else.
Natural Resources Committee, 6/27/2000, Page 2
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Roll asked for clarification. As they begin to plan, they want Council
guidance as they also consider Portage Bay. He questioned whether they would
perform similar types of services for Portage Bay. This has bearing on what the
staff brings forward. In addition, there are also many marine related issues that
are tied to this. There are three pieces of work tied to marine issues. He
questioned whether they anticipate having a similar strategy for Portage Bay.
Nelson stated his preference was that, whatever happens, they need to have
a definitive plan. This needs to come to the Council to decide the appropriate
expenditure, the direction to go, and to involve other agencies. He was concerned
because they don't want a disjointed effort. He wanted the effort to be
coordinated. Roll stated the issue is the staffing that may be needed.
Nelson questioned who is doing staffing. Roll stated they don't know yet.
Nelson asked if the administration is looking at this. Roll stated it is. They
would work through this issue and the others using the same process.
Nelson suggested bringing the staffing needs forward at the same time, then
they could coordinate the programs.
McShane stated Portage Bay is a different animal.
Nelson stated Drayton Harbor has already been around a while and needs to
get going.
Roll asked if a priority in 2001 is the County's response to Drayton Harbor.
As they move forward, they would coordinate while identifying priorities in
relationship to Portage Bay.
McShane stated Portage Bay is getting addressed a fair bit with the state
Department of Ecology (DOE). The total maximum daily load (TMDL) process has
not happened yet in Drayton Harbor.
Nelson stated Roll is asking how to get the funding. They only have limited
resources. The goal for 2001 is funding for and implementation of the Drayton
Harbor plan. He suggested they bring that forward so the Finance Committee can
look at that and debate it.
Roll stated he was hoping to present this at the July Water Resources work
session.
Nelson stated he wanted to be able to measure the outcomes.
Delahunt stated the first "Whereas" statement is not correct as it is stated.
The two districts are not combined. The amendment established Portage Bay.
McShane stated they don't need to have it in there because they are not
discussing Portage Bay.
Natural Resources Committee, 6/27/2000, Page 3
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Delahunt stated they need to amend WCC 16.20 to extend the dates. They
need to attach to this ordinance a redline /strikeout version of the ordinance
showing what would be amended in WCC 16.20.
McShane referenced packet page two and moved to add the "Whereas"
statement number one to packet page four as first "Whereas" statement in that
version, and then amend language on page four, line 10, "WHEREAS on March
24 ... WCC Chapter 16.20 to
affil create the Portage Bay..."
Nelson stated Portage Bay wasn't created until 1998. Delahunt stated that
was correct.
McShane stated the first "Whereas" statement would be the statement from
packet page two. The first "Whereas statement on packet page four would become
the second "Whereas" statement, with his proposed language change stated earlier.
Motion carried unanimously.
Nelson moved to amend packet page four, line 24, "...district and the Portage
Bay Shellfish Protection District shall be extended..."
Delahunt suggested adding the third "Whereas" statement from packet page
two to the ordinance on packet page four. It should become the third "Whereas"
statement. That would reflect the extension of the sunset date from 1998 to 2000.
Nelson so moved.
Motion carried unanimously.
Delahunt suggested attaching the strikeout and underline version of the
changes to Whatcom County Code (WCC) 16.20. It would have to be referenced as
attachment A or B.
Roll stated he would get a memo on the Water Resource Inventory Area
(WRIA) scope of work that extended the comment period. They would have until
July 14 to review it and make comments.
Jan Hanson, Drayton Harbor Shellfish Protection District Advisory Committee,
stated she was uneasy about not mentioning the flood fee in the ordinance.
Someone from the advisory committee figured out how much Blaine and Birch Bay
have contributed to the flood fee. It is about $3 million. She didn't mind paying for
flood control of the Nooksack River, but she wanted Blaine's share to be dedicated
to this. People in the community are unhappy that they are not seeing any specific
return on their contributions to the flood funded. She wanted it mentioned as a
specific source, in addition to other possible sources, of funding for the Drayton
Harbor Shellfish Protection District.
Nelson stated he agreed. That is why they had the discussion. In reality,
that is where the money would probably come from. There are no other sources.
Natural Resources Committee, 6/27/2000, Page 4
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The County doesn't want to restrict themselves from accepting other funding
sources.
COMMITTEE DISCUSSION
3. DISCUSSION REGARDING THE CANYON CREEK ALLUVIAL FAN AREA
(AB2000 -114)
Paula Cooper, Special Projects Engineer, stated this is part of the ongoing
discussion on Canyon Creek. There are two things to discuss. She had a meeting
with the Federal Emergency Management Administration (FEMA) last week in
response to the maps that the County appealed. The County is going to work with
FEMA to develop a new set of maps. It won't include very good mapping for the
Nooksack River because the County hasn't yet done its study. FEMA said that it is
willing to include information like the alluvial fan hazard area on their maps. It may
not be an official FEMA zone designation that would have insurance implications,
but it would be mentioned on the map. That would provide disclosure. FEMA looks
to the County to put information on the maps that would help the County regulate
hazards. There are other places in the country that are doing that now. A lot of
people look at the flood maps when they come in preparing to buy a house. That is
one avenue that doesn't have any legal implications.
Gibson stated that if it is identified on the map, it should be done accurately
or with sufficient disclaimer that the lines are not accurate.
Cooper suggested they have the disclaimer. In addition, she introduced
Marty Best, with the Washington Department of Emergency Management. He
volunteered to help the County get a better understanding of how the hazard
mitigation grant program could be a component of the long -term solution.
Marty Best, State of Washington Department of Emergency Management,
stated he is the State Hazard Mitigation Officer. He has been fortunate to have
been doing that during the last 15 disasters declared in this state. He became
involved in this while working with Ms. Cooper to address the repetitive loss flood
properties within the County. The U.S. Congress is perturbed at FEMA for
continuing to put insurance money in homes that have been flooded multiple times.
They've paid more in insurance claims than what the property is worth. That is
how they got involved in this topic. He administers the Hazard Mitigation Grant
Program and other programs. It becomes available following a presidentially
declared disaster. They have done projects in Whatcom County following the fish
disaster of 1994. They did some salmon habitat in the county and through the
Public Utility District (PUD). The program handles a wide gamut of problems,
including acquisitions, relocations, and elevations. The closest program they are
doing now is in Skagit County. They are doing about $3.5 million in acquisitions
along the Skagit River. The primary thing is to remove homes, properties, and
structures out of harm's way, and then to maintain the land as open space for
future flooding.
Natural Resources Committee, 6/27/2000, Page 5
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They cannot duplicate other federal programs on dikes, levees, berms, flood
walls, sea walls, or other structural solutions under the purview of the Army Corps
of Engineers or the Natural Resources Conservation Service (NRCS). FEMA has
backed away from those. During the 1990 floods, a lot of money was put into dikes
and levees around the state through FEMA. That changed dramatically in the 1995-
1996 floods. FEMA was still able to do some stream bank restoration, but the
actual levee that was certified by the Corps is the Corps' responsibility. Recently
FEMA policy changes say that thou shall not touch levees, dikes, berms, sea walls,
etc. That doesn't mean that FEMA couldn't do an alternate project, which the
County approached for that area in the past. There is a history of FEMA
involvement in the Canyon Creek area. An example of an alternate project is King
County's levee stretch they don't want to maintain any longer. They are going to
let it be washed out and flood the agricultural properties. They could take the
money from repairing that to buy equipment for community needs.
Dawson asked if they could use it to relocate a road. Best stated they
conceivable could, but not a state highway.
Cooper stated the alternate money project is available after a disaster. It is
the FEMA damage response and recovery fund.
Dawson stated mitigation should be before the accident happens. Best
stated the state Department of Community, Trade, and Economic Development
(DCTED) administers watershed acquisition programs. His focus is to eliminate
future disasters and reduce the impacts of disasters, measured by the impact of the
last disaster. There has to be documented damages. He has not bought open land
or space. FEMA feels land could be zoned or codified to preclude building and to
keep individuals from greater risk. Governor Locke stated they need to quit putting
people in harms way. The Director of FEMA, James Lee, recently stated those
communities that continue to develop in harms way in the flood plain should not
receive any federal disaster assistance. Communities are challenged because the
landowners are platted and allowed to develop under the grandfathering clause of
the Growth Management Act (GMA).
He would address the alternatives. FEMA looks for a complete long -term
solution. If one goes for an acquisition, it has to solve the entire problem, not part
of the problem. FEMA doesn't do an acquisition and then build something on top.
The property has to be maintained in perpetuity for open space. In the City of
Grand Forks, FEMA bought dozens of homes, and then the Army Corps of Engineers
wanted to build a levee, but it can't. By Congress's direction, it has to be
maintained as open space. The land is supposed to be there for flooding. If they
wanted to build a levee, then the Corps should use its money. It is a federal turf
issue. People at the state and county levels get stuck in between.
Nelson questioned whether there are any maps of this area prior to the
1970's. Cooper stated there are aerial photos.
Nelson stated the river didn't come down this course before.
McShane stated the river used to make a sharp left turn.
Natural Resources Committee, 6/27/2000, Page 6
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Cooper stated there was anecdotal evidence from residents, who said that
the state only wanted to make one bridge when they built that road.
Nelson stated that is what he heard, and wanted to know if that was correct.
McShane stated there might have been an overflow channel.
(Clerk's Note: End of tape one , side A.)
McShane stated there is a low spot.
Nelson asked if they know for sure if anything was done at that time, or if
there is only anecdotal evidence. Cooper stated there is only anecdotal evidence.
McShane stated that has little to do with what is going on further up the
river.
Best stated this situation is prevailing all along the western half of the state.
The challenge is how to accurately map hazard areas and move buildings out of the
way. Buying homes is a permanent solution.
Nelson questioned the maximum distance from the river that FEMA would
buy property. Best stated they look to the county for guidance in setting the
priorities.
Nelson stated the Nooksack River is a wide meandering river that changes
course constantly. Best stated the federal government deals with homes in the
Midwest that cost $30,000 to $40,000 per house. Out here, the median price of a
home is $150,000. The question is how far they can go. In other counties, they
fund those with the greatest risk as shown by the amount of damage they've had or
areas close to the evulsion area. The primary focus is to remove individuals and
structures from harm's way.
Nelson stated the areas they are considering were not impacted by the last
disaster. Best stated that there are historical records from the 1980s' and 1990's
of flooding and structural damage in that area.
Nelson stated nothing has happened in that area.
McShane stated homes were taken out and the road was half -gone.
Nelson questioned the location of the potential buyout area, which would be
based on the pre- existing disaster area. He questioned whether there is a set of
rules on this. Best stated that they look at the cost - effectiveness in addition to the
acquisition of properties that have been damaged. They provide the flexibility to
the county to determine what is at risk.
Cooper stated that designating an area for buyout would be favorable in
FEMA's eyes if Whatcom County doesn't keep allowing development on the other
lots.
Natural Resources Committee, 6/27/2000, Page 7
1 Best stated that if the County is building and maintaining a levee, and the
2 County is assuming control of it to assume a certain level of flood protection, then
3 the County has "solved the problem," and the question is why FEMA should buy out
4 properties. One city had a six -month moratorium on all building permits until the
5 Army Corps of Engineers finished mapping the area, then identified where they
6 could build without being in harm's way. In this particular case with the alluvial fan
7 and other hazards, he didn't know if the County could get to that level of detail.
8
9 Nelson stated he preferred to have a clearly identified area that says where
10 the County doesn't want to allow building to occur, an area reserved for future
11 flooding and flood mitigation. Through engineering, they would determine the area
12 that would take away the impact of Canyon Creek from eroding other properties.
13 He questioned whether the County could do that. Cooper questioned whether they
14 could come up with a good map that clearly defines the hazard areas. Mr.
15 Middleton told her that five different geologists would come up with five different
16 sets of boundaries.
17
18 McShane stated they could create a map. The maps that exist can be
19 tweaked. The only issue regarding close properties was the elevation surveys and
20 where the creek would go if it went through evulsion. An accurate elevation control
21 on that fan has not been done, and would nail down the boundaries pretty closely.
22 The map that Interfluve put together is close, but the upper end line could use
23 some refining.
24
25 Roland Middleton, Land Use Manager, stated he did the first review when he
26 worked with the Public Works Department. Steve Fox, who was hired to do the
27 mapping for the Critical Areas Ordinance (CA), followed it up. He and Banks did a
28 formal map after the CAO required that it be reviewed. The County denied a couple
29 of building permits until that was done. Since then, the maps have been refined
30 and reviewed further. The boundary line needs additional work. There are some
31 given areas that are clearly in harm's way. However, on the ancient fan, it is risk
32 analysis to determine which lots would and would not be okay. There are several
33 lots that are clearly in danger.
34
35 Dawson asked how long Mr. Best expected the moratorium to be enacted.
36 Best stated this city put it on for six months because it was working with Corps on
37 new maps. They were able to identify which properties were and were not in the
38 flood plain /flood way. The county adopted the map of that community.
39
40 McShane questioned what happened after the maps were made. Best stated
41 the county allowed building in areas not affected by floods.
42
43 Nelson questioned whether those were the areas that FEMA bought out. Best
44 stated most of the area they purchased was in the flood way.
45
46 Dawson questioned where this city received the money for the acquisition.
47 Best stated they received it through the Hazard Mitigation Grant Program, which he
48 administers.
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50 Dawson stated that program happens after the fact. Best stated that is
51 correct.
Natural Resources Committee, 6/27/2000, Page 8
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Dawson stated they have to wait until it floods. Best stated there is one
program called the Flood Mitigation Assistance Program that has an annual budget
and is a competitive process. Washington State receives $200,000 per year for the
entire state.
Nelson stated the county determines the area at risk. If the areas at risk,
determined by the county, are due to the last flooding, then the monies are
available. Best stated that a community would apply and compete with everyone
else.
Nelson stated Whatcom County couldn't compete until it has definitive maps
drawn with descriptions of which areas are at -risk. Middleton stated Whatcom
County is close. They are talking about how close to the at -risk areas can a person
be safe. There are homes that are in the middle of the at -risk areas. Middleton
stated the current boundary lines are jagged. They took the Interfluve map and
the properties that the County regulates under the CAO. Instead of cutting a
property in half, if it was affected, they drew the boundary to encompass the entire
property line. The line is drawn to where they think the creek will flood. It is the
affected properties.
Nelson questioned whether an applicant could refuse to be bought out. Best
stated he or she could refuse.
Nelson questioned whether FEMA pays for flood damage when that person
refuses to be bought out. Best stated it does not. The National Flood Insurance
Program is a premium, homeowner based program. If the owner pays the
premium, he or she will get the money.
Cooper stated that FEMA told her they are in the process of changing the
Flood Insurance Program so that flood insurance is for over -bank flooding and not
for seepage problems or erosion hazards. She is looking into that.
Nelson stated that The Logs Resort is in this area of description. If The Logs
Resort refused to be bought out, he questioned whether it would be rebuilt. It is an
expensive resort area.
Cooper stated her understanding was that the house would be covered if the
creek broke out and flowed through the house. However, it wouldn't be covered if
it slowly ate away at their house, the indication is that FEMA is backing off from
insuring those erosion -type hazards.
Best stated he had heard the exact opposite. James Lee was talking to
Congress about $60 million in coastal erosion problems over the next 60 years.
There are two bills going forward. The House bill is called the "two floods and
you're out of the taxpayer's pocket" bill. If a property owner refuses to be bought
out, it is their right. However, that property owner would then pay actuarial rates
for the flood insurance. Payments are not being subsidized. Instead of paying
$100 per year, an owner would pay $5,000 to $10,000 per year for flood insurance.
To have a federal mortgage, an owner must have flood insurance.
Natural Resources Committee, 6/27/2000, Page 9
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Nelson stated they should identify the areas and then take the appropriate
actions necessary to buy out the homeowners. If the homeowner doesn't want to
be bought out, then so be it, but don't subsidize it.
Cooper stated they originally brought the alternatives to the Council for
direction. She questioned whether Councilmember Nelson's preference was the
preference of the Council as the Board of Supervisors.
Dawson stated that all they need to do is put maps together and identify the
areas for buy out.
Cooper questioned whether they don't want to repair dikes.
McShane stated the County should forget it.
Nelson stated it is another issue.
McShane stated it isn't. They can't do both the dikes and the buy out
program.
Dawson stated the property owners could try to get the banks fixed.
Nelson stated they couldn't.
Cooper stated that if none of the residents wanted to be bought out and
wanted to organize their own diking district, they can.
Nelson stated this could be re- discussed if that happens.
Dawson stated the property owners want to get a flood control district going.
Cooper questioned whether the County would establish the flood control
district for the property owners or establish a buy out program.
McShane stated the County couldn't participate in that district. Cooper
stated that was correct, if the County was going for buy out money.
Best stated they could not form anything structural in the form of a dike or
levee, or allow it in a buyout area. If they buy out the property, the County must
keep it as open space.
McShane questioned whether the property owners could do repair on the
levee, independent of the County. Best stated that if the levee is maintained, there
is no reason to buy out the properties.
Dawson stated it protects the road.
Best stated the requirement is the cost - effectiveness, according to the Code
of Federal Register. For every dollar he spends, he has to show a dollar in benefit.
If there is a levee there providing a level of protection, and the homes are behind
the levee and protected, then he couldn't justify the need.
Natural Resources Committee, 6/27/2000, Page 10
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Nelson stated that Cooper was looking for direction from the Council. The
property owners understand the concerns. They've been to the dike and see what
it is. If they want to have the dike, they should form a diking district to maintain
the dike. If the dike fails and causes damages, it is FEMA that is still involved with
flood insurance. Cooper stated she would get more information on that.
McShane stated the question is whether the levee will provide protection,
even if it is maintained.
Nelson stated that is anyone's guess. He questioned whether any qualified
person would stake their license on saying that the levee would stop a flood event.
McShane stated that if they do flood runoff calculations, a geologist could say
it would, but if they look at the landslide and think of the scenario of that slide
damming the creek, it isn't stable.
Middleton stated the river is not a pipe. An engineer can't calculate how the
river would flow. The concern is that they don't know the size of the debris torrent
that is going to come through there. He has been concerned about the dike since
before it was built. He was still concerned about giving a false sense of security to
anyone living in the hazard areas. They are not talking about a lot of water. They
are talking about a lot of big trees.
Nelson asked if Middleton would put his concern to the public. Middleton
stated he already has.
Nelson stated the County couldn't dictate to people what they can and can't
do on their own land.
McShane stated they are not dictating. The County is only saying there is a
buy out program and the landowner could still build a house in the middle of that
zone, but the County would not help a him or her build a wall that will fall down.
Nelson stated the landowners aren't clear on what the choices are.
McShane stated the choices are a voluntary buyout program, so they can still
use the property. The County has enough information that it can say that anything
built will fall if there is a landslide that dams Canyon Creek.
Nelson stated he didn't disagree.
Dawson stated many other places in the County are hazardous.
Cooper stated she would lay out this discussion. There are two options at
the opposite ends of the scale. She questioned whether they need Board of
Supervisor approval for the plan.
Nelson stated they need to take it before the full Council. His preference was
to do the buy out with an understanding of what that means. If the community
wants to stay with the dike, then they need to form a district. It is a waste of
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taxpayer money to keep maintaining the dike. The Council has been trying to form
these districts in these areas. They need to get an answer on whether the public
wants to form the district. His personal preference was not to take on the sole
responsibility to provide protection to anyone who wants to build in these
dangerous types of situations.
McShane questioned Councilmember Nelson's preference, buyout or dike.
There is no middle ground.
Nelson stated his preference is one thing. What the people living in the area
want is another thing. Those are the two options that the public has.
Cooper stated the thing that could go either way is that the County could say
it prefers the buy out option, and if the community wants to do the diking district,
then it would be their prerogative and the County would not have any involvement.
McShane questioned whether the Board of Supervisors was willing to fund
any project that this diking district comes up with. Typically, the County matches
80 percent of a project or more. If the County allows formation of the diking
district, the Council is committing County revenue to the tune of 80 percent.
Cooper stated she wasn't sure that the Council would be committing that
money.
Dan Gibson, Senior Civil Deputy Prosecutor, stated there are new shoreline
rules that address the matter of construction within geological hazard areas. The
state is heading in a particular direction. The state would scrutinize the County's
Shoreline Master Program amendments. The program says that development shall
be restricted on active channel migration zones. Development or the creation of
new lots that would cause foreseeable risk to people from geological conditions is
not allowed during the life of the development, which is 50 to 75 years.
Development that would require structural shoreline stabilization over the life of the
development is not allowed. This is proposed language for the program. He would
expect a fight over the new shoreline rules to occur in places other than this. There
probably would not be a fight over building in a geologically hazardous area. He
expected this portion of the rule to go through the way it is written. That puts the
County in a squeeze because it puts the County in the position of having to write a
program that is in compliance with this guideline. If the County wants to carve out
an exception for an area, it would have to make the argument that it is not as
hazardous as they have been saying. To say that puts them in a position of
providing a sense of security for people who shouldn't be given that sense of
security. The state's shoreline rules are steering the County away from
development.
McShane stated there is a letter from the DOE using the current shoreline
program. What they say in that letter is not different than Mr. Gibson's comments.
Nelson stated that was a problem when the County did the flood control
zone. They knew that people living along rivers are at a risk. The County
developed a taxing mechanism to decrease or mitigate potential problems from
flood hazards. He couldn't see how the County assumes a risk when the
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community has said it recognizes the risks and established a mechanism to pay to
reduce or minimize that risk.
Gibson stated there is a key difference. When they talk about that, they are
not talking about building new structures in the flood zone. That is protection of
existing structures and existing economically productive activity.
Nelson stated the County builds new structures in flood zones.
McShane stated there is a risk there. Whatcom County is mitigating the risks
as much as it can through a variety of mechanisms and tools. There are risks
everywhere. The County does make efforts to mitigate geological hazards. There
are earthquake hazards. The County tries, in the building codes, to protect people
from earthquake hazards. There is a risk to property in Everson of flooding, but the
County is doing things to mitigate that.
Nelson questioned the degree to which they draw the line and whether one of
the options is saying that this is a safe place. That isn't an option. He questioned
whether the County is agreeing that the area is a safe place to live if the residents
decide to create a flood control district and do certain things to the dike. Gibson
stated that they probably wouldn't get permits. Beyond that, shoreline stabilization
over the life of the development is not allowed in a geologically hazardous area,
which is somewhat different than a flood plain. This is proposed language.
Nelson questioned whether another option was to zone an area so it was not
allowed to have structural permitting. Gibson stated his concern was that they
have vesting provisions for already- existing lots and that provide for construction.
Nelson questioned whether all the properties in the area are platted. Cooper
stated they are. Less than half of the plats have been built on.
Nelson questioned the feeling of the homeowners in the area.
McShane stated it is a mixed bag. Some believe they are perfectly safe.
Others believe the risk is real. Some people want to recognize the risk, but still
want to live there and take the risks themselves. It is a nice area.
Nelson questioned whether changes could be done to the zoning code.
Middleton stated the CAO covers the area and requires full mitigation. They
receive inquiries and require them to have a qualified geologist review the
structure. If a geologist can locate a property, then a geo- technical engineer or
civil engineer has to design the structure for the risk. There are several different
zoning issues. He's not, as an administrator, going to say someone has a right to
rely. That is up to a judicial authority. He didn't know what someone is vested to
use. There is platted property up there. It is all platted or a part of The Logs
Resort. There are developments that exist. The majority of the area is open land,
but purchased for the use of development of a small cabin. There are also primary
single - family residences.
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Cooper stated they have whittled the options down from six or seven to two.
She would lay out the implementation path and costs for both options.
John Harod, Y Road, stated that 80 percent of the lots are undeveloped.
People who have cabins now would not partake in the buy out program. The
problem is that vacant raw land does not qualify for the buy out.
Nelson questioned whether that was a true statement. Best stated it is true
for the Hazard Mitigation Grant Program.
Harod continued to state that if they identify an area as a danger zone, it
behooves the person to build a building so he or she is covered. There is greater
risk from getting hit on the Mt. Baker Highway than there is of getting hit from the
flood when they are only there a few times per year. The only way to get a subsidy
is if there is a structure.
McShane thanked Mr. Best for his presentation.
2. DISCUSSION REGARDING WALLA WALLA ORDINANCE NO. 219, AN
ORDINANCE COORDINATING COUNTY, FEDERAL, AND STATE
GOVERNMENT ACTIONS AFFECTING LAND AND NATURAL RESOURCE
USE (AB2000 -201)
Dawson stated Dave Grant looked this over. There is a criminal provision
that she would be comfortable in deleting. The civil liability provision is adequate to
address the concern. The County would make known to the agency what its legal
authority is. There are many federal and state statutes that require the agencies to
coordinate with the County. The County does not have an ordinance that requires
coordination. That is the problem. The County needs to have something like that.
McShane stated they already have statutes that require coordination.
Dawson stated the County doesn't any have statutes that require
coordination, so the agencies can just come into the County and blow them over.
That is what has happened on an ongoing basis. The ordinance also provides the
ability for an individual to address the federal or state agency. The ordinance
makes it easier for individuals to sue without going through certain processes.
(Clerk's Note: End of tape one, side 8.)
McShane questioned how.
Dawson stated the citizen doesn't have to go to Superior Court for an
agreement.
Dan Gibson, Senior Civil Deputy Prosecutor, stated most suits against federal
agencies are handled in federal district court.
Dawson questioned whether one could bring a suit to state court if there is a
County ordinance. Gibson stated it wouldn't change the venue for actions against
the federal government.
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Gibson stated his sense was that this involved federal agency action in areas
where there is a large federal public lands ownership. The County has federal lands
within its border. This pertains to the way in which the federal government uses
and controls activities on its own land, allowing local jurisdictions a structured
opportunity for input, so if there is significant local impact, the route of input is kept
opened and is exercised. The situation in Western Washington is different than in
Eastern Washington where grazing lands are next to urban areas.
Nelson questioned Councilmember Dawson about what she was trying to
prevent or protect the citizens from.
Dawson stated she was trying to protect the County citizens from intrusive
federal and state agencies.
Nelson questioned what intrusive is.
Dawson stated one state agency told people they couldn't drill a private well
without showing impact. The closest residential piece of property was 1,000 feet
away. There is nothing that requires them to do that. They are overstepping their
boundaries. She sat in other hearings where the state agency stepped on the heels
of the Health Department to mandate things that are not in their purview.
Nelson questioned what the County would do.
Dawson stated the Council could ask the County to get involved. The County
can have oversight to determine if this happens frequently. The County could take
them to court. The County could also gives an individual some clout that requires
the state and federal to coordinate.
Nelson questioned who has authority over land use, according to the state
constitution. Gibson stated that ultimately the state government has the authority,
which is delegated to local municipalities.
Nelson asked if the state retains rights after the delegation of authority.
Gibson stated a county is free to operate within the bounds delegated.
Dawson stated that the state government and federal government are not
operating within the boundaries.
Nelson questioned whether the state has the right to step in on a county
when it doesn't like the way the county is doing its land use. Gibson stated it is not
outside the bounds of legislation and administrative rule. There are a variety of
structures in place where the state does exercise continuing oversight. One of
them is the Department of Ecology approval of the granting of shoreline permits. If
the state has stated that authority is delegated and they retain no oversight, the
local municipality is within its rights in administering as it sees fit.
Nelson questioned whether Councilmember Dawson believed that is not
happening.
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Dawson stated the state government and federal government are
overstepping their boundaries when they make rules the Health Department is
supposed to make.
Nelson stated he hasn't seen any of this.
Dawson stated she has.
Nelson stated the state retains the right to water use in the State of
Washington. State rights do not allocate down to local -level rights. He questioned
whether Councilmember Dawson wanted to have local -level rights.
Dawson stated that is what it is, within the statutes of the law. They can't go
outside those statutes that exist.
Nelson stated there is judicial recourse.
Dawson stated the County has to have a law on the book.
Gibson stated there is misunderstanding on the part of that county. To sue a
federal agency, a person must file a notice to sue with the agency. This ordinance
would allow a person to sue the agency without notice in Okanogan County
Superior Court. They have a fundamental misunderstanding of the way federal
government works. Counties do not redefine for the federal government how a suit
will occur. Under many federal agency rules, they provide an opportunity for local
input. Sometimes that opportunity needs to be actively pursued by the local
jurisdiction. Many times the local jurisdiction does not take advantage of that
opportunity. If a jurisdiction says it wants to notify the federal government of its
desire to be informed and involved, then the jurisdiction can do a resolution. They
must ask what the federal government is doing in relation to what the County can
control and is likely to change. Eastern Washington, where large parcels of land
under control of the Bureau of Land Management (BLM), is different than here,
where federal property is the forested areas that are more remote.
Nelson read from a statement on page 65 regarding not allowing the state's
decisions on local water rights. Whatcom County can't do that. It doesn't work
that way. People fought the Civil War because states don't have the right to
separate from the federal government. They don't have the right to decide what
constitutional laws they wish to obey or not obey. They have federal legislators to
handle those laws. This is a dangerous route to go. Many elements of this are
constitutional violations. The state and federal government should coordinate with
local government.
Dawson stated one section is about existing water rights. They are talking
about the federal and state changing the existing water rights. That is a property
right.
McShane stated a lot of this is due to Walla Walla County's endangered
species listing. This ordinance would create redundancy. The information from the
farm bureau meeting about federal statutes requiring the federal government to
have a public process is adequate. That is happening. There is a process before
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the federal government makes changes. Some changes are not necessarily what
local citizens and governments like. It is a dangerous route to go to drag cases into
court.
Dawson stated she was impressed that the 4(d) rules left it to the
jurisdictions to develop the rules. One group of people said counties shouldn't
develop the rules. They need to let people know that the counties have that right.
She suggested a resolution to let people know that the counties have this right.
McShane stated it would be more effective when councilmembers put effort
into that activity.
Nelson stated that there was public comment during the shoreline
management issue. The County put its comments in. The state did go back and
make changes in response to the County's comments. That is the process that they
go through.
Dawson questioned what they do about the state agencies that get too over-
handed.
Nelson stated the County could sue them.
Gibson stated a lot of that is controlled through the ballot box.
Dawson stated agency employees are being heavy- handed.
Nelson stated that the County challenged the state when it thought the
Hearings Board was being too heavy- handed. The founding fathers developed the
Constitution based upon the three - legged stool, made up of the judicial, legislative,
and executive branches.
Dawson asked what they do when state agencies make demands when there
is no statutes for them to follow and they are making up their own rules. Middleton
stated it depends on whom the demands are given to. If they are given to him, he
ignores it. If it continues, then he talks to the agency representative's boss. He
may ask County Executive Pete Kremen to talk to the Governor. He comes from an
experience where a citizen pointed out issues within Whatcom County's government
where County staff was acting out of line. None of those people work for the
County anymore. Now, the Planning Department has the reputation of being one
of the most friendly and helpful departments in the region. It wasn't that way five
or six years ago. He did understood Councilmember Dawson's concerns, but also
understood the legal constraints that the County has. He didn't think this ordinance
would get the County where it wants to go. They need stronger lobbying.
OTHER BUSINESS
Roland Middleton, Land Use Manager, spoke regarding the surface mining
regulations. They were looking to amend the surface mining regulations for non-
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conforming and conditional uses. The issue stalled at the Planning Commission.
The Planning Commission is going another direction from the Council's direction.
McShane asked the direction the Planning Commission was going. Middleton
stated the Planning Commission said the changes are strong enough. They will see
very little changes. The Planning Commission has continued the discussion many
times. It won't come back to the Council until approximately September. Staff
members are very frustrated. They are continuing to assist the Planning
Commission and educate them on the concerns.
Nelson asked that the Planning Commission notes be included in the
information submitted to the Council.
ADJOURN
The meeting adjourned at 11:30 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, 6/27/2000, Page 18