HomeMy WebLinkAboutWater Resources February 15 20001
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Whatcom County Council
Special Water Resources Work Session
February 15, 2000
The meeting was called to order at 10:15 a.m. by Council Chair Marlene
Dawson in the Whatcom County Northwest Annex Hearing Room, 1000 N. Forest
Street, Bellingham, Washington.
Also Present: Absent:
Barbara Brenner (arrived at 11:10 a.m.) Sam Crawford
Connie Hoag Bob Imhof
Dan McShane L. Ward Nelson
(Clerk's Note: Audiotapes of meeting are inaudible. Minutes are taken from
the clerk's notes.)
WATER RESOURCES WORK SESSION (A62000 -070)
Jeff Monsen, Public Works Director, stated the state received the County's
salmon project applications and ranking, but they want to hear a summary of the
projects from the lead entity. That is happening today.
Whatcom County Land and Easement Acquisition
Paula Cooper, Special Projects Manager, stated the program is still a draft.
The Flood Control Zone District Advisory Committee (FCZDAC) has reviewed this
and will review it further. The program purpose is to establish a land and easement
acquisition and flood mitigation assistance program. Comments have been
received from advisory committee members and landowners. The intent is not for
the County to become a primary landowner. Easements are better than owning the
land outright.
Hoag stated this was an issue with the lot consolidation. They didn't want to
build in the flood plain.
Dawson asked what an easement would be. Cooper stated that with a flood
easement, the land has to remain open for flooding. There is also an open space
easement. They can buy the development rights so structures are not constructed
in harm's way. A property owner can still farm the property in the easement. The
County can lease the property it buys to farmers.
Hoag stated it has to be a voluntary program. Cooper stated that it is,
except as outlined in the third bullet on the first page of the draft program, which
says that a property owner condemnation could be considered if a property owner
Special Council Work Session - Water Resources, 2/15/2000, Page 1
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refuses to sell an area needed to complete a capital improvement project that will
be of a greater public benefit.
Hoag stated that made her uncomfortable. It can be stretched many ways.
Dawson asked what a capital improvement project would be. Cooper stated
a capital improvement could be a designed overflow or a levee setback.
Hoag stated she wasn't comfortable condemning peoples' property. Cooper
stated it is an extreme or last resort.
Hoag asked that Cooper add language to make it clear it is not a policy they
want to pursue. Cooper agreed.
Monsen stated that procedurally, condemnation is not administrative.
Condemnation has only been done when all other means have been unsuccessful,
and there must be just compensation.
Hoag stated people could bring this forward as a policy and force the County
to do this. Cooper stated the County would come up with an overall project plan,
not third parties.
Hoag asked if the rest of the Council agreed.
McShane stated he was comfortable with the language as it was.
Dawson stated the property has to be appraised and the government has to
meet the appraisal. In her experience with the Whatcom Transportation Authority
(WTA), people are usually willing sellers.
Hoag stated a person's home is sacred. Some people would not be so
willing. Cooper stated she didn't foresee the County getting into the situation.
Most farmers are pretty smart about whether or not to sell.
Cooper continued to state that, in addition to easement and acquisition, they
also have a pass- through role for flood - proofing assistance. They would identify a
project area. They would apply to the Federal Emergency Management
Administration (FEMA) for pass- through grant money that would be used to move a
home. Other aspects of the policies came from hazard mitigation grant program
policies. They have to consider alternatives, and it has to be a recommended
alternative. Benefits have to outweigh costs in the long term. They also have to
look at other benefits for areas such as habitat. It is a voluntary program. Any
land that is created or purchased has to be put into an easement that goes into a
dedicated account for perpetuity. FEMA allows any use that does not have
structure.
The funding mechanism will be from hazard mitigation funding and the
community block grant program. If money is needed for a local match, they could
Special Council Work Session - Water Resources, 2/15/2000, Page 2
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use flood funds. The eligibility criterion used to evaluate a program is whether
there is a potential for flood hazard reduction. If so, it is an eligible property.
Hoag asked if flood money would be used. Cooper stated it would be for
local matches. Regarding reprioritization of projects, there is a generic
prioritization scheme that would be customized for each project. It is generic
because it is based on not knowing which parcels may come in. It is a sample that
may change, depending on the area. The Flood Control Zone District Advisory
Committee made a recommendation for a moratorium in the Glacier Springs area
until the buy -out program is completed.
Hoag asked if factors one, two, and three are in order of importance. Cooper
stated they are not.
Hoag agreed with most, but public safety should be ranked higher than the
others. Cooper agreed. She would change it.
Cooper continued to state that an application form could activate the
program. They could advertise the program and homeowners could apply. They
could target certain areas and send out a letter to homeowners in those areas. The
County would pay for an appraisal based on fair market value. Skagit County
included an option where the homeowner can buy back their house for one dollar,
then the homeowner would pay to relocate it. That is still being worked out on the
community level.
Hoag stated that overall it is a great program.
McShane stated he appreciated the program.
Monsen stated they would bring the matter formally to the County as an
appendix to the Flood Hazard Plan.
Dawson asked if this would go through committee. Monsen stated it would.
In this work session, they are asking for specific direction that would be related to
the watershed. Everything else discussed is preparatory to formal Council action.
Comprehensive Water Resources Plan Update
Monsen distributed an updated plan (on file) and stated the intention was to
go quickly through each chapter to hit key points. This is not the last opportunity
for comments. The intent was to provide a status report and description of where
they are in prioritizing times. They will address this to the community on how the
matters interrelate over time so they will move toward true priorities.
A year ago, the Comprehensive Water Resources Plan was completed and
distributed. Focus was on new significant issues. They didn't attempt to
incorporate things that were already ongoing. The update is to bring in new
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factors. The focus of first plan dealt with issues regarding water supply and the
watershed planning process, fish and shellfish, the Endangered Species Act (ESA),
and surface and groundwater.
Sue Blake, Water Resources Planner, stated Water Resources Manager Bruce
Roll is the lead and she is the alternate on the Planning Unit. The objective of the
plan is to create a watershed plan and begin implementation by June 2002. They
are looking for solutions and implementation strategies for water quality, water
quantity, fish habitat, and instream flows. Work is divided into three phases that
include organization, assessment, and management. The three phases are
designated by the legislature. The organizational phase involves things to be
accomplished to get the project off the ground and underway. Page five of the plan
lists the organizational phases. Phase two is the assessment phase and involves
better characterizing the nature of the issues. Accomplishments so far include an
instream flow conference and the results of a report written on instream flows. The
United States Geological Service (USGS) will also be there. The Public Utility
District (PUD) is still working on water rights evaluation related to state water
rights. It doesn't address federal water rights issues. The Lake Whatcom study is
the bathymetric work that began last year. They will end up with a better
characterization of the lake's topography.
Hoag asked the difference between state and federal water rights. Blake
stated the state has control over its own water rights, but doesn't have jurisdiction
of tribal rights. They need to know about the tribal rights process, but the strategy
has not been defined. There are other federal rights with the forest service.
Blake continued to say that they still need to do more in the year 2000 for
the assessment. They need to continue water rights evaluation and look at the
USGS phase one scope of work. They also need to complete the bathymetric map,
water analysis, and finalize the report and begin work on instream flows.
Monsen stated the next item is salmon recovery. They need to implement
programs. The issue they are struggling with is focused on salmonid as a whole, as
opposed to only listed species, and with priority given to listed species. His
emphasis is local coordination. They must make sure pieces that can be
implemented are implemented broadly in the community. They will put their
energy into coordination and foundation work. The goal of the state is to have an
adequate regulatory scheme to deal with formal County activities. They need to
improve how they enforce and monitor results. They don't need a change in
regulatory structure.
1999 highlights include fish enforcement and hiring a new ESA coordinator.
The state has noticed those two activities. They have noticed the County's
emphasis on cooperation with the state and tribes. There is a foundation for
working on restoring and protecting habitat. They will try to find ways to leverage
one program with another. The formation of a habitat committee and project
selection will help in the long -term.
Special Council Work Session - Water Resources, 2/15/2000, Page 4
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McShane stated they are breaking down walls between stand -alone groups.
He wanted to know how they will ensure that will continue to happen. Monsen
stated the administrative focus a few years ago was to ensure that activities that
are ready to move forward would move forward. They recognize that efforts would
have to be a coordinated effort, but they wouldn't stop an action because it wasn't
coordinated. Now, they are ready to bring things forward. They will marry
information so how the pieces fit together is more understandable. The
administrative process of information gathering and sharing between the advisory
committees is encouraged and coordinated. That is not a small effort. The Council
and administration need to discuss how to evolve the process to achieve true
mutual decision - making. That is the next step in the puzzle. The statutes are
written to create a stand -alone activity. The county needs to comply with the
statute and also be coordinated. That is difficult. He was looking for suggestions
on marrying the decision - making to make sure it was coordinated and to make sure
all stakeholders have a roll in decision - making.
Blake stated that as part of the 2514 scope of work, task 3.4 deals with the
linkage of coordination between existing and potential programs. The committee is
working on this to determine how to share data and make decisions. Programs can
effect each other in a lot of ways.
Hoag stated they took a tour in Canada that looked at freshwater channels
and other methods. She questioned whether they are pursuing things like that in
the policies. Cooper stated that would fit into the meander program, but it is all
integrated. As they do the modeling for the river, it will tell where to set back
levees and establish overflows. If they don't want to set back levees far enough to
allow the off - channel habitat that the National Marine Fisheries Service (NMFS)
thinks they should, the acquisition behind levees would be created for overflow
channels.
Hoag stated they decided they were not interested in that in the lower river
areas. When they create an off - channel habitat, they would need to purchase the
property instead of having an easement. Cooper agreed.
Monsen stated they are driving to taking hold of opportunities, but are not
sure of what opportunities exist.
(Clerk's Note: End of tape one, side A.)
Regina Delahunt, Environmental Health Services Manager, discussed
shellfish. There are two harvesting areas that are closed. In the plan, they have
an aggressive objective to reopen all areas by 2003. It is going to be difficult to do
that. In 1999, the State Department of Health (DOH) further downgraded a portion
of Portage Bay and permanently closed Drayton Harbor. There were many activities
that were accomplished in 1999. A lot of the onsite sewage issues have been
addressed. They have done surveys and repaired all failing septic systems in
Drayton Harbor. They also surveyed the Marietta area and found failing systems,
which have all been repaired. Operations and maintenance for onsite septics
Special Council Work Session - Water Resources, 2/15/2000, Page 5
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started in 1999 and should help with public education. Other 1999 activities include
dairy management and manure management. Many management plans are in
place or have been updated. Data collection is now in place.
Delahunt continued to state that activities for the year 2000 include
continuing efforts to ensure compliance with seafood processors, sewage treatment
plants (STPs), and dairies. The State Department of Ecology (DOE) is willing to be
more aggressive. The Drayton Harbor Shellfish Protection District is working with
the City of Blaine.
Hoag asked if DOE is considering a moratorium. Delahunt stated she has not
heard that.
Hoag stated that unless DOE prohibits any more hookups, the City of Blaine
has no incentive to work on the problems. There is no support for finding the
problems and fixing them. Whenever they have heavy rains, they have an
overflow. They have the capacity to deal with sewage without overflowing, but
haven't found a way to keep the stormwater out. In addition, it appears there are
some broken pipes somewhere because there is a constant high fecal count in
unusual areas.
2000.
Delahunt stated hopefully those concerns will be raised and addressed in
Hoag asked if the Council should press DOE for a moratorium.
Delahunt stated a major activity in the year 2000 is the total maximum daily
load (TMDL) study. The Nooksack TMDL evaluation is done. Many
recommendations will need to be worked on in 2000. They need a continued data
collection effort on the Nooksack to track the success of improvement activities.
Also, the Drayton Harbor group wants a TMDL study for Drayton Harbor. They
believe it may pinpoint different sources. The TMDL study sets maximum limits on
how much coliform can come down the river and still meet standards. If the river
can meet the standards, it is likely the shellfish beds will improve.
(Clerk's Note: Clerk out of the room.)
Delahunt stated that the Nooksack TMDL study recommended that, when a
new permit is issued for the City of Lynden, the allowable fecal coliform discharge
limits are reduced. In looking at all of the input, they feel that the Lynden input is
too high and having too much of an impact on the river.
McShane stated if they are not meeting the permit, there will be
consequences to the National Pollution Discharge Elimination System (NPDES)
permit. Delahunt stated there could be.
Special Council Work Session - Water Resources, 2/15/2000, Page 6
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McShane stated that would happen in Blaine as well. Through a TMDL
process in Blaine, their sewage outfall could be targeted if they are not meeting the
discharge criteria. There could be consequences.
Brenner questioned whether the consequences could include a moratorium.
Delahunt stated that generally they have been doing fines.
Hoag stated that is already in place. They are already violating their current
permit. The problem is they weren't fining the city, and when they began fining the
city, they were fined $3,000. Either the Natural Resources Committee or the full
Council sent a letter requesting that the timeline for the TMDL study in Drayton
Harbor be moved up. They have Drayton Harbor scheduled for a TMDL study in the
year 2005 or 2007. Delahunt stated that the last she heard, they didn't receive a
response.
Hoag stated there should be Council support for moving the date forward.
Brenner questioned what the Council could do to make sure that happens.
McShane stated DOE has staff and funding issues. They could raise those
issues to the Environmental Protection Agency, if they feel they are not
implementing the Clean Water Act.
Dawson stated she believed that if the cities of Blaine and Lynden don't get
their sewage treatment level raised, then people would just install septic systems.
Hoag stated Lynden and Blaine are two totally different issues. In Lynden,
they were not treating their sewage properly. Now they have an ultraviolet
treatment system. They were also killing the batches they were testing instead of
incubating the material. They thought they were putting out perfectly clean stuff
and it was not. DOE responded to that and told them to fix it or they would end up
with daily fines. Lynden cleaned up its act. They would look at the amount of
fecals they can legally eliminate.
Dawson asked what a moratorium would solve. People would just install
septic tanks.
Hoag stated septic tanks aren't a problem, but they would not be allowed to
be installed. Politically, there is no incentive to solve the problem. The overflows
are occurring in the lines that existed before the new treatment system was
installed. The point is that if there is the political will to solve the problem, only
then will it be solved.
Dan Gibson, Senior Civil Deputy Prosecutor, stated typical restrictions are lot
size and the ability to pass a perk test. In Lynden, they have to hook up to the
sewer system or they don't build.
Special Council Work Session - Water Resources, 2/15/2000, Page 7
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Delahunt stated if sewer is not available, it is possible to put in a septic
system.
Gibson stated that typically the lots are not big enough to put in a septic
system.
Hoag stated they would have to request that DOE establish a moratorium.
Blake discussed an update on Lake Whatcom. On February 2, the councils
and Water District #10 adopted the plan for the watershed.
Brenner stated Bellingham did an emergency ordinance. She was interested
in that, and asked if the County would do that. Blake stated the County would
monitor what the City is doing and see if it is applicable at the county level. It can
be looked at.
Brenner stated she didn't want to do it as an emergency, but it could be
applied. Blake stated they are taking the approach of getting enough enforcement
to prohibit that stuff from going into the lake.
Goodwin stated they looked at that and adopted more stringent rules for the
rainy season. They have tighter regulations in the winter.
Brenner stated she wanted to look at those proposals.
Dawson stated they have to evaluate the impact on staff.
Blake stated they would monitor what they are doing and see if the changes
the County makes will help the situation. The County is taking a different
approach. The Council can give direction to prohibit building during the rainy
season, but they don't want to prohibit people who know how to do it right in the
rainy season, because there isn't a dry season in this area.
Brenner questioned whether they can legally enact an emergency
moratorium to stop people form putting in more applications. Gibson stated it has
been done.
Hoag stated they did that with the cellular towers. Gibson stated there are
constitutional limits on the use of moratoria.
Brenner stated that when she brought up the issue of a moratorium on Lake
Whatcom, their legal advice was that they couldn't legally justify a moratorium.
She asked if avoiding a run of permit applications is an emergency. Gibson stated
that if they are going to legally establish a moratorium, criteria must be met. One's
opinion doesn't meet the criteria; there must be a good basis for the moratorium. A
run of permit applications is not a legal reason by itself. There has to be a greater
public good.
Special Council Work Session - Water Resources, 2/15/2000, Page 8
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Brenner stated she was not opposed to a moratorium, but wanted to figure
out how to do that without getting in trouble while they figure out the regulations.
Blake stated that if the Council is rethinking this, they need to give staff that
direction.
Dawson stated there wasn't support for that.
Hoag stated the issue of how to solve the problems in Lake Whatcom was
sent to the Planing Commission, whose recommendations came forward, and which
the Council adopted. Now, they are in a different position.
Brenner stated she was interested in exploring the idea.
Hoag stated she needed more justification.
Brenner stated that if there is a legal and health justification, she would
support it.
Dawson stated they need to see if there is support from other
councilmembers before they direct staff to look into it.
Brenner stated she first wanted to know if they have the legal ability to
declare an emergency.
Hoag stated there are two different approaches. The city's approach is to not
allow building. The County approach is to allow building, but with extra regulations.
She asked how they could monitor the two approaches and see which is more
effective. Blake stated there is monitoring data. There is someone who is now
working with the property owners to monitor what is happening. They will have a
tracking system for the sediment produced by a site.
Hoag asked if that would provide monitoring for whether sediment is being
reduced in Lake Whatcom. Blake stated she addressed only land clearing, not
forestry. They are looking at sediment loading as part of the Comprehensive
Stormwater Plan.
Brenner stated they are pretty sure that the sediment loading will be reduced
if there is a moratorium. She questioned why they wouldn't want to do that.
Dawson stated they need to talk to other councilmembers to see if there is
support.
McShane stated results are documented. He questioned how the
enforcement was going as far as staffing and dealing with the issues out there.
There is a poster child bad land clearing along Lake Whatcom Boulevard. It is bad
press for the County because people see it every day. Blake stated it is one
problem the County has been working on. There are other issues there.
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Hoag stated when the County issues a conditional use permit, there needs to
be follow up so the County knows the permit - holder is complying.
McShane stated they need to deal with the blatant violators. Council needs
to give staff direction. Blake stated she would look into it.
Brenner asked Blake to look into that issue.
Blake continued her presentation. The highlights of the 1999
accomplishments include the Lake Whatcom overlay zone. There is an extensive
list of stuff to do during the year 2000 and beyond.
Brenner asked if "public ownership" is of property or the stormwater control
measures. Blake stated it refers to control measures. They are looking at public
ownership from a variety of perspectives. There are a variety of ways to prevent
undeveloped property from being developed. They will look at all options.
Brenner stated there has been talk about offsite stormwater control
measures, such as detention ponds. Blake stated they would look at regional
facilities as part of the program.
(Clerk's Note: A five - minute break was taken at 11 :45 a.m.)
Sylvia Goodwin, Planning Division Manager, stated Weinberg no longer owns
the property. There are problems that are being engineered for correction. There
were improvements to a road that goes uphill. There is a wetland fill issue on the
top lot. There are several stop work orders. Biologists have been hired to do
wetland mitigation. The County has been involved, and there are stop work orders
in place. Weinberg has not won anything in court on this issue, but there are other
properties with compliance issues.
Hoag stated the Council needs to look at the fine structure. Blake stated it is
in the program plan.
Delahunt spoke on groundwater. In 1998 and 1999, time and effort was
spent in the north county delineating the groundwater issues. A major concern is
nitrate and pesticide contamination. The water plan objective is to develop a
comprehensive groundwater plan and implementation strategy by 2001. They now
need to put a plan in place to protect and implement the groundwater plan. During
1999, there was a health assessment done by the Agency for Toxic Substances and
Disease Registry (ATSDR). The leukemia study was completed. Also, DOE
completed assessment of alternative water supplies for the north county area.
They came up with two options: hook up to the City of Lynden or point of entry
treatment for residences. She distributed information regarding health risks. For
the year 2000, they need to complete the appropriate supply option for the north
county needs implementation. DOE is going to finish additional sampling in the next
few weeks. They will delineate an alternative supply. Then they should choose the
option. They are optimistic that will happen in 2000.
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(Clerk's Note: End of tape one, side 8.)
Delahunt stated they will look at a drinking water ordinance. They will use a
state drinking water ordinance for enforcement. There has been an interim policy
in place since 1991. That will come forward to the BOH mid -year. In addition, they
need to implement the integrated pest management (IPM) programs that were a
part of the Abbottsford /Sumas recommendations.
Hoag asked how they would accomplish testing. Delahunt stated how they
would do that will be part of the ordinance they bring forward. The subcommittee
is wrestling with how to implement this overall.
McShane stated he was concerned with Chlordane. It doesn't clean up well.
There are areas of the county where the presence of Chlordane is significant.
Delahunt stated it hasn't been discussed. They could expand on that.
Blake stated the health officer has latitude to require testing for items such
as that.
Delahunt stated it could be required during the building permit process.
Brenner questioned whether people could build in flood areas or alluvial fans.
Goodwin stated they could if it is engineered for properly and as long as they are
not in the floodway, which would back up water. Even then, one can build if he or
she can prove they won't back up the water. There are strict FEMA regulations that
say they cannot back up water in a stream without mitigation.
Brenner stated the code does not do what they want it to do. She was not
comfortable allowing people to build because an engineer stays its okay.
Cooper stated they requested FEMA include alluvial fans on their flood maps.
Hoag asked about the Everson overflow. Cooper stated the question was
whether the overflow happened due to bridge reconstruction and a new dike.
Dawson stated they've already adopted the Coordinated Water System Plan.
Blake stated the state never adopted the one passed years ago. By the time it was
available for them to adopt, it needed updating.
Delahunt stated the state provided funding to update the plan, which they
just completed. The Water Utility Coordinating Committee adopted the update of
the plan. It will soon come before the Council. Then it will go to DOH for formal
adoption.
Blake stated the Council role is to review it for consistency with existing land
uses. The main reason for DOH not approving the old plan was because of growth
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management and the tribal issues. There is new language to address the tribal
issue.
Delahunt stated they want to see the plan fully implemented, which will
require a commitment from the County. They will have to look at additional
resources that are needed.
Hoag stated the Marine Resources Committee is doing a shoreline inventory.
There was a presentation from a fish farmer and a fisherman opposed to fish farms.
Goodwin stated that if they are spending money on shoreline inventory, they
need to know the DOE requirements.
Hoag stated they are soliciting requests for proposals (RFP), so it needs to be
added right away.
Monsen stated the links between a coordinated financing plan and data
management need to be put in place.
Goodwin spoke on the Comprehensive Plan. They will work on the Lake
Samish overlay zone in the year 2000. They have done work on subdivision
regulations that the Planning Commission is now working on. There are a lot of
changes regarding water issues and a lot of broad goals and policies that talk about
shoreline management and other issues, but is nothing specific.
Hoag asked if people are required to hook up to and whether everyone will
be required to hook up to public water in known contamination areas. Goodwin
stated it has to be a formally recognized County contamination area, and smaller
than five acres.
Blake stated the idea is that the Health Department would propose areas to
the Council for designation.
Hoag stated some contamination is longstanding and not likely to clear up.
Nitrates can be more easily influenced by land practices. She asked if a person
would be required to hook up to water rather than do personal treatment. Goodwin
stated they would have to look at that as they set up areas of designation.
Hoag stated they should look at it as they set up the ordinance.
Brenner suggested they make the ordinance flexible.
Salmon and the Endangered Species Act (ESA)
1. Update on 4(d) Rule
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Monsen stated they have to state what they are going to do, do what they
say, and then see if it worked. The vision in the state regarding a recovery plan is
to produce a document that deals with issues and describes how they intend to deal
with the species recovery. Over time, the plan changes depending on what they
learn and how recovery actually occurs. Regarding the 4(d) rule, he has asked
about the relationship of the rule and the recovery plan. They have to adequately
describe the intention, the certainty that the plan will be done, and that it will
evolve. If the County sets standards high enough to make a resource agency
comfortable, then the agency would sign on and the County will achieve some legal
protection.
Brenner questioned who makes the determination. Monsen stated NMFS
would sign if the County sets the standard very high.
Brenner asked if it was realistic for the County to set the standard that high.
Monsen stated it was not. He questioned how to get their concurrence with the
standard set at a reasonable level. The basis of the plan they are looking for is in
biological science. Therefore, he has to explain how the plan fits into the biological
science. The approach most entities are following is to say what they are going to
do, mean what they say, and make sure they improve with time. Over time, if they
demonstrate the follow- through, sooner or later NMFS will sign off on the program.
He asked what 4(d) protection means in the legal sense. He has discussed risk
management with County legal staff. Having NMFS protection doesn't mean the
County won't be sued or have NMFS protection throughout the case.
Gibson stated there is a difference of opinion on what best available science
is. Consistent self - discipline is how they should approach land use issues,
regulations, and stormwater regulations. If their actions are in the right place, a
steady incremental approach applied consistently will get them where they should
be.
Brenner stated councilmembers have a different perspective of what the right
thing is. She questioned how to reconcile that. Monsen stated if they say they are
going to do something, they need to do it. The greatest risk to exposure is saying
they are going to do something and then not do it. A second part is regarding data
management. They are in the early infancy of gathering information to show how
things are changing. They still have to get to the point of determining what
information should be gathered to show how things are changing. Once they
determine things are changing, they need to demonstrate how the plan will change.
Hoag asked how to proceed without NMFS coverage. Gibson stated they
would eliminate the vulnerable hot spots through enforcement to ensure that the
ugly things are addressed. They are buying time as they go along. They could be
looking at four or five years of that, before obtaining approval or gaining a comfort
level to live with in the long run. Over time, they may find that they get
comfortable with the notion of not seeking approval. On the other hand NMFS will
settle down. It may take four to five years for that to happen. In the meantime,
there will be discreet sectors that will find their way toward a program. There are
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certain sectors that will have sufficient commonality in terms of what needs to be
done and a willingness to do it, so they can engage NMFS. Agriculture is a good
example. The Ag /Fish Forum is not destined for success.
Monsen stated the distinction is that the negotiated processes were intended
to result in a signature that amounts to a federal agreement. It is a matter of
whether they want their insurance policy at any cost.
Brenner questioned whether not meeting the level of NMFS could be used
against the County. Gibson stated at this stage probably not. They have to keep
their eye on NMFS, but they are heavy on process. They have the jurisdictions
jumping through hoops that result in the process of spinning wheels. For their own
reasons, they've latched onto a particular standard that people are not convinced is
the best.
Monsen stated a consultant will help the County do regulatory review and
looking for key gaps that may encourage lawsuits. The consultant did a cursory
review of current regulations and has found that Whatcom County is far ahead of
most other counties.
McShane stated the Whatcom County shoreline program is better than most
others.
(Clerk's Note: End of tape two, side A.)
Hoag asked if they have to keep checking with NMFS once they've gotten the
signature. Gibson stated that is in section 10. They can tighten up the 4(d) rule.
Consequently, their expectation for compliance is lower. The bar is set higher for a
habitat conservation plan (HCP). The HCP offers, in the long -term, a device for
getting credit for the good things they do as well as the bad things they stop.
Down the road, they need to keep that in mind. They are trying to achieve it
through 4(d). There is a price attached for the certainty.
2. Update on Chinook Recovery Plan
Monsen asked the Council to provide questions and concerns in writing.
McShane stated they need to keep in mind that NMFS had to get sued to
establish the listing. He was not comfortable with the NMFS relationship regarding
hatcheries.
Monsen stated the inclusion of harvest to hatchery in the County plan is
there because of the relationship with the tribes and their willingness to engage in a
broader view of salmon and salmon recovery status.
Gibson stated the due date for 4(d) comments is March 6. It would be
helpful if the Council had a sense of what they would like to say. There is nothing
there that surprised him.
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Monsen stated commenting on the draft 4(d) rules suggested they are
requesting clarification or amendments. There is indication NMFS is not interested
in amendments. Most entities are formatting their comments to convey their
intentions with a request for confirmation that they are in compliance.
Hoag stated some of the items in the plan are blank, such as on page 23 of
the draft recovery plan for Chinook. Monsen stated that is an example of a key
issue that needs to be included in the statement, but the data hasn't been
gathered.
Hoag stated the factors for delineated on page 26, are regarding
undemonstrated but potential predator prey. She asked if it is that the Coho they
are releasing are larger than the Chinook.
McShane stated they are releasing larger fish so their survival rate is higher.
That sort of activity has caused negative impacts elsewhere.
Hoag referred to page 27 and asked what "terminal catch" means.
McShane stated it refers to the catch as they enter into the river. It means a
specific catch, as opposed to fish caught in the sound where there is a lot of by-
catch.
Monsen stated terminal catch refers to the ability to have a specific species
catch.
Hoag referred to page 28 regarding habitat features. She asked about the
problem they feel the County has that has a high impact on everything. She asked
if they have to agree with this document. Monsen stated they don't today. This
document is a reasonable guide for what they do next.
Hoag stated the terms on spawning areas are generally in the higher
reaches. Cooper stated the levees enable higher depths and quantities.
Hoag stated only in the lower reaches. Monsen stated stormwater issues
have similar impacts as a paved road in the City of Bellingham.
Hoag stated she was concerned. If they say that this is a high impact all the
way across, it is saying they don't have enough water in the river, which leads to
water rights and instream flow issues they haven't arrived at yet. She
acknowledged the concerns, but they have not established a water quantity
problem. On page 30 under Chinook management units, she asked what "MSY"
means. Monsen stated it might be minimum sustainable yield or maximum
sustainable yield.
Hoag referred to page 37 regarding changes in hatchery production. The
plan mandates adoption in a modified equilibrium brood document. She questioned
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what an equilibrium brood is. Gibson stated it refers to a sufficient population to
sustain the current population.
Hoag stated she needed to understand the document before she approved it.
McShane stated there was no discussion historically on the hatcheries and
why they are a good idea or a bad idea. He questioned whether the tribes have
written some of the habitat sections. Monsen stated they have.
McShane asked if the County staff would beef up what they are going to be
doing. Monsen stated this is a preliminary draft from the tribes. The County will fill
in, and they will have a true draft.
Hoag asked for information on the technical terms.
Monsen stated they are shifting away from the Salmon Recovery Funding
(SRF) Board projects, which are done, and are now focusing on finishing a draft
plan.
2514 Update
Blake stated the Council received an outline of the revised 2514 scope of
work. They now have the full text. The scope of work includes organization pieces
that include assessment, problem identification, and other concepts. She wanted to
know if there are any major concerns with the plan. This plan can be signed off by
the Planning Unit this month and by the decision - makers in March. It follows what
is required in the Revised Code of Washington (RCW) and memorandums of
agreement (MOAs). They need to agree on the major pieces and the phases. The
idea is that if they can get conceptual approval, then they can get detailed
implementation strategies. They only have two and a half years to write a plan that
will be ready for Planning Unit adoption in 2002.
Monsen stated they are looking for guidance before they sit down at the
table.
Monsen stated they are asking for endorsement to amend the agreement
with the PUD to expand the balance of their work (On file). The agreement is for
$60,000. They are asking the Council if they should continue on with an additional
$190,000. He didn't know any other way to get this work done.
Hoag asked Monsen to clarify their responsibilities under Exhibit A. It could
be misinterpreted to mean that they would process permits and applications.
Monsen stated the first agreement was between the County and the PUD.
The next agreement will be between the Initiating Governments (IGs) and the PUD.
Once they go through a review process, it will come back for budgetary approval.
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He asked the Council for guidance on whether they need to take a different
position.
Hoag stated she wanted clarification on item 1A. In addition, the termination
language needs to reflect the transition. They need to be clear on what happens if
one IG does not agree on approval or termination. Monsen stated that if one IG
doesn't agree to approve the agreement, then it is not approved.
Brenner stated she wanted to see a breakdown in Exhibit A of what they are
paying for.
(Clerk's Note: End of tape two, side 8.)
McShane stated the individuals doing the work have to have GIS support.
Brenner stated this is like a contract. She asked if they are sure they don't
need to do an RFP.
Dawson stated she wanted this reviewed by the attorney. Monsen stated the
form of the agreement would change.
Brenner questioned why they are having the PUD do the work. The PUD is
an initiating government. Monsen stated the decision to move ahead with the PUD
was made because they already have the knowledge to supervise the activity.
They were willing to supervise at no cost.
Brenner stated they also have a vested interest.
Hoag stated that all the IGs would have to approve this, thus they all would
have a second bite at the apple.
(Clerk's Note: Hoag left the meeting at 1:45 p.m.)
McShane asked if the change of scope was brought before all the caucuses.
Blake stated it was brought before the Planning Unit. All the caucuses have already
seen this. They are trying to run everything through the Planning Unit.
Dawson asked where the equipment, such as the laptop computers, goes
when the job is ended. That needs to be specified. Monsen stated that in two
years the hardware would be obsolete. They would want to send it to auction.
Dawson questioned whether two of the people hired would only be for nine
months, as indicated in the memo. Blake stated they would look into that.
Brenner questioned why Dawson wasn't concerned about conflict of interest.
Dawson stated the water rights were very clear.
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McShane stated all the information would be public. Unless there is an up-
front concern by people who don't have a right and are using water, he wasn't
concerned.
Brenner stated the PUD is in direct competition with small water associations.
The PUD has an advantage because they have public monies. They are a
corporation.
Dawson wanted to know what the PUD supervision is about. The PUD has
their own salary. Monsen stated he would look into it. It is critical that they have
direction from the Council. It should be added to the Council agenda.
McShane questioned whether they need a Council vote on whether to support
the PUD contract. Monsen stated he would schedule it on the agenda.
Blake stated there may be a way to meet Brenner's concern by establishing a
procedure. The reason the PUD did it initially was because there was a time issue.
If they chose to not use the PUD, they will need to get buy -in from everyone else in
the process.
McShane stated water associations are on the Planning Unit. They have
raised issues, but are not opposed to the PUD doing the activity.
Brenner stated there was a lot of talk at a meeting she attended about the
PUD determining the water rights.
Lake Whatcom Enforcement Activity
This item was not discussed.
ADJOURN
The meeting adjourned at 2:10 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on April 4 , 2000.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Marlene Dawson, Council Chair
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