HomeMy WebLinkAboutWater Resources June 20 20001
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Whatcom County Council
Special Water Resources Work Session
June 20, 2000
The meeting was called to order at 10:00 a.m. by Council Chair Marlene
Dawson in the Whatcom County Northwest Annex Hearing Room, 1000 N. Forest
Street, Bellingham, Washington.
Also Present:
Barbara Brenner
L. Ward Nelson
Dan McShane
Bob Imhof
Sam Crawford
Absent:
Connie Hoag
WATER RESOURCES WORK SESSION (A62000 -070)
20 Monsen stated the agenda for the meeting has changed. They will discuss
21 the Washington Conservation Corps, the salmon update, and then the watershed
22 project if time allows.
23
24 1. LAKE WHATCOM
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26 Grant Update
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28 Monsen stated the County made application last summer or fall to the state
29 Department of Ecology (DOE) for a work crew. The County put in $50,000, which
30 paid for a crew. The value of that crew is approximately $200,000. It is not a
31 grant program, per se. The County helped finance a work crew. Their focus was
32 on stream restoration and maintenance. He proposed signing up for that program
33 again this fall. He wants to ask that two crews are assigned to this area, one of
34 which will be paid for by the flood district, with a focus on restoration maintenance
35 of special district and flood project activities. The County, on the request of the
36 Nooksack Salmon Enhancement Association (NSEA), would finance the second
37 crew. That crew would deal with individual landowners.
38
39 Paula Cooper, Special Projects Engineer, discussed the flood crew. When
40 they do a flood project, they are supposed to restore the native vegetation from all
41 of the disturbed areas and maintain the vegetation so 80 percent survives.
42 Historically, they have been weak in that area. She's gotten criticism from
43 agencies, so the County has stepped up its efforts to do good planting after a
44 project by planting and maintaining native species. The County has tried to restore
45 sites where the State Department of Fisheries determined that the County has not
46 met its permit requirements. The County has done nine sites so far. The County
47 has done all of this with jail crews, Maintenance and Operations Division crews, and
48 Parks Department crews. They have worked in the centennial grant also. It has
49 been difficult to get commitments and assurance, because this work is weather
Water Resources Work Session, 6/20/2000, Page 1
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dependent. This summer, the County is going to sweep through all the areas with
three crews. One dedicated crew would take less time from the County. It would
be a more comprehensive way to make sure everything is getting the attention it
needs.
In addition to the flood projects, the County is also working with the drainage
districts. The County can offer re- vegetation in exchange for permits for drainage
districts. Much work has been done to plant shade vegetation. It has been difficult
for landowners to maintain the plantings. A dedicated work crew can do a better
job. Landowners are more willing to go along if the County work crews maintain
the ditches. The proposal is to fund one crew out of the flood fund.
Imhof asked how much it would cost. Cooper stated the amount is $50,000
for one six - person crew.
Imhof stated the proposal is for $50,000 for each crew. Cooper stated that is
correct.
Brenner asked the total amount requested. Cooper stated the total is
$50,000 from the flood fund and $50,000 from the Water Resources fund.
Brenner questioned the amount of employee positions that funding would
create. Cooper stated that amount would provide 12 bodies.
crew.
Imhof stated it is the County's portion, through DOE, to pay for an entire
Dawson questioned the percentage the County is paying and DOE is paying.
Monsen stated that in past the crew cost was $200,000 of value. To receive
the value, the County expends $50,000.
Wendy Shearer, Nooksack Salmon Enhancement Association, stated NSEA
put together a list of projects they will coordinate in the County. NSEA has about
$800,000 worth of grants and contracts and $200,000 worth of volunteer time.
They are working with four crews. They have support from the Whatcom County
Conservation Corps crew. They also have a dislocated timber and fisher crew of six
people. They are working with the jail crew on the drainage improvement districts.
NSEA is also working with the juvenile offender crew. They don't get any funding
for that, but they have work -study students from Whatcom Community College who
find projects everyday for the youth offender crew. These kids are also out doing
restoration projects. The Washington Conservation Crew is one of the best buys for
the County's dollars. For $50,000, they get an experienced supervisor who is hired
through a competitive process and has a lot of experience working with supervision
of construction and landscape projects. They also get five young people who work
for a year for minimum wage and a $4,750 stipend from the AmeriCorps program.
That stipend can be used to pay off student loans or go back to college. They get
training, good work experience, and can pay off or fund their education at the end
of the year.
Water Resources Work Session, 6/20/2000, Page 2
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Brenner asked how the students go to school if they are working a 40- hour
week. Shearer stated they don't go to school. The students work for a year and
then go back to school after that. The crew gets a lot of training in hazmat and
first aid. They have done work for the drainage districts. With their Jobs in the
Woods crew, they have to pick a few projects with landowner agreement for their
dislocated timber and fisher crew. That crew can't be on projects that are
maintenance of past projects. This crew has leveraged County funds and NSEA
resources. They are renting a farmhouse and using it to store their tools and to
park the trucks. The $50,000, which leverages $200,000, provides uniforms and a
crew cab truck. NSEA provides in -kind support for landowners, a place for crew
safety meetings, and an opportunity for other training with NSEA staff. The
crewmembers get a good training and educational experience. NSEA staff put
together a tentative list of projects for this coming year. She also included pictures
of this year's crew.
Brenner questioned whether the shade vegetation has to be indigenous.
Nelson stated the pine in the photograph is not native.
Frank Corey, Washington Conservation Corps, stated the ponderosa pine was
planted by Ten Mile Elementary School last year. The Conservation Corps uses
indigenous plants entirely. The pine was one planted by the school. This is a dry
area so the pines are doing well.
Nelson warned that plants that are not indigenous may take over the
indigenous plants.
Corey stated the crew works every day. It is partially funded by the County.
The crew is taking out blackberries today. They dig out the blackberries.
Brenner asked for advice to homeowners on controlling blackberries. Corey
stated a lot of their projects are maintaining private land.
(Clerk's Note: Crawford arrived at 10:15 a.m.)
Corey stated NSEA has largely done habitat restoration and removal of exotic
plants and trees. The crew has been working since October 1 and worked through
the winter.
Brenner asked if this crew worked on the pond on Northwest Road near
Slater Road. Corey stated they did. It was an instream project that NSEA did last
fall.
Dawson asked if they get federal funding. Corey stated that a lot of the
$150,000 comes from federal funding.
Nelson stated AmeriCorps is a federal program. He questioned whether
NSEA is contracting with AmeriCorps.
Water Resources Work Session, 6/20/2000, Page 3
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Shearer stated that last year, the County made the match and every month
the payment gets made to DOE, and the crew is assigned to NSEA.
Corey stated he works for DOE, who gets partial funding from the
AmeriCorps program.
Shearer stated DOE does the administrative work.
McShane stated it is a steady group of volunteers. Corey stated they are out
there every day.
Brenner asked if this is affiliated with the Youth Conservation Corps. Corey
stated it is an offshoot of the Youth Conservation Corps.
Shearer stated there are 25 crews in Washington State assigned to salmon
recovery. It is a competitive process to get the crews.
Corey stated there are many agencies that want the crews.
Dawson questioned the salaries that the workers get. Corey stated they get
minimum wage plus the $4,700 AmeriCorps bonus to pay for their schooling if they
stay on full -time. They are also provided with health insurance during the year.
Monsen stated the crews are staffed from October through September. He
will ask for formal approval from the County Council in August or September. He
needs to send a letter of interest to DOE by the end of this month.
Nelson moved approval to endorse the two crews.
Motion carried unanimously.
2. SALMON RECOVERY
Status of statewide salmon recovery efforts
Monsen stated he created a Water Resources timeline of issue that are the
key dates for the Endangered Species Act (ESA). The second page of the handout
taken from the Governor's Salmon Recovery Office home page (on file) outlines the
state programs to this point. The top circle in the schematic that says "recovery
strategy" refers to the Extinction Is Not An Option document. It is the state's
salmon recovery strategy. It is a draft that came out last fall. Because of other
work the state is doing, the draft will go through review and revision this fall.
The second circle in the schematic is the state agency action plan. He will
provide a copy of the summary document. The full document is 190 pages and is
available on the internet. The action plan is intended to describe what state
agencies are doing on salmon recovery, which influences the state's budget.
Water Resources Work Session, 6/20/2000, Page 4
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Everything from the state focuses on what the state is doing, not on what the
individual water resource inventory areas (WRIA's) are doing.
The third circle in the schematic is the salmon recovery score card. He
distributed a summarized version of the score card (on file). Only an outline exists
at this moment. The state is creating the template for salmon recovery, or any
topic resembling this. The template includes the general strategy, action, and then
ways to measure accomplishments. This intends to measure the state and other
recovery actions. A number of teams are working to flesh out how to accomplish
measuring everything. The state's goal is that everyone who engages in salmon
recovery begin to measure success in these key concepts. They are rolling up all
statewide data.
Imhof asked what measurement indicates success.
Nelson stated it is when one achieves the benchmark.
Dawson stated they are still working on how to do that.
Imhof stated there was an article from the state on salmon recovery. It
listed all salmon streams and their current and optimum returns. He questioned
whether that is what the state expects as the measure of success.
Monsen stated National Marine Fisheries Services (NMFS) has to set what
that goal is. NMFS is far away from issuing that. An area defined as an
evolutionary significant unit (ESU), which is Puget Sound in this case, defines a
species for recovery. He didn't know if there would be a goal for a smaller area,
such as the Nooksack, Skagit, or Snohomish, or if it will apply to the entire Puget
Sound. It will probably be somewhere in between.
Steve Seymour, Fish Biologist, stated the tribes, the department and NMFS
are not on the same page of what recovery means. NMFS's vision of recovery is
different than the co- manager's definition. The tribes think recovery is when there
is harvestable fish.
John Thompson, ESA Resources Planner, stated NMFS is on that same page
as stating that a recovery goal is a harvestable surplus. However, they don't know
what harvestable is. They don't know what to measure. NMFS looks for properly
functioning conditions for habitat as a measure of recovery. The tribes are saying
they also need to look at how many smolts are coming out. That is still being
discussed between the co- managers and federal agency.
Nelson questioned whether the County could access staff resources from
NMFS. Thompson stated it potentially could.
Nelson suggested bringing in NMFS staff once per year. Monsen stated
interaction will be more predictable a year from now. Right now, their focus is on
review and negotiation with those who are proposing something, specifically those
with project based issues. From staff standpoint, they appear to be quite
Water Resources Work Session, 6/20/2000, Page 5
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consumed in that regard. For example, the state Department of Transportation
(DOT) is financing a NMFS staff person so someone is available to review their
projects specifically.
Nelson questioned the amount a NMFS staff person would cost. Monsen
stated they would come back to that idea. The focus is the role and goals of the
State of Washington. When the state sets a goal, especially in program areas, it
has a direct impact on Whatcom County. For example, one strategy is an update to
the Shoreline Master Program, which has a direct impact on Whatcom County.
State agency goals also deal with funding issues of where the state put its money
into agencies and also how much resource is available to finance the programs
within those agencies. For the first time ever, he has been participating with the
Washington State Association of Counties (WSAC) and the Governor's Joint Natural
Resource Cabinet to determine the state financial priorities for the 2001 -2002
budget. The governor is asking for input on financial priorities for the salmon
recovery effort regarding agency action and programs. These discussions will
continue through the summer. The discussion is part of the strategy -to- action
plan -to -score card loop. All along the loop, the goal is to always have a tie to the
budget so it is actually supporting what they've said is a priority.
Nelson asked if there is enough data to assist Whatcom County in
determining category priorities at this time. Monsen stated yes. The County has
enough data to select project activities that are moving the County along.
Nelson asked where the emphasis would be placed in the budget. The
County doesn't want to waste money by skipping a step necessary to achieve
success. Monsen stated he would touch on that question during this meeting. The
July work session focus is financial priorities of how they address matters such as
salmon recovery, watershed planning, and the shellfish district. They will look at
ways to prioritize the dollars to get the biggest bang for the County's buck.
Nelson questioned whether the County has the necessary data to make those
decisions. Monsen stated they don't have the data to make an easy decision.
Brenner asked if that data exists. Monsen stated it doesn't. He believes in
the 80/20 rule of putting in 20 percent of their resources and getting an 80 percent
return, rather than the other way around.
Brenner asked when they will get there.
Crawford stated the point of the 80/20 rule is that, regardless of what they
do, 80 percent of their resources are only going to produce 20 percent of the
return. It is hard to avoid that. The Council would commend Mr. Monsen highly if
he is able to take 20 percent of the County's resources and create 80 percent of the
return without spending the other 80 percent of the resources. Monsen stated the
challenge is trying to control their destiny and trying to identify the 20 percent
resource to 80 percent return threshold. However, every time there is a program
on statewide matters, they are dragged into a different direction.
Water Resources Work Session, 6/20/2000, Page 6
1 Monsen spoke on the timeline. Between now and through next year, they
2 are involved in programmatic discussions relative to the shoreline program, which is
3 a big element of what happens to salmon recovery and other matters. They are a
4 number of years away from completing the WRIA #1 watershed plan. The Tri-
5 County goal is to put programs in place that people will implement in three to five
6 years. In stormwater management, they are leading to a new era of dealing with
7 water quality and water quantity, relative to urbanized areas. Those are program
8 matters they will develop in 2002. Whatcom County is at the starting point of a lot
9 of these matters. While the County goes through various planning and data
10 exercises, it is also looking for early action items at the same time to make some
11 headway. Hopefully when programs and funding are approved, the pieces will
12 come together. The pieces are not together anywhere in the state, as the state
13 itself has shown. One of the action items for the state is guidance to all the WRIA
14 watershed processes under Engrossed Substitute House Bill (ESHB) 2514 to ensure
15 that they are done to support salmon recovery. There is not an absolute
16 connection there. The state will prepare guidelines so that a jurisdiction will know
17 what to include in its watershed project if it wants assurance that local planning is
18 being tied together and its moving toward recovery. That is still in draft form at the
19 state level.
20
21 Crawford stated the 4(d) came out the other day. He asked if that had
22 anything revealing.
23
24 Monsen stated he hasn't seen it.
25
26 Lloyd Moody, Governor's Salmon Office, stated there will be a press
27 conference at 11:00 a.m. when NMFS will announce it has filed its 4(d) rule. At
28 that time, they will explain when it will be available on the federal register. He
29 hasn't found anyone who has had a look at the rule. It will determine the effective
30 date. The Chinook rule for Puget Sound will be effective 180 days from being
31 published in the federal register. The steelhead 4(d) rule is effective 60 days from
32 being published. The steelhead affects four ESU's in Washington, Oregon, Idaho,
33 and California. The Chinook affects seven or eight ESU's and includes chum and
34 sockeye.
35
36 Monsen stated he would address the question on what to do next.
37
38 McShane stated the County approved a study from a consultant called URS,
39 and questioned whether that should be on the timeline. Monsen stated URS is
40 going through a process to look at the County's regulatory programs and will offer
41 advice on what adjustments need to be considered to be in compliance with the
42 4(d) and other rules.
43
44 Brenner asked if the consultant is a local firm. Monsen stated they are
45 located in Seattle. They were put under contract in early March. The focus is to
46 look first at whether there need to be any changes. They didn't see anything that
47 needs huge changes. They are now looking at how to apply the regulations and
48 what they mean on the ground. The focus now is whether the County needs to
49 tweak how it applies the regulations to make sure that there is coverage. Each
Water Resources Work Session, 6/20/2000, Page 7
1 entity in the County has to decide how far they intend to go regarding salmon
2 recovery. A number of entities have only coverage in the 4(d) rule as their goal.
3 Other communities are saying they don't care about the 4(d) rule because they
4 can't be forced to do it. Most are in between those two positions.
5
6 Dawson asked if the bottom line is governing groups, not individuals.
7
8 Monsen stated there is a way that the County entity can deal with this, but
9 which may create exposure to individuals. There is a challenge in how far to go and
10 what they can do to provide legal coverage for constituents and legal protection for
11 the County as an entity. Those are not necessarily the same.
12
13 Imhof stated the County needs to make that judgement when it looks at the
14 4(d) rules. The County is doing what it can to gather the information and needs to
15 make sure it is covered. There might not be coverage for the citizens.
16
17 Brenner asked for an example of the constituency versus the County.
18
19 (Clerk's Note: End of tape one, side A.)
20
21 Monsen stated an example is that a development standard could be very
22 high. Because that is the policy, the entity is covered and is doing the right thing
23 by making the right policy statement. However, the standard may be so high, that
24 it would be very difficult for an individual to accomplish or maintain that standard.
25 Therefore, the entity always has to remind the individual that he or she is not good
26 enough. The entity could create a standard that is so difficult to meet that it puts
27 the individual at risk from being able to do anything.
28
29 Nelson stated it becomes a taking.
30
31 Imhof stated the County has to draw the line on the scale where the County
32 will put its mark.
33
34 Brenner questioned what happens if NMFS thinks that the only way the
35 County can accomplish the goal is to require no more development. She
36 questioned where the County draws the line.
37
38 Nelson stated the County does the same thing as it did with the Growth
39 Management Act (GMA). The County will draw the line, collect the information to
40 support its decision and reasoning, and then defend their decision in court.
41
42 Monsen stated Whatcom County needs to begin to mix and match the work
43 that has been done by other folks and that the County is comfortable with adopting
44 as its own and can put into Whatcom County's plan. For those areas that the
45 County is not comfortable with, the County will want to make sure it goes through a
46 level of detail that is very specific to this community. A number of entities have
47 done good work that has federal buy -in at the moment and that the County can use
48 with little adjustment. The areas Whatcom County will need to focus on are the
Water Resources Work Session, 6/20/2000, Page 8
1 shoreline program and agricultural practices. He will hit those topics more
2 aggressively than the others.
3
4 The Tri- County effort is a collective process with the intended outcome of
5 programs, policies, and action plans. Those outcomes will create enough comfort
6 amongst the entities that they will universally put them into place to have common
7 practices. The entities will negotiate with federal services so those same policies,
8 practices, and standards will lead to legal protection under the 4(d) rule. They
9 have elaborate procedures that they use to go through this exercise. Those
10 outcomes are broken down into topical issues. He provided a summary of their
11 proposal (on file).
12
13 Brenner asked if this is new or if they are already doing this. Monsen stated
14 that road best management practices (BMP), for example, are not much different
15 than what Whatcom County is already doing or intends to do. The County has to
16 make sure it is consistent in those practices and that it is mistake -free.
17
18 Imhof stated the County just let out a contract for someone to look at
19 Whatcom County's management practices on an ongoing basis. Monsen stated that
20 contract is primarily related to Lake Whatcom.
21
22 Monsen continued to state that Whatcom County is now finding ways to get
23 some level of detail for each of these types of elements and the various programs
24 that are out there. The County wants to feel comfortable about what it is going to
25 glean from other entities and use, and determine which areas the County is not
26 comfortable with. Road BMP's can be easily used. The three core programs in the
27 Tri- County effort are habitat funding, watershed planning, and adaptive
28 management. The Tri- Counties are saying that those three basic program areas
29 are structured in a way to get 4(d) coverage. The other program elements rely on
30 those key programs for support and guidance. The areas they focus on then are
31 road maintenance, stormwater management, and land management. Road
32 maintenance is close to being done. Regarding road maintenance and stormwater,
33 Whatcom County will be well advised to look at those intact. The stormwater
34 section, in his opinion, is being discussed and is what Whatcom County will be
35 required to do from DOE and the Environmental Protection Agency (EPA).
36
37 Moody stated that the EPA has just adopted new rules for the National
38 Pollutant Discharge Elimination System (NPDES) permit program. In the past, only
39 six municipalities in the state were required to have these kinds of permits that
40 address stormwater. Under the new rules, an additional 90 municipalities will be
41 required to have something similar.
42
43 Monsen stated that is focused to the growth boundary of Bellingham, for
44 example, and not outside the growth boundary. The County has to pay attention to
45 any policy that applies its application beyond the growth boundary.
46
47 Brenner asked what happens if they get to a conclusion that any more
48 development will have a negative impact.
49
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Moody stated that, politically, NMFS doesn't want to go there. They do not
want to get into a take versus takings argument and see the ESA threatened and
sued. They are going out of their way to accommodate reasonable use to avoid a
takings, as opposed to a take.
Brenner asked if ESA affects only a few more rural states and why congress
is getting involved. Moody stated the 4(d) rule, when it becomes effective, creates
federal law that prohibits certain activities if they affect a species and its habitat. It
does not apply to just cities and counties. It also applies to individuals and anyone
who is permitted to take action.
Brenner questioned whether the ESA stuff affects only a few western states.
Imhof stated that is just the fish. Every state has some kind of ESA listing.
Brenner questioned whether this will make it tougher on the other states.
Imhof stated everyone will be affected on different things.
Monsen stated Puget Sound salmon raised the bar of complexity.
Moody stated the spotted owl issue a few years ago was also very complex.
Dawson asked if the definition of "take" has been narrowed down by court
cases. Lloyd stated no. It has been strongly upheld by court cases. The standard
of proof has been made more challenging. If one harms the breeding behavior or
interferes with freshwater rearing of juveniles, for instance, it falls under the
definition of a take. Proving that happened has become more difficult than some of
the standards under the Clean Water Act, for example. "Take" is more difficult.
Brenner questioned for whom it is more difficult, the accused or the accuser.
Moody stated the most recent case law has been the subject of much controversy in
Puget Sound. There is one instance in Maine involving a whale. The state allowed
fishing activities to occur that killed the whale. Through a court case, the state was
found liable because it permitted the activity.
Brenner asked where the burden of proof lies. Moody stated it lies on the
accuser.
Thompson stated the take also applies to habitat.
Moody agreed.
McShane stated that is a tricky scenario.
Brenner questioned how close to the result of a take must an action be to be
considered a taking.
Dawson stated that is still being defined.
Water Resources Work Session, 6/20/2000, Page 10
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Moody stated applying a reasonable person's logic to many of these issues,
they will address the significant part of the risk as a municipality.
Brenner stated the term 'reasonable' is subjective. Moody stated it is not as
subjective in a court setting.
Dan Gibson, Senior Civil Deputy Prosecutor, stated the definition will be
refined over the next eight to twelve years. They are not going to see the take
cases early on, except in the most egregious of circumstances. Politically, NMFS
will do it only in the most egregious of circumstances. Environmental groups who
will bring forward third party suits will choose their cases with care. They will
approach their litigation strategically.
McShane stated the reasonableness is defined by case law. Gibson stated it
is, but it will shift over time. Regulatory agencies depend on modeling. As it
becomes more refined, they will deal more with models than with the dead fish. It
will take a while to get to that point. There will be litigation. Cases will be carefully
chosen. If the evolution in the law is toward modeling, he estimated that it would
be eight to twelve or fifteen years away. Whatcom County will be doing this that
long.
Moody stated there are two questions. One question is how society will
address salmon recovery. The second question is how to deal with ESA legal
liability. Salmon recovery subsumes ESA compliance. If one is headed down the
road of salmon recovery, then he or she has met the ESA requirements. They don't
have a clear sense on where the public is on those issues.
Brenner stated the decision is about money, but it is also about the impacts
on many individuals.
Moody stated they have not addressed the true cost of development in the
past. That is why they are in the mess they are in.
Gibson stated jurisdictions like Whatcom County have to adopt a philosophy
that shows a positive approach to this. From a strategic standpoint, jurisdictions
should be serious about recovery. That is where Whatcom County is. Whatcom
County is serious about recovery. They will talk about recovery versus a take later.
Dawson stated they should not destroy a person's historical occupation, such
as farming. Farming is a part of Whatcom County's culture and history. They need
to look at that point of view.
Brenner stated Whatcom County has already made a serious commitment.
The frustration comes from the roadblocks and detours. They don't know where
the road is anymore.
Gibson stated the road will become more defined.
Water Resources Work Session, 6/20/2000, Page 11
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Nelson stated that if NMFS knew how to solve this, it would set up rules that
would be passed down federally, through the states, and to local jurisdictions. The
local jurisdictions would implement the rules that would solve the problem.
Unfortunately, neither NMFS, the state Department of Ecology (DOE), nor the local
jurisdictions know how to solve this. Right now, everyone is in the problem - solving
matrix.
Brenner stated the reality may be to do the least amount of harm instead of
no harm, but that isn't what the information says.
Monsen stated they will discuss writing the recovery plan. A key element of
writing the plan is creating the process to design how to make decisions about what
will be reasonable and what the County will take on. He wanted guidance from the
County Council on how to create that process, so the County Council can make
informed decisions and the community understands. By the end of year, the
County needs to establish the intended course, but not necessarily the details.
Nelson asked how Mr. Monsen would get information to the Council to review
and provide feedback if the County was to use the programs from other
jurisdictions, such as the road maintenance and stormwater elements of the Tri -
Cities. Monsen stated they can put time and effort into developing a detailed draft,
or make those decisions chapter -by- chapter, which is more inclusive but is a
substantial effort.
Imhof stated they don't have the time. Whatcom County needs to plagiarize
what it can and use it as a rough draft, then engage the public in the review of that
draft.
Nelson questioned the elements they need to develop.
Imhof stated the elements are the same as those in the Tri- County effort:
roads, stormwater, and land management.
Monsen stated there are four elements of land management in the Tri- County
effort. Those four efforts include countywide planning policies, regulation of
development, urban area issues, and agricultural practices.
Moody stated their development standards apply to rural areas.
Monsen suggested starting from that point. Tri- County will not adopt an
agricultural element, but will engage in a region -wide agricultural process. He will
suggest that Whatcom also engage in that process.
Gibson stated there is an Agriculture, Fish and Water Process (AFW) that is
intended to parallel the process used for Timber, Fish and Wildlife. It was a process
designed to bring stakeholders to the table and work out agriculture practices to
comply with the requirements of ESA. The Agriculture, Fish and Water Process has
not been a success. The AFW process is starting to splinter. One splinter is a West
Coast process to address agricultural concerns on the west side of the state.
Water Resources Work Session, 6/20/2000, Page 12
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Dawson stated it makes sense due to different problems of the east side and
the west side. On the west side, Wahkiakum and Pacific counties are in different
positions than Whatcom and Skagit counties.
Nelson asked the resources Whatcom County has to assist it in preparing for
the areas of weaknesses they would address for the WRIA #1. One resource is the
Tri- County plan that Whatcom County could utilize. He questioned what other
areas they need to address within WRIA #1. If they are going to develop the plan
to protect fish, they can plagiarize what others have done, but there may be
problems with doing that that they need to address specifically. Monsen stated
they want to engage within the revised agriculture process. They also want to go
through a concerted effort to understand and apply the shoreline master program
update process. They should continue to be involved with what is going on
regarding stormwater management in the state. The County still has the ability to
select those that apply. There are many things regarding stormwater that are
textbook issues. Having a long debate is not productive. However, they need to
understand those issues enough to know which ones apply and which ones don't
make sense. He suggested they pay attention to how that is developing and make
sure they don't get run over, but don't re- invent the wheel either.
Nelson asked how long it would take to put together a plan consisting of
those three elements. Thompson stated it depends on which elements need to be
developed in more detail.
McShane stated they need to distinguish what is generic that Whatcom
County can plagiarize and what the County needs to put extra effort into.
Nelson stated they need to look at it, consider it, and move on to other
issues. Otherwise, they will spend a lot of time spinning their wheels in these
meetings. He is trying to find a process. If these are the areas of strong concerns,
then the Council could digest the areas that aren't of concern while the staff is
focusing its energy and efforts into the areas of concern.
McShane stated they are trying to
where there are some things that would
what is applicable to Whatcom County.
set policy for the County. This is an area
be simple to copy, and then bring forth
Moody stated the road maintenance BMP's are a slam dunk. They are an
engineering solution. NMFS and other agencies already agreed to it. Stormwater is
a product of the land management element. They may think they want to have an
engineering solution for stormwater, but it will not work.
McShane stated one area it is a big change in the NPDES permit when 90
more municipalities have to take it on. Whatcom County will have to look at
whether it only applies to the urban growth area around Bellingham, or if the
County will want to extend it to other areas.
Nelson stated it is significant to look at. They will be ahead of the curve.
Water Resources Work Session, 6/20/2000, Page 13
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Dawson asked if some of the state road standards are detrimental to fish.
Moody stated the state Department of Transportation (DOT) is the largest land
developer in the state. They are in the process of negotiating a set of similar
standards that the Tri- County effort developed for state highway application. It is
moving along successfully. They will have a categorical exemption soon from a
take. Most of the roads are federally funded, so section 7 consultation is required.
Brenner stated it is a catch -22. It is federal funding, so they have to have
certain standards, and the ESA listing is also federal.
Imhof stated DOT gets an exemption because they follow certain standards.
Moody stated they are the biggest developer, not the biggest impact. The
biggest areas where they have problems with fish and land management is next to
the rivers and streams. It is the riparian areas where they impact the temperature
and water quality. They exacerbate the problem when they channelize stormwater
areas.
Brenner questioned whether there is more runoff from big wide roads than
from narrow roads. Moody stated that is physics.
Brenner stated DOT standards would create bigger impacts than lesser
standards on rural roads, all other things being equal. Moody stated that anytime
DOT proposes big wide roads, it will be reviewed about whether it will hurt salmon.
They have to figure out how to do growth in a smart fashion.
Status of local salmon recovery plan
Monsen stated they are going to move on to shorelines and provide a status
report on the Chinook recovery plan in a written form.
Nelson asked what the plan is on how to develop a Chinook recovery plan in
the WRIA. Monsen stated he would provide an answer to that question in his
written report. Now he wanted to discuss participating in the Western Washington
agricultural process. They are looking for Council support to engage in that
process.
Imhof moved approval for the County to participate in the Agriculture, Fish
and Water Process (AFW).
Monsen stated engagement in the process means that the County intends to
implement the collective outcome. It doesn't mean the County can't withdraw at
some point as information is gathered. The intention to engage today is to
participate in a collective process and implement the outcome.
Brenner asked if a positive is to save on financial resources. If there are
sticky points, the County can withdraw and do its own plan that his based on it but
doesn't implement every part.
Water Resources Work Session, 6/20/2000, Page 14
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2 Monsen stated the biggest challenge locally is to engage in the agriculture
3 community adequately so that they are on the same page. That would be a
4 priority.
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6 Imhof restated his motion to join the Western Washington agriculture
7 caucus.
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9 Motion carried unanimously.
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11 Shoreline Master Program
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13 Gibson stated the DOE issued proposed shoreline rules some time ago. The
14 DOE received a lot of negative feedback. Politically they would not proceed with
15 the rules they proposed. The DOE then stepped back from their proposed rule. At
16 the same time, the 4(d) rule came out. At this point, the DOE issued 157 pages of
17 the new proposed rules. They have proposed path A, which is "shorelines light" and
18 path B, which is "shorelines heavy." If a jurisdiction decides to pursue path B, the
19 federal agencies assured 4(d) coverage. Those are the two paths that have been
20 laid out in the new proposed rules. Shorelines light is not light. The philosophy
21 that guides the shoreline management programs now is to do no harm or as little
22 harm as one can manage and that would still be reasonable. Path A marks a
23 distinct shift in philosophy, which is to protect and restore. Everyone recognizes
24 the need to have a restorative element. The problem is how to address that
25 philosophy in a permit context. When someone comes to the County for a permit
26 within the shorelines, the County must have a baseline for determining the amount
27 of restoration that needs to occur, the goal for restoration, how much each project
28 should do for restoration, and how to monitor that restoration.
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30 Brenner asked if there is a choice.
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32 (Clerk's Note: End of tape one, side B.)
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34 Brenner asked if path A allows one to create habitat that makes it better
35 rather than just tear it down. Gibson stated that is correct. It doesn't require
36 removal of existing structures. Existing uses are grandfathered in.
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38 Brenner questioned whether path B has such a requirement for habitat
39 protection and shoreline management.
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41 Gibson continued to stated the philosophy of protection and restoration are
42 based in the Revised Code of Washington (RCW) 90.58.020. He searched in vain
43 for any statutory basis for protect and restore. That section says that there is a
44 great concern for protection and restoration in shoreline utilization. They are
45 making a generic concern for restoration and protection into a policy.
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47 McShane questioned where it says restoration. Gibson stated it says that
48 one has to have shoreline management provisions that provide for restoration to
49 get a permit.
Water Resources Work Session, 6/20/2000, Page 15
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McShane questioned under what context they would be providing for
restoration. Gibson stated if one is seeking to develop within the shoreline, he or
she must not only prevent damage, but also must provide for restoration.
McShane stated that is different for different areas, according to how the
shoreline program operated in the past. They will have urban areas, resort areas,
and other types of areas that will all be treated differently. Gibson stated Whatcom
County has that now. There are shoreline environment designations. The
categories may shift. The treatment of activities within those various areas will
differ. The philosophy of restoration permits both paths A and B. It is disturbing
from a legal standpoint that the state reached well beyond its statutory mandate.
Practically, there is not a great deal of value in fighting it.
Monsen stated the issue is the role of the individual landowner and the role
of the County. There is no requirement that the permit applicant do the
restoration, only that restoration happens. He is not recommending that the
County does all the restoration, but restoration is not necessarily only for when
someone makes a permit application. They are doing restoration work all the time.
There is a relationship between what they are doing proactively and this regulation.
Gibson stated restoration activities are under way now. They need to ask
what restoration meets the requirements of the state. The DOE has to approve the
new shoreline amendments. In doing so, the DOE will be sensitive to NMFS and
U.S. Fish and Wildlife looking over its shoulder. In approving that local program,
they will look at whether local entity has met the standards for avoidance of take.
Once permitees obtain a permit from the County, it is subject to review and
approval by DOE, under the shoreline management master program.
Nelson asked why the County makes the applicant go through the County
rather than going straight to the state DOE.
Gibson stated the County went through that with dock issues. The County
makes the first cut via the Hearing Examiner and the County Council. DOE will
pass it or deny it themselves.
Brenner asked why the County gives the application a first cut. She
questioned why the County is even looking at it if DOE is the final word.
Nelson stated the public says the same thing.
McShane stated that abdicates the local responsibility control.
Brenner stated the County can advise and help the applicant.
McShane stated the County won't be advising and helping an applicant if they
don't have a shoreline program. A shoreline program is a local program that
supposedly fits into the local goals. It has to be accepted by the Department of
Ecology. If a good program in place, then there is a benefit to that.
Water Resources Work Session, 6/20/2000, Page 16
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Dawson stated that what was previously accepted hasn't really been
accepted.
Gibson stated Councilmember McShane is correct that Whatcom County will
have a shoreline program. The question is whether it will be written by DOE or by
the County. The County may not like that choice, but it is a political subdivision of
the state.
Brenner stated the County will end up being a political administrator for the
state rather than policy makers.
Nelson asked the timeframe it takes to obtain a shoreline permit application.
Sylvia Goodwin, Planning Division Manager, stated it takes no more than 120
days. It takes longer if one needs a variance.
Nelson asked if has to go to the state. Goodwin stated the County sends it to
the state to respond in another 60 days. It is longer with a variance or if it is
appealed.
Nelson asked why an applicant has to apply to the County if DOE has to look
at it. The DOE approved the County's shoreline plan in the first place.
Brenner stated it should be either one or the other.
Nelson stated they need to keep responsibility at the local level or let the
state take it over. They can't have it both ways.
McShane stated the DOE makes sure the County is following its program.
Brenner stated the state is treating the County like a child.
McShane stated some counties act like children. Overall, the Whatcom
County shoreline program is a good program. The County has a responsibility to
have a good program in the future as well.
Brenner stated a middle ground would be for DOE to only review applications
that are questionable. It is ludicrous to do both.
Gibson stated in most instances, the DOE is not looking for problems and
they would be happy to rubber stamp the County decision. That is not always true,
especially with docks. It is to the public's benefit to have the County do it, and DOE
will not relinquish its power.
Gibson continued to state that agriculture is an area of primary concern.
Agriculture interests were one of the loudest voices on the proposed rule. The
proposed rule says that current agricultural uses are not subject to the new
shoreline provisions. Currently existing agricultural uses are not subject to the new
Water Resources Work Session, 6/20/2000, Page 17
1 shoreline management provisions. That sounds like a message of assurance to
2 farmers. However, they have to be careful with that. They are talking about
3 current tillage. Part of farming, in the flood plain in particular, is ditch
4 maintenance, levee maintenance, levee repair, and new levees as the river shifts.
5 That is where they run head -on into the new provisions. There isn't any way
6 around that.
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8 Brenner stated an increase in acreage would be a change. Gibson stated
9 additional clearing within the shoreline area would be subject to the new shoreline
10 provisions. There is not a lot of new land being brought into tillage within the
11 shoreline jurisdiction in the agriculture zone.
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13 Brenner stated they want to prevent development in flood plain areas and to
14 leave the area to be used as farming areas.
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16 Imhof stated there won't be any new land. All the land in the flood plain is in
17 production now.
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19 3. ESHB 2514 WATER RESOURCE INVENTORY AREA (WRIA) PROJECT
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21 Groundwater Management Proposal
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23 Roll stated after the first day of meeting, Utah State University (USU) will
24 take comments made into the final draft. The Planning Unit and Initiating
25 Governments (IG) staff felt there wasn't enough time for adequate comments and
26 extended the comment period for another month. July 14 is the next due date.
27 They still have a draft coming out on June 26. The next iteration on this, from the
28 two days of meetings they've had, will produce another draft for which they will
29 need comments by July 14. The second item is a proposal in the packet. They
30 talked some time ago about integrating groundwater issues with the WRIA. This
31 codifies the Planning Unit saying they want to deal with groundwater in this
32 process. It also says there is a need, because there are issues related to
33 agricultural practice with early action items. This establishes a sub -unit of the
34 Water Quality Technical Team that will focus on early action items related to
35 groundwater issues. This is in place of the idea of a groundwater management
36 area or special protection area. The Planning Unit wants to concentrate on early
37 action issues. As they evolve through assessment, they will make a
38 recommendation. The troupes felt there is a lot of work to be done now. He is
39 asking if the Council concurs with this approach. Also, there is $250,000 sitting in
40 the second installment of the WRIA planning process. He proposed to take some of
41 that money and do some early action items. It is phase II money.
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43 Brenner asked who is going to manage that. At the end of phase I, there
44 was going to be a re- evaluation of who is going to manage it. Roll stated they are
45 not talking about water rights, only groundwater issues. This is grant money. It
46 also recognizes the need facilitate identified prioritization of the early action items
47 that they can do.
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49 Brenner asked if groundwater is part of this. Roll stated it is.
Water Resources Work Session, 6/20/2000, Page 18
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Dawson asked if it involves hiring a facilitator. Roll stated it might. The
proposal is only saying they want to use some of the $250,000 to address early
action projects. The proposal identifies the budget for that. The proposal talks
about some of the early action projects, such as research on BMP's, demonstration
projects, and education. This would be linked to predominantly the agricultural
community as well as the water purveyors of contaminated wells. It will look
mostly at those people who have groundwater quality issues.
Brenner stated that is a significant piece. Roll stated it is significant in the
data assessment. This is work done on the ground.
Nelson asked if they want to fund that approach. They are not yet agreeing
on what they are going to try to accomplish.
Roll stated they are finding that an engagement of groundwater was greater
than anticipated. USU said they can't ignore groundwater. From the assessment
phase, they have brought in more continuity issues with the groundwater modeling.
At the same time, there was a proposal about groundwater.
Nelson moved approval.
Brenner asked if this is the same amount of money. They are talking about
$2.5 million. She questioned whether they are just doing something a little early
that wouldn't throw them off. Roll stated these are separate issues. These are
early action projects that can be done on the ground as a result of the planning
process.
Brenner asked if it will affect anything if they change anything. Roll stated it
won't.
McShane asked where the grant money comes from. Roll stated it comes
from DOE. There is $500,000 total. The first half was used to kick it off. The
second part is to do the development of the plan and implementation of early action
steps. That money can be used for these types of things.
Brenner stated she was concerned that they have a schedule, yet they keep
doing it piecemeal. They will end up with no money. The schedule doesn't mean
anything.
Nelson stated they need to have something defined as the County's
approach.
Monsen stated the focus of the next work session is financial planning.
Nelson restated his motion to fund that proposal, but he wanted to see the
specifics.
Water Resources Work Session, 6/20/2000, Page 19
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Roll stated he was specifically looking for Council support as he goes to the
Planning Unit to say the County wants to look at the proposal in the Planning Unit.
Any projects would come back through.
Motion carried 5 -0 with Brenner abstaining
Brenner asked for a glossary of all the acronyms to be included with all
future packets. In addition, the first part of the summary was too technical to read.
Roll stated that was brought up in the meetings. They are re- crafting that. The
first summary was directed to technical people. They learned yesterday that there
is a broader audience and they need to invest more time in the background. They
are going to work on that. They will expand it.
ADJOURN
The meeting adjourned at 12:02 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on July 11 _, 2000.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Marlene Dawson, Council Chair
Water Resources Work Session, 6/20/2000, Page 20