HomeMy WebLinkAboutWater Resources March 14 20001
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Whatcom County Council
Special Water Resources Work Session
March 14, 2000
The meeting was called to order at 10:07a.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 L. Ward Nelson
Connie Hoag
Dan McShane
Sam Crawford (arrived at 11:10 a.m.)
Bob Imhof (arrived at 11:25 a.m.)
WATER RESOURCES WORK SESSION (AB2000 -070)
Jeff Monsen, Public Works Director, stated the first two items should be done
as soon as possible so they can have as much time as possible to deal with the
ESHB 2514 update and action items. They will be introducing additional action
items. In addition, they will give a brief summary of item six before they discuss
item five.
Salmon and the Endangered Species Act (ESA)
Monsen questioned whether the councilmembers received copies of the two
letters he sent to the National Marine Fisheries Services (NMFS). One of the letters
addressed the 4(d) rule in general, and the other was specifically about tribal
issues.
McShane stated he was impressed with the letters.
Dan Gibson, Senior Civil Deputy Prosecutor, summarized the letters. There
were two letters because the 4(d) rule was divided into two parts. The bulk of it is
what the staff has been looking at and considering as the 4(d) rule. The other
portion specifically addressed the interaction between NMFS and the various tribes.
Regarding the tribal letter, the comments were addressed to a phrase that
was contained within the proposed rule that said the interaction between the
Secretary of Commerce, who oversees NMFS, and the tribes would be conducted
consistent with legally enforced tribal rights and with the Secretary's trust
responsibilities to tribes. Clearly, there are legally enforceable tribal rights, and
there are trust responsibilities to the tribes. However, the way it was phrased
caused concern. It seemed to suggest that the level of take, which would
appreciably reduce the species survivability, was somehow connected to those tribal
rights and trust responsibilities. The County's point in its comments was that the
tribal rights and trust responsibilities should be recognized and dealt with, but they
Special County Council Water Resources Work Session, 3/14/2000, Page 1
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should not pretend they can take more and not affect survivability simply because
there is a right or trust responsibility involved. NMFS should be honest and up
front. NMFS should not say that the biology is contingent upon the politics. The
letter is not to play politics on the other side. The letter simply says they should
define, up front, the way they understand the law, and then guide the biological
choices with that in mind.
The credit for the second letter should go to John Thompson and John
Sproul. It is fine work.
Bruce Roll, Water Resources Manager, stated John Sproul is the newest
member to the Water Resources staff.
Gibson stated John Sproul worked with the NMFS. That experience is
reflected in the quality of the comments, primarily comments three through the end
of the letter. It enabled him to change his comments to reflect the format that
Sproul used. He said in the letter that there is an underlying philosophy that seems
to be guiding NMFS, by way of the development of 4(d) rules. He understands
practically why they take that approach. However, there are some flaws to it. It
would appear that the greatest amount of good that can be done will be done
outside of the heavily urbanized areas. The urban areas have a role to play, but
fish will mostly likely thrive in areas that are not urbanized. Because of staffing
issues and for other reasons, the NMFS proposed 4(d) rule largely engages the
large municipalities or governmental agencies. The one exception is the state's
new forest practice rules. The rule suggested that they should look where they
could do the most good if they are looking to use money efficiently and to use the
law efficiently as a tool of recovery. The rule further said that they should develop
the incentive program and regulatory program to areas where they can do the most
good. They shouldn't write the other areas off, but in terms of priorities they start
where they can do the most good and then move elsewhere.
The comments are in support of that philosophy, recognizing they are not
going to get NMFS to shift its philosophy. It lays that out as a difference of
direction. The comments the County staff made were in support of not applying
urban models to large agricultural areas. They were very tempered in the remarks.
John Thompson has worked with the tribes and John Sproul has worked with NMFS.
They are much more finely tuned to the issues than he is.
Hoag stated she liked the comments about the agricultural areas.
Brenner asked if it would be helpful to send copies of the letters to other
jurisdictions that are in the same predicament. A lot of the other communities
share the same concerns and understandings. If they haven't written letters, it is
possible that Whatcom County's letter will inspire them to write letters. She
questioned which other communities are in a similar situation.
Monsen stated a number of counties intended to respond. He didn't know if
they actually did, but he is trying to determine that. He has the state's response.
Special County Council Water Resources Work Session, 3/14/2000, Page 2
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Brenner suggested that, for the future, they should get a list of the other
communities that are seriously pursuing this.
Monsen questioned whether there a list of respondents now that NMFS has
received comments. Gibson stated that would be developed as they collate. As
they respond, they will lay it out more fully.
Dawson asked when NMFS is supposed to respond.
Gibson stated when they issue their final rule. It is accompanied by a list of
responses to the comments. It is expected maybe in June or July.
Thompson stated their comments won't be specific to each jurisdiction's
comments. They are going to bundle the similar comments from the various
jurisdictions.
Brenner stated someone from another county might see Whatcom County's
letter and realize the similarities.
Gibson stated counties in a position similar to Whatcom County are well
served by communicating and seeking to cooperate with other similarly situated
counties. The population mass and accompanying financial mass that the large
counties bring to bear disadvantage the counties that are financially small with a
bigger recovery area.
Monsen asked the Washington State Association of Counties (WSAC) to make
sure there is a Government Council on Natural Resources meeting later this month
and have a discussion about the comments that are being made.
Brenner asked if there is a list of other similar counties that Whatcom County
has been in touch with. Monsen stated they will make those contacts.
Hoag asked if they have a copy of the state's comments. Monsen stated he
has the state's comments.
Hoag stated she agreed with the comments in the letter. Regarding
comment 5A, she questioned what is excessively burdensome. Gibson stated it
relates to watershed conservation plans. It refers to one of the requirement for
acceptance of a watershed conservation plan. NMFS said local plans should be
routed through the state for approval, then go to the NMFS. John Sproul's point
was that there may be a case in which a locality may develop something that
doesn't meet state approval, but is worthy of a look by NMFS.
John Thompson, Resources Planner, spoke on the Chinook Recovery Plan.
Folks are meeting weekly to coordinate writing the sections that are incomplete.
The bulk of the draft in hand now was put together by the Lummi Nation and the
Nooksack Tribe. The plan was handed to the County in November /December to
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deal with the land use section. The Habitat Management Plan is what the County is
working on now. The core team working on it now includes people from the
County, the City of Bellingham, the Whatcom Conservation District, Lummi Natural
Resources, and Nooksack Natural Resources. As they progress, they will include
people from other agencies. Now, the priority is drafting the Habitat Management
Plan. It will spell out specific objectives and goals for how Whatcom County, land
regulators, and other land managers will meet the challenge. They need to spell
out the substance, the certainty, and the results. The plan has to tell NMFS what
they will do, what the outcome will be, and what the timelines will be. They will
also rewrite the exiting draft sections. The intent is to improve the readability. The
audience will be councilmembers and the general audience. They need to lay out
the sections so it can be understood by the layperson. They also need to include
the technical background and scientific basis for goals that are stated and the
targeted outcomes. This will go through technical review by NMFS. At the next
work session, he can give a more substantive update on specific sections. He is
working with Scarlet Tank on a timeline to show the steps needed to complete the
plan. He received comments from a number of councilmembers. He will
summarize the comments and provide responses and background information.
Thompson provided an update on the recovery projects /grants. There are
two main outstanding grants, including the Salmon Recovery Funding (SRF) Board
applications that were due at the end of February. On Friday, he received the SRF
Board staff recommendations that are going to the SRF Board this week. The SRF
Board staff will go out to contract during the next few weeks so folks can spend
money. There is a breakdown of what was requested and what has been proposed
for funding (on file). Whatcom County requested $1.7 million. The SRF Board staff
recommends that Whatcom County receive $1.2 million. That will fund Whatcom
County's top five projects, including the land acquisition project in the area of the
south fork of the Nooksack River. It is in an area that has heavy historical use by
the Chinook salmon. Part of the reason why that property ranked high locally and
also with the scientific review panel is because it is in a reach that has critical use
for salmon. It also ties into adjacent properties in the process of acquisition. On
the east side of the valley is the Nesset Farm and other County -owned properties.
The east bank is going into public ownership. There is an opportunity to do good
things for the fish.
Hoag asked if the Land Trust acquisition will acquire the left bank. Thompson
stated it will. There is a 200+ acre parcel, and are negotiating for two or three
other parcels on the west side of the river. It will be a good reach to restore a lot
of natural function. Whatcom County did well. The projects that didn't get funded
were mostly culvert projects. The staff didn't recommend funding for many culvert
projects. They felt it was too difficult. With some projects, if they don't have a
complete culvert inventory for the entire basin, then they are not completely
opening up the habitat. They also asked about strategy. If the County is opening
access to a sub - basin, they questioned the land use for the sub - basin. They asked
if the County has established impervious surface thresholds or mature stand
thresholds. They want to know the long -term land use plan so they know that the
benefit will last.
Special County Council Water Resources Work Session, 3/14/2000, Page 4
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Brenner stated any culvert opening will increase habitat. Thompson stated
they see a lot of proposed culvert projects for that reason. They felt at this point
that they lacked the information Puget Sound -wide to make those calls. Also, they
have a limited pool of money, which was effected by Initiative 695. The County
told them that it felt the culvert projects were good projects.
Hoag asked if there is sufficient road fund monies to do the culvert road
projects. Monsen stated that with the supplemental funding, they hoped they'd get
funding. The Public Works Department will start on the list. Thompson stated
some projects on the list are not county roads, but are on private property. To a
large part, they will look to the Nooksack Salmon Enhancement Association (NSEA).
Hoag questioned whether the County has sufficient road funds to fund the
projects within the County's jurisdiction. Monsen stated they do. Supplemental
funding allows them to go further faster.
Brenner asked if they took the availability of road funds for those projects
into consideration when they didn't fund many culvert projects. Monsen stated the
issue is bigger than that. In the past, the State Department of Transportation
(DOT) has set money aside for culvert work. This may have been an easy out.
Hoag asked if the SRF Board deals with federal or state money. Thompson
stated they have funding from both sources. It is the body that has been appointed
by the governor. Their job is to provide accountability in the process for
distribution of salmon recovery dollars.
Hoag asked if all federal money comes through them. Thompson stated it
does for this program area.
Dawson questioned when they would find out for sure about funding for the
projects. Thompson stated they would hopefully know Thursday.
McShane asked about the other four projects that would be funded with the
money. Thompson stated the projects include the Whatcom Land Trust acquisition
project; a historic scale log jam in the upper south fork; a Grouse Butte sediment
reduction program sponsored by NSEA, who is working with the Forest Service to
fix logging roads; the Marietta Slough land acquisition project. That is the property
on Marine Drive at the Nooksack River. The state department of Fish and Wildlife
would sponsor that project. The fifth project is the Johnson Creek culvert project
on Mosquito Lake Road. They may fund that because there was a watershed
analysis and a lot of work has been done in the south fork area.
Hoag asked if the south fork has the smallest numbers of Chinook.
Thompson stated it does.
Thompson stated they expect another round of SRF Board funding in June.
There were three applications for jobs for the environment funding, which targets
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employment for displaced natural resource workers. Three proposals were
submitted, one from NSEA, one from Lummi Natural Resources, and one from
Nooksack Natural Resources. All three emphasize the south fork. The lead entity is
supportive of the projects. The lead entity is Whatcom County. All three
applications overlap.
Brenner stated Fenton Wilkinson has been working on Sustainable Options to
put displaced loggers back to work. She suggested that staff contact him and work
with him.
Thompson stated applications are due tomorrow. Given the level of
coordination between three groups, there is a good chance that all three will be
funded.
Dawson asked if he analyzed other counties' programs that were funded.
Thompson stated George Boggs has a breakdown of all projects by county.
Brenner asked how good the chances are of getting these recommendations.
Thompson stated this is the first time for this process, so they don't know. He
believed the staff recommendation would carry a lot of weight. The question is how
much money is available, and if they have enough to fund the requested $14
million.
McShane stated he believed the SRF Board has more than $14 million.
Lake Whatcom
Roll stated Council brought forward the enforcement issue. The concern was
to provide information so people know how to deal with erosion. He submitted
draft informational materials to hand out to contractors. They will also talk about
the stormwater workshop. Over 85 people have signed up for the workshop.
Erika Stroebel, Lake Whatcom Specialist, stated that with the recent adoption
of 2000 program plan, she wanted to talk about the activities going on to reach
objectives of that plan. Two high priority areas are urbanization /land development
and stormwater management in the watershed. A variety of tasks in each area will
help reduce impacts of water quality concerns. She wanted to discuss two activities
that are going on. One is enforcement activity in the watershed. The second
element is the stormwater maintenance workshop.
Roll introduced Ivana Halvorsen as the temporary erosion enforcement
person for Lake Whatcom.
Hoag questioned what Halvorsen enforces.
Ivana Halvorsen, Land Use Specialist - Compliance, stated she mostly enforces
stormwater control and some illegal developments.
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Hoag questioned what hours she works. Halvorsen stated she works 40
hours per week.
Dawson questioned whether she ever enforces on the weekends. Halvorsen
stated she hasn't experienced anyone trying to get around her enforcement by
working on weekends.
Halvorsen stated she looks at erosion problems related to new home
construction, fill and grade projects, and clearing. The timeline of the development
of her position began in 1998 from the watershed tours held by Erika Stroebel and
others. The County staff found significant violations that needed to be addressed,
and then they hired her. Since January, when she started, she opened 54
compliance cases. Fifty are related specifically to erosion or sedimentation controls.
Twenty -eight cases have been closed, which means the sites have come into
compliance with the Whatcom County Code.
McShane questioned what portions of the code she has been enforcing.
Halvorsen stated she enforces specifically the Lake Whatcom area and deals only
with the new overlay zone. She has tried to get others to comply with the new
overlay, even though they are vested.
Hoag questioned whether the code specifies an allowable amount of
sedimentation. Halvorsen stated the law requires that measures be installed to
control sedimentation. She interprets it to mean all sedimentation from the site.
Hoag asked what happens if there is still sediment coming from the site,
even though the measures are installed. Halvorsen stated the developer is not in
compliance. She tells people that erosion and sedimentation control is a work in
progress. There is no quick fix to it. A silt fence is not installed properly a lot of
time. She will require additional measures if necessary.
(Clerk's Note: End of tape one, side A.)
Hoag asked if the compliance actions are only to require certain measures, or
if the County follows up to ensure that there is not any erosion going off the site.
Halvorsen stated she makes sure control measures are installed and work. If they
don't install control measures that work, she makes them install more control
measures.
Brenner asked if there is a zero tolerance on sediment erosion. Halvorsen
stated it is a gray area. There are different levels of sediment coming off of the
properties. If there is a constant flow of material that drains onto a County road or
into a culvert that drains directly into the lake, it is more serious than one cup of
material that flowed into a ditch two miles from the lake in Sudden Valley. She was
not comfortable saying there is zero tolerance.
Special County Council Water Resources Work Session, 3/14/2000, Page 7
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Brenner stated the cumulative effect of the little stuff ends up being bigger
than one major problem. Halvorsen stated everyone installs the proper measures
for erosion sedimentation control, regardless of the amount of erosion.
Brenner asked if staff wants Council direction to have zero tolerance.
Halvorsen stated that has already been done by the watershed overlay. There is a
difference between what is written and what is practical.
(Clerk's Note: Crawford arrived at 11:00 a.m.)
Monsen stated this is an introduction into where the enhancement activity is
going. There are key individuals from the Planning Department that need to be
present for that kind of discussion. The Water Resources Division and the Public
Works Department are not engaging the Planning Department in land use
enforcement. They are helping to facilitate a learning process that will hopefully
result in serious consideration of enforcement of what they have learned.
Hoag stated the information talks about sediment from construction.
Stormwater includes runoff from roads that carries contaminants and runoff from
yards. She questioned whether Halvorsen addresses that. Halvorsen stated she
addresses road issues. It is a more difficult issue, so they take longer.
Hoag stated she was talking about other contaminants off of a paved road,
for instance, that end up in the water. Halvorsen stated that is not a compliance
issue, but is a stormwater issue.
Hoag questioned whether they are addressing that issue in the stormwater
information, or if they are only addressing sediment control. Stroebel stated there
are enforcement actions in the watershed that are based on erosion control. They
will have a workshop to address maintenance of stormwater facilities.
Monsen stated they are looking for a consultant proposal to put together pilot
work in the watershed, specific to road activities.
Hoag stated she was concerned that there are problems from sources other
than construction. She questioned whether the County is looking at those other
sources, or only construction sedimentation.
Roll stated they will give an update soon on where they are with the
Comprehensive Stormwater Plan. Pieces of that also look at sources such as
herbicides and pesticides. There are a number of tasks outlined in the plan. They
are honing in on those, but it is a very big piece of the work they are doing.
Brenner questioned whether the enforcement only addresses new sources or
whether it also enforces ongoing problems. Halvorsen stated she addresses
everything she sees that creates a sediment problem.
Special County Council Water Resources Work Session, 3/14/2000, Page 8
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Halvorsen stated that most building sites are not in compliance with erosion
control requirements. She doesn't focus on sites that aren't causing a problem.
New home construction is not the only source of violations. Also, fill- and -grade
projects and land clearing projects, which are related to home construction. There
are also independent projects. In the community, there is a lack of knowledge
about the erosion control requirements, specifically the measures that are available.
Brenner stated that surprised her. She asked if Planning and Development
Services gives out information. Roll stated that is what the draft information
documents are for. This is a piece of the task identified in the water resource plan.
If this is an issue that the Council wants to devote more time to, they can do that.
Brenner stated she understood there would be problems with a private
person being his or her own contractor. It is hard to believe that most general
contractors have a general lack of knowledge about erosion control problems.
Halvorsen stated what they actually know and what they think they know are two
different things.
Brenner asked if the contractors are going to pay attention to the new
regulations. Halvorsen stated they have paid attention to her.
Crawford stated an example is Frank Proctor on the Neil Robinson site. Mr.
Proctor has been building homes on the lake for many years. Mr. Proctor called him
as soon as Halvorsen visited his site. He was upset. The County worked with him
on his site, and now Mr. Proctor is generally accepting. There is added cost
involved in doing erosion control, but the cost ultimately gets reflected back to the
homebuyer. There may be a transitional position when the contractors bid the job,
but they will figure it out. It doesn't do anything for affordable housing, but the
Council made a conscious decision to not make affordable housing a priority when
conserving the watershed. The learning curve for the contractors is hard, but he
suggested that the County get the program going as fast as possible. He asked if
Halvorsen has worked with the Building Industry Association (BIA). They have a
great educational program. Halvorsen stated she doesn't deal with that portion of
the program. There is an effort to educate people so there won't be problems.
Stroebel stated the BIA is involved in the upcoming workshop.
Halvorsen showed pictures of and described areas that have been in
violation. The law requires soil stabilization over all exposed soils. She educates
homeowners and commercial builders. A counterpart to that is continuous
supervision and enforcement.
Roll stated one action they are requesting is to get guidance from Council on
whether to continue the current position. He proposed that his be an agenda item
at the next work session. If there is a desire to continue on or modify the position,
they need to address it.
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Hoag stated the work that Halvorsen is doing is work that needs to be done.
She asked if Planning and Development Services has staff that should be doing this.
There should be a full -time, permanent person to do this countywide. At the same
time, she was sensitive to adding more full -time employees to the County staff.
Monsen stated the Planning Department doesn't have enforcement folks that can do
this level of enforcement. They have some enforcement folks that cover a lot of
area, but not at this level.
Halvorsen stated there is no way that anyone already on staff can enforce at
the level she is able do.
Hoag stated the level of enforcement needed would decrease as people
become educated. She questioned whether the enforcement person could
eventually enforce throughout the County, specifically for erosion sedimentation
control. Halvorsen stated she could not make that determination.
Dawson asked Roland Middleton if Planning staff could do the enforcement
that Halvorsen is doing. She questioned whether there is an erosion control
problem outside the area of the lake.
Roland Middleton, Land Use Manager, stated the amount of erosion control
that is needed hasn't been there. They haven't had any education, availability of
materials, or taken the time to do it. Erosion control has been an ongoing struggle
since he was in the Engineering Division eleven years ago.
Hoag asked if there is staff to adequately address that. Middleton stated that
depends on the Council's priorities.
Brenner stated enforcement is a top priority. Middleton stated the first part
of enforcement is the educational aspect.
Brenner stated enforcement activities should be able to pay for themselves
from fines. Middleton stated the new overlay zones puts these issues up front.
One has to have an erosion control plan in place prior to inspection. Now,
inspectors have to be erosion control experts.
Brenner stated the cost of any new enforcement officer should pay for itself
through fines and educational fees. Middleton stated Halvorsen's work was to see
the impact they could make out there. A person is going out and is really dedicated
to enforcement. With a staff of three compliance officers, they are already up to
nearly 200 compliance cases. The current staff is complaint- driven. Complaints
take up all of the staff's time. That is different than Halvorsen's position.
Halvorsen's position is to get out there and stir it up.
Hoag stated the County should address the problem up front. There are laws
and ordinances that specify how erosion control will be done. If the County gives
someone a permit, staff should go out and make sure the developer is following the
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regulation. The process should not be complaint- driven. Middleton stated they
process 1,600 to 1,800 permits per year. It is a matter of time.
Hoag suggested building the extra cost into the permit fees. Middleton
stated that would be an increase in fees and staff. The orders from the Council for
the last six years have been to hold the line, with no additional staff, and with a 10
percent loss in revenue from the general fund. Over the past six years, there
revenue has gone down. They have added staff. The Council has provided staff
and ability to serve the public. However, he is sure the direction again this June
will be to cut the budget by 10 percent and to not add any additional staff.
Brenner stated they need to beef up areas they've prioritized.
McShane questioned whether Halvorsen saw compliance issues that weren't
matching the overlay and also general fill- and -grade permits. Halvorsen stated
that was correct.
McShane thanked Middleton for his forthrightness. The County has a
problem. He sympathizes with staff.
(Clerk's Note: Imhof arrived at 11:25 a.m.)
Middleton stated the inspector positions have a high turnover due to low pay.
McShane stated there is a fiscal issue to getting people out and eyeing the
sites. He asked if Middleton thought people have been trying to get away with not
complying. Middleton stated they are not bad people. No one is trying to
consciously do bad work. Some put it at a higher priority than others.
Crawford stated he liked the idea of continued enforcement. He works with
contractors daily. The majority are not trying to get away with anything. They
want straight talk on what to do to comply. When new regulations are in place,
they will challenge them, but there is room to work. Education should be a
component. Fines should be a last resort, after a person has been informed and
educated, and been given a chance to comply. The BIA needs to be involved. The
position of the BIA regarding fees is that they do not mind fee increases as long as
the County demonstrates what the services are that the industry will receive. The
BIA won't have a problem with enforcement. The members of the BIA have to
compete with guys that don't play by the rules. Education is the key. If they need
to fund Halvorsen permanently that was okay, but they must include education.
Hoag asked if the manure inspectors could be used in the off - season.
Middleton stated the Council will see an enforcement ordinance coming forward,
which will consolidate enforcement into one ordinance. It will establish
enforcement procedures. The final enforcement action will be a criminal charge.
Some fines are low enough that it is cheaper to pay a fine instead of complying.
The fine is the ultimate course of action. That is going to change. Soon people will
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do jail time for not complying. They will begin with a correction notice, then two
fines, and then a criminal charge.
Hoag stated the County needs to review its fine structure. However, fines
are not to be used to motivate people to begin with. Middleton stated the County
has to notify the violator of the penalty in the correction notice.
(Clerk's Note: Council took a break at 11 :35 a.m. for ten minutes.)
Procedural Direction to Planning Unit and Decision Maker
Pete Kremen, County Executive, introduced the newest member of the Water
Resources team. Dr. John Sproul was most recently with the NMFS. He is the new
watershed specialist. He worked on the Sumas /Abbottsford aquifer study. He is an
asset to the water team.
Sproul gave his background. The water resource inventory area (WRIA) 1
area is unique to be able to contribute internationally. He looks forward to
coordinating environmental issues. They will address some costs and turn them
into assets.
(Clerk's Note: End of tape one, side B.)
Sproul stated the Water Resources Division is a tremendous team.
Roll stated this is the third in a trio of positions that included the Public
Involvement and Education (PIE) coordinator and the Endangered Species Act
(ESA) coordinator. This is a watershed position. Sproul will bring together the
stake holder issues. He will be an asset to get to the goals of the watershed
planning process.
Brenner asked how many people are in the Water Resources Division.
Kremen stated there are about six people in the division.
Roll stated there are a bunch of people contributing to the WRIA project.
There are a variety of players that are directed according to their areas of
expertise. The Water Resources Division staffs seven people.
Kremen stated that is according to the plan approved by the County Council.
Roll stated it was a long process. The position they had open, which was
filled by Sproul, was a tough position to fill.
Monsen stated there are five steps to follow in the WRIA 1 decision - making
process. Someone comes up with a proposal, which is discussed by the Planning
Unit, who will take action. Then the proposal moves to decision - makers to
formalize and put in place the resources that will ensure the item happens. Then,
there is implementation of the proposal. The County is a caucus in the process, but
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is also more than that. The County has a significant financial responsibility in the
process. There will always be the challenge to mix long -term financial and policy
responsibilities, as well as daily procedural challenges. This does not describe how
any other organization in the process functions. Only the County is on the flow
chart. Once a proposal is put forward to the Planning Unit, the County Council
discusses it and determines the County's position. As the proposal moves toward
formalization, there is another loop in the flow chart that allows the Council to
convert the proposal into an action. Each of the steps evolves from two loops.
There can be a third loop if the Council must budget the item. If the first two loops
are completed, the financial loop is a formality.
Brenner questioned what happens if there are changes during step three, at
the initiating government (IG) step. Monsen stated the County can step back and
go through the loop again for those things that change at the table.
Brenner stated the budget has to be a part of the early process. Monsen
stated that part of his responsibility is to give the Council a hint what the proposal
is leaning towards, so the Council can put it into the context of the bigger picture,
including the budget. A challenge for staff is to determine when the County Council
is comfortable in providing its final decision, compared to simply engaging in the
process. A challenge for staff is to facilitate a discussion with the County Council in
which they get enough direction to move forward without so much reservation that
they can't move forward.
Crawford asked to talk about stage one water rights review in the context of
the model. He questioned what they did and didn't do in terms of communications.
Monsen stated they would have that discussion after the next agenda item. The
Planning Unit didn't exist when they first talked about the Public Utility District
(PUD).
Hoag stated the original flow chart is different than this flow chart. The
previous flow chart stated the IG decision - makers were administrators, and the
decisions they made were about how to administer what the Planning Unit decided.
She questioned whether this flow chart represented the same process. Monsen
stated this is a reference tool for today's discussion. It doesn't supplant what was
presented before. These are procedures and operational steps in this process, not
to be confused with legislative items that come to the legislative bodies. These are
procedural and action - oriented steps in the process.
Hoag stated the new flow chart illustrates that the administrative decision -
makers could change decisions made by the Planning Unit. She asked if step four
was about how to administer the decisions made by the Planning Unit in step two.
Monsen stated that was correct. Step four is to discuss how to act on the decisions
and recommendations that come forward. If the decision - makers made changes to
the Planning Unit decision, none of the process would work.
Hoag agreed that budget, between steps four and five, should be a formality,
but only if it has been addressed in step one. Monsen agreed.
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Brenner questioned whether the arrow from step 2B to step three is as
strong as the arrow from step two to step three. Monsen stated this is an attempt
to explain the process. The chart assumes that everyone agrees. If there isn't
agreement, the process will loop back to an earlier step in the process.
Kremen stated he doesn't sign off on anything, as a decision - maker, until the
County Council is apprised and confirms the action.
Monsen stated the chart only conveys the different routes of discussion that
are possible.
Roll began discussion on the issues before the Council related to ESHB 2514.
These items will be discussed at the next Planning Unit meeting.
Monsen stated they would accomplish what they can in the time remaining.
ESHB 2514 Update
Roll stated item one is the scope of work. The scope of the work is the tree
on which they hang all the definitive scopes of work for instream flows, quantity,
and quality. It is the scope of work developed in a joint effort between the Planning
Unit and an IG technical team. It brought in all stakeholders' input, Revised Code
of Washington (RCW) laws, and requirements of the memorandum of agreement
(MOA). He hoped to approve the scope as it stands at the next Planning Unit
meeting. He questioned whether the Council supports the adoption of the scope of
work.
Brenner asked about the reference to numbers in the document. Roll stated
people need to know how items hooked into their own interests, the MOA, and the
laws. Those numbers reference a statement about a source. People can see the
linkage between each piece of work to see how it expresses personal interests and
laws. Those references are listed in the back of the document in an exhibit that
cites where the information comes from.
Brenner questioned page 15, bullet two, which talks about the
implementation strategy /status and the Public Utility District (PUD). There isn't any
place for changes. There is talk about possibly going out for a request for proposals
(RFP). Roll stated that is going to be defined.
Brenner asked if this is Phase I. Roll stated it is the document that lays the
foundation for doing the technical work.
Brenner stated she didn't see options for those who don't have water rights.
Roll stated that would be defined in the quantity section under the technical scope
of work. The technical teams, Planning Unit, and others will come forward to have
those discussions. Scopes of work change as the process changes. As they acquire
more information, they will have to refine the scope of work.
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McShane suggested adding "affordable" to page 8, line 308, "...safe,
affordable domestic water..."
Brenner agreed.
Roll stated they would add it.
McShane suggested changing language on page 15, the last bullet, on line
711 "...water quality vielatiens exceed ences..."
Hoag questioned the difference. If one exceeds a standard, it is a violation.
McShane stated that wasn't necessarily true. A body of water could have
standards assigned to it depending on its classification. There is a question of
whether the body of water exceeds the standards. There may be a violation of an
individual or area that causes the exceedence.
Roll stated he would pass the suggestion along.
Kremen suggested "noncompliance" instead of exceedence.
McShane agreed. He requested a copy of the United States Geological
Service (USGS) study.
Roll stated there is a website where that information is located.
McShane suggested adding the term "long -term climatic trends." To the
sentence on page 14, beginning on line 660, "Estimate the amount of surface and
ground water available, taking into consideration seasonal long -term climatic trends
and other variations."
Hoag stated exceedence and violation don't match with her experience with
the shellfish. Water quality exceedences sounds like they doing even better with
the water than one would expect because one is exceeding the standards. A
violation of the standards clearly illustrates that the standards have not been met.
She suggested McShane look at that carefully. The law says that they must protect
existing water rights. Yet, when they get into the details of water quantity, such as
estimating the amounts available, it looks as if they may be taking away people's
water rights if they are not being used. The scope of work doesn't say how they
are going to deal with this. They have to be clear about that process. They have to
know how much water is being used, but they also have to measure that against
people's water rights. The scope talks about estimating the amount of water
available to junior users and for further appropriation and for minimum instream
flow. How they get to that information is not clear. There is a piece of information
missing. Roll stated there is a lot of definition that needs to happen. It will initially
be addressed by the scope of work technical team.
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Hoag suggested they clarify that the missing step is about looking at two
processes. One process is how much water is available, using only water that is not
assigned to water rights. The other process would be to look at how much water is
available based on unperfected water rights. Also, she wanted to know what the
collaborative effort model referenced on page 5, lines 181 through 184, will look
like.
Imhof stated that hasn't been defined yet. This is just the scope of work to
define that.
Hoag stated she wanted to know how to get a collaborative decision making
model that will be conducted in a manner that does not violate the government -to-
government principles of the Indian Nation and Indian Tribe in WRIA 1. Roll stated
that is an issue that has been brought forward as something to consider. This
scope of work sets the boundaries of what to consider as they acquire information
for the development of the plan.
Dawson stated the tribe can operate in a closed session and they want to
have their process recognized. They can turn a closed session into an open
session.
Brenner stated it will never happen. This is more of a wish list. Regarding
the water rights, state or federal law is that you lose the water rights if you don't
use the water rights.
Imhof stated they are only quantifying it.
Hoag stated there have been several court battles about that and it is not
clear yet.
Dawson stated that is only for municipalities.
Brenner stated it is for individual water rights.
Hoag stated a person with an exempt well is allowed to draw up to 5,000
gallons.
Brenner stated an exempt well is not a water right.
Hoag stated it is called an exempt because they were not able to get a water
right and are able to draw 5,000 gallons.
Brenner stated one is exempt from the water right, so the process doesn't
affect exempt wells.
Imhof stated the County has nothing to say about the 5,000 exemption. The
state determines that.
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Brenner stated they should specify the water rights issue in the scope of
work, or it will remain the same process.
Hoag asked if the PUD would be contacting the exempt well users to find out
how much they are using. Monsen stated the goal now is to get a macro -view of
the process and to not get into the detail.
Roll stated that information is not part of Phase I.
Monsen stated the PUD will be looking at the average use, not specific uses.
Brenner supported McShane's suggestion about exceedence. She is tired of
certain polluters who keep saying he or she is not in violation because they've been
given an extension. They are exceeding, but they are technically not in violation
because they are working with state or local agencies.
Roll stated this scope of work is the version that went into the Planning Unit
packet. He questioned whether the councilmembers accept it.
Imhof moved to conceptually approve of the scope of work, including the
concerns brought up during this meeting.
Brenner stated the County should make a strong statement that the County
will not have agencies or municipalities or anyone involved in any phase of this
when there is an appearance of fairness issue. This is a general document and that
language belongs in this document. Roll stated he wouldn't recommend it here.
This is a technical scope of work. That issue is a policy issue that will be worked
out by the individual governments and the individuals in the Planning Unit.
(Clerk's Note: End of tape two, side A.)
Monsen stated the Council could pass some form of a resolution with that
language. They could ask others to adopt a similar resolution.
Kremen stated if they go down that road, no entity will be able to do
anything because everyone has a vested interested.
Brenner stated that is true in some cases. Kremen stated everyone involved
has a special interest.
Hoag asked how the County would have a conflict of interest. The problem
with the PUD was that they are a purveyor of water. Kremen stated that
sometimes the County interest is different than the tribes'.
Hoag sated that doesn't have to do with water. The County is not a water
purveyor. If they have the City of Bellingham or the PUD do the analysis, it is not
kosher because they are water purveyors. The County isn't.
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Kremen stated they are supposed to be addressing generalities and need to
get away from the PUD issue.
Brenner stated she is talking about generalities. There may be other areas in
which they could hire a consultant that would have a vested interest in something.
They may be the most qualified consultant, but they wouldn't hire the consultant
because of a vested interest.
Imhof stated this doesn't address the motion on the floor. This needs to be
in a resolution so that other entities can adopt similar language.
Hoag asked how the County would have a conflict. Kremen stated the
County's interests are not always with the tribes.
Crawford suggested that they specify the language regarding historic climate
changes, as recommended by Councilmember McShane. He wouldn't want anyone
to be speculative in deciding water rights.
McShane stated he would go beyond historical information. Sometimes they
make assumptions about what the weather is like. They may find evidence that,
historically, the weather has changed dramatically.
Kremen questioned how far back historically they would go.
McShane stated it is based on best available science.
Hoag asked if they are approving a model they haven't seen if they approve
the plans. Monsen stated they are not.
Motion to approve with the notations carried 6 -0 with Nelson absent.
Roll stated the next two items will be taken together. This information is in
attachment three. Roll stated the items do two things. Of the ways they define the
specific pods of work within the WRIA planning process is through the creation of
technical teams. The technical teams are stakeholders from the caucuses and the
IG who have expertise in the issue. The MOA defined that the teams would be
established. Definitions of the teams need to be altered so the Planning Unit
members were not approved by any of the IG. A lot of that had to occur prior to
development of the Planning Unit. The first item is the team formation. It clarifies
the roles of the IG and how they view technical teams. This is the resolution to
define it better than it was originally in the MOA. It says they recognize they are
inclusive of Planning Unit members and others. It also recognizes that this will
work in addition to existing staff of the Planning Unit WRIA staff group. Those are
points of clarification so the IG did not control who sat on the teams. They have
members of their own governments that they can bring forward to be on the teams.
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Brenner asked how they create technical teams without a budget. They can't
get a budget without approval of the IG. It seems that it would have to come
before the IG for approval.
Imhof stated this doesn't create the teams, it only defines the teams. This
isn't a budget item.
Roll stated the next agenda item will provide an example of establishing a
technical team. They are seeking of approval to go forward with the proposals to
the decision - makers.
Brenner stated she was concerned that they would be committing to funding,
according to the definition.
Imhof stated funding would be committed when the specific teams are
formed.
Kremen stated this doesn't commit the Council to fund anything.
Hoag questioned what the original MOA set up in terms of technical teams.
She believed it was supposed to include those with expertise to provide advice to
the Planning Unit. She understood that the technical team was to be approved by
the Council. Roll stated the definition of who can be on it is in the briefing paper.
In terms of what a technical team means today, it is probably different than what it
meant originally, before the Planning Unit evolved.
(Clerk's Note: Crawford left at 12:50 p.m.)
Roll stated that as it is defined and expanded to include Planning Unit
members that had expertise, they could be brought into a process that wasn't
directed by an IG. They could come into the technical group and do that body of
work. The original agreement alluded to the IG approving membership /technical
teams. This is an amendment to say that the IGs have to realize there is work that
needs people with technical expertise. The original MOA gave a list of items that
the IG was to approve.
Hoag asked if the MOA specified either the IG or the Council to approve the
teams. Monsen stated there isn't any distinction.
Hoag stated the proposed definition of a technical team needs to be further
defined. It only says that a person, who is beyond staff expenses and the
involvement of caucus members, automatically qualifies to be on the technical
team. A technical team consists of members with expertise that are brought
together to focus on a particular issue. This definition just refers to the IG
commitment of funds. The technical team involves a commitment of funds but is
not solely about that. It should be further defined as a team that is set up to
provide technical input on particular issues.
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Monsen stated this creates teams that will narrow the focus to assist the
overall process. Of the various interests around the Planning Unit table, those
interests want to make sure they engage at a technical level and are not excluded.
Hoag asked for additional language that the technical teams be set up to
establish specific information and technical input.
Brenner asked to change the wording or add language that makes it clear the
County Council will commit funding only if it is set up beforehand.
Hoag stated that is already defined in the original MOA.
Hoag read the sentence in the last paragraph, "Technical Teams will be open
to qualified caucus members." She questioned whether they are only open to
caucus members. Monsen stated that language reinforces the idea that they don't
want the IG to hire scientists only, but want to engage individual caucuses.
Hoag suggested adding language, "Technical Teams will also be open to
qualified caucus members."
Imhof stated they already are involved. A technical team is a team that
involves the IG commitment to funds beyond staff salary expenses, which are the
people that are working there, and /or the involvement of caucus members. There
will be staff members and caucus members. The technical team is anyone else that
is brought in for his or her expertise.
Hoag stated the next sentence could be misinterpreted to mean that one has
to be a caucus member to be on the technical team. She asked that the next to
last sentence be amended, "...qualified caucus members and others." They also
need to further define technical teams.
McShane moved approval with the concerns mentioned.
Brenner moved to amend so it is clear that the IG does approve the creation,
through the budget, of any and all technical teams.
Hoag stated that suggestion doesn't belong there. It's already been covered
in other documents. All this talks about is setting up a technical team, which is
covered under ESHB 2514. The funding comes to the Council automatically.
Brenner stated this adds a new definition and reference roles and operating
procedures.
Motion to amend failed 1 -4 with Brenner in favor and Crawford and Nelson
absent.
Dawson moved to add language to the next to last sentence, "...qualified
caucus members and others."
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Motion to passed 4 -1 with Brenner opposed.
(Clerk's Note: Imhof left at 1:00 p.m.)
Roll stated the next action item is the database technical team.
McShane moved approval.
Motion carried 4 -0 with Nelson, Crawford, and Imhof absent.
Roll stated the next item is the update on the assessment phase and
requested that they use the handout for the update on the assessment phase.
Assessment is where they collect the data for the watershed plan. Data will be
collected for quantity, quality, instream flows, and habitat. There is a proposal.
Brenner stated she wanted to discuss this item later.
McShane stated he would schedule this for the Natural Resources Committee.
He would make sure there is time in each committee for these added items from
the work sessions. Councilmembers need to recognize that they are going to be
giving guidance and must be involved. They need to be able to make decisions.
Brenner stated she needed to have information at least 24 hours prior to a
meeting, so she can read and digest it.
Monsen stated he believed the direction was that staff could work out the
details with the Planning Unit and use discretion to determine whether a change is a
material change. Before the Planning Unit meeting, they don't have an opportunity
to bring changes back to the Council. If an item goes to the Planning Unit, the staff
would send a copy of the final form that is going to the decision - makers. Unless
staff hears from the Council, they don't have to schedule a meeting.
Hoag stated she wanted to be copied on the final decision if it is not a big
change, regarding the definition of the technical team. If it is a big change, she
wanted a meeting scheduled.
Dawson stated they could always reverse a decision.
Hoag stated it is late to change their minds once the decision goes to the
administrative decision - makers, who've decided on implementation.
Roll stated everyone is going back and talking to his or her caucuses. They
are trying to make sure that when the Planning Unit agenda comes up, they all
have the direction from their individual groups so they can walk in and vote one
way or another on a particular issue. It is very critical. He is concerned about
everyone not liking the County because he has to abstain because he has not
gotten direction, especially when the rest of the group wants to carry the item
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forward. It can kill the process. It is timely to get these through the Council so he
can represent the Council's direction.
ADJOURN
The meeting adjourned at 1:10 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on April 18, 2000.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Marlene Dawson, Council Chair
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