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WHATCOM COUNTY COUNCIL
Natural Resources Committee
March 9, 1999
The meeting was called to order at 10:00 a.m. by Committee Chair Connie Hoag in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present: Absent:
Kathy Sutter
Tom Brown
COMMITTEE DISCUSSION
STATUS REPORT FROM WHATCOM COUNTY PUBLIC WORKS DIRECTOR
JEFF MONSEN REGARDING SALMON RECOVERY EFFORTS (AB99 -055)
Jeff Monsen, Public Works Director, stated that there will be several presenters. He
outlined the update that would be given, which would include information regarding the various
water bills in the legislature, National Marine Fisheries Service (NMFS), and Sections 7, 10, and
4(d) rules. They preferred to have a discussion on setting meander limits and the philosophical
policy. That activity is the closest thing to on- the - ground salmon recovery.
Dan Gibson stated that there is the ability to track legislative actions and proposals on the
Internet. The governor's salmon strategy was encapsulated in SB5289 & HB1314.
Hoag stated that some Council members have the Internet available, but others don't.
Gibson continued to state that, while HB 1314 has not moved out of the House
committee, SB 5289 has moved out in substitute form. They have abandoned efforts to change
the ground water exemption. The 5,000 gallon exemption has been abandoned. SB 5289 reflects
the partisan split. It passed out of the Environmental Quality Committee on a 4 -3 vote along
party lines. It is now in Ways and Means. It is now Substitute Senate Bill (SSB) 5289. The well
portion of the bill was the most substantive of changes.
Dawson requested clarification about whether the water bill, in terms of the well, was still
alive. Gibson stated that portion of SB 5289 was the most significant change from the original to
the substitute. The rest of it continues to move forward through the Senate. The fines have been
modified.
Dawson questioned whether the withdrawal of the groundwater was still allowed.
Gibson stated that it was.
Gibson stated that the House is where the real action is. In the House, SHB2185
combines HB2185 and HB2186. It deals with inchoate water rights, which are currently
`certificated,' but not yet used. There are conditions on regaining the full right to use those
rights. They have been modified substantially.
Sutter stated that affects the City of Bel Iingham's rights as well.
Natural Resources Committee, 3/9/99, Page 1
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Gibson stated that was correct. SHB 2185, HB 2187, and HB 2189 have also moved out
of committee. He suggested that they represent a significant chance of being enacted in a similar
fashion. SHB 2185 is now in consideration at House Rules Committee. They should keep an
eye on SHB 5289. The House is going to be more modest in what it passes.
Hoag questioned whether SSB 5289 will become another bill in the House. Gibson
stated that eventually SSB 5289 will come out of the Ways and Means Committee and out of the
Senate, then go to the House. It will then get bogged down and change considerably.
Hoag questioned which bill they are they supposed to follow. Gibson stated that they
should track both the House and the Senate bills, including House Bills 2185, 2187, and 2189.
HB 1314 and HB 2134 did not move out of committee and the deadline was the March 3rd. HB
1314 and HB 2184 match SSB 5289.
Monsen stated that they would provide a printed summary of Gibson's comments. Later
this week, he will contact Olympia to find the unofficial status of some of these items.
Hoag questioned whether Monsen would be checking with Council in terms of policy
direction. Monsen said he will contact Council if he needs guidance.
Monsen stated that, regarding the Endangered Species Act (ESA) and the Chinook
listing, he doesn't know when the date of the listing will occur. The date keeps slipping back.
NMFS is attempting to deal with 4(d) issues, the basic rules that they must live within. They are
not required to issue those until the end of the 1998 period, after the listing occurs. He is going
to confirm whether they are still in consultation with some of the major State players. NMFS is
trying to get organized so that when the listing occurs, they have some sense of ability to respond
and do the required steps. They are not fully functional to do the required steps, such as issuing
4(d) rules, working on a negotiated Habitat Conservation Plan, and other matters. NMFS is now
saying that they are going to downplay the significance of 4(d) rules because they cannot work
through all of the issues. They will promote development of Habitat Conservation Plans and
permitting federal consultations, which is a part of section 7. Regarding permitted activity in
section 7 and section 10, the County is in contact with the State Department of Transportation
(DOT) regarding road maintenance and construction. He will bring that information to the
Council in the future.
Sutter questioned whether the road maintenance and construction includes culvert work.
Monsen stated that routine maintenance is included. Fish passage barriers are a different matter.
The State is working with direct experience of endangered species for the variety of species
listed over the last number of years as far as how they dealt with the issues programmatically.
They have dealt well with NMFS. DOT stated that salmon is just another species on the list, and
not the end of the world. Business will continue as usual.
Hoag questioned Monsen about who he met with the previous day. Monsen stated that,
locally, a significant player is the City of Bellingham and their Middle Fork diversion. The
meeting the previous day was with NMFS, US Fish and Wildlife, the City of Bellingham, and
some County people. There was some discussion of how they complete some of these tasks.
Bellingham will provide leadership in pulling pieces together because they are required to
address some of the issues specifically. Elisabeth Babcock, the Puget Sound Environmentally
Significant Unit (ESU) point person, and someone named Steve who represented NMFS. Things
are opening up because of the Lummi water issues and Bellingham ESA planning. It would be
worthwhile to have a work session with the Council on those items. They will schedule a
Natural Resources Committee, 3/9/99, Page 2
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Committee of the Whole meeting to discuss an update on the Lummi water negotiations in
executive session. Then they will go into more in detail in these matters.
Hoag stated that the Council has tried to reach NMFS for a presentation, but they won't
return phone calls. The Tri- Counties got all major players and elected officials together to talk
about the ESA listing, then created an Executive Committee. She would like to do this in
Whatcom County to deal with the broad issues. She suggested putting something together to do
planning and organizing.
Monsen stated that next week's town hall meeting is intended to kick off that process,
now that the County knows what they can do. Salmon recovery under ESHB 2496 will bring
entities together. The Council in the future will need to formalize a committee.
Hoag stated that there isn't any established plan or policy that people can use to make
decisions. Otherwise people will just be flailing around. Monsen stated that the meetings over
the next couple of months will be for laying out alternatives and creating a decision making
process from the elected officials from a policy standpoint. Now the County has a clear
understanding.
Hoag questioned whether all the key players are invited to the town hall meeting.
Monsen stated that they are.
Sutter asked for more details on appointing a team. Monsen stated that there will be two
committees. One will be formed by the State Conservation Commission, which is a technical
advisory group. That group has been formed. The information gathered by the technical
advisory group needs to move forward in a form that brings in non - technical issues to evaluate
the impacts. Presumably, the Council will be presented a list of candidates under the ESHB
2496 process.
Sutter questioned whether the Council will be making the appointments. Monsen stated
that they will. There is required representation in certain areas.
Sutter questioned how this ties in with the Lummi agreement about fish habitat and land
use planning units. Monsen stated that part of that work is the tribal technical side of the salmon
recovery effort. They are making some progress with the co- managers in putting together a
technical site and recovery plan. Seating the citizen committee will be the best step in bringing
forward the human side. The County agreed with the Tribe that each side will work on their
specialty, but nothing can occur until the two sides review and agree. Structurally it is under
ESHB 2496. Practically, it looks like it is, but not literally.
Monsen stated that they are trying to maintain contact with the tri- county effort to learn
what they have learned. It has been a challenge.
Hoag suggested he talk with Dick Dorsett. Monsen stated that he talked to
representatives from Snohomish, King, and Pierce counties. The tri- county effort is there in
symbol only. They are not doing anything other than dialog.
Hoag questioned whether the ESHB 2496 citizen committee is the technical advisory
committee. Monsen stated that it is not. There are two committees. One is the technical
advisory group, which is specifically related to science -based evaluation and limiting factor
establishment. That was established by the State Conservation Commission. The County's role
is to establish a citizen advisory committee.
Natural Resources Committee, 3/9/99, Page 3
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Brown questioned whether that was the Nooksack Technical Advisory Group (NTAG).
Monsen stated that was the Conservation Commission side of this.
Brown questioned who was involved in that group.
Steve Seymour, Whatcom County Fish Biologist, stated that the technical advisory
committee has been formed and had two meetings. Representation includes the Conservation
District Lead Mary Wilcoz, the Tribes, himself for Whatcom County, State Department of
Fisheries, and the State Department of Ecology (DOE). They are the folks that have the local
knowledge. The task is to come up with habitat limiting factors for the Nooksack Basin. Some
work has been done. It is a data gathering exercise. The product is a set of GIS maps to track
projects. The challenge is to not focus on process, but come up with a product.
Sutter questioned whether they will be tying in with the Nooksack Recovery Team
(NRT) and their database of projects. Seymour stated that is another piece. There are a lot of
entities going around and there has been some confusion. NRT has been suggested as a base to
build a regional committee. Their database of projects is not complete.
Sutter stated that it is not complete, but some work has been done and they could use it so
as not to duplicate efforts. Seymour stated that most of the exercise has been looking at what has
been done. A database exists that was done by the watershed initiative process two or three
years ago. There is new data that has since been accumulated. The Commission's vision is to
have all the information in one place. They need to go through the hoops to get in line for the
next series of funding. The County is the lead entity and needs to establish the regional
committee, then there will be opportunities for funding to support the lead entity and regional
committee development. The funding cycle will be in late spring. They don't have to have
limiting habitat factors done to apply for money, but they need to have a good sense of moving
ahead.
Monsen stated that the technical advisory group creates a foundation for the citizen
committee. The citizen committee creates and prioritizes project lists.
Sutter questioned who is working on policy. Monsen stated that it is either with the
County Council or potentially with the initiating governments.
Sutter questioned how it would tie the Council into the processes. Seymour stated that
the regional committee was visioned as project driven. It is an interesting concept of how policy
would enter into that.
Monsen stated that his vision is that there is a clear opportunity to establish priorities
through policy, for which staff would work with.
Sutter stated a concern that there is a lot of work and discussion that the Council doesn't
have the benefit of hearing when trying to make policy. She questioned whether the technical
advisory committee and citizen committee meetings are going to be open meetings. Monsen
stated that the technical group hasn't been, but the citizen committee should be.
Seymour stated that the goal of the technical group is to look only at the biology and
what has to happen to protect that. A memorandum of understanding (MOU) process would
allow policy to be set at that level.
Natural Resources Committee, 3/9/99, Page 4
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Sutter stated that the Council needs to understand some of the technical aspects to
understand why the policy may be necessary or why it is needed. That information is useful
when trying to make a decision on the best policy.
Seymour stated that there is so much that plays into these things. It is difficult for
Council to make a decision.
Hoag stated that she had a concern about the limiting factors analysis. She understood
that the limiting factors analysis is going to be driving everything else, because what they
determine is holding back the species is what will drive policies on land use, etc. The Council
expressed a concern about more than just habitat, but also about harvest, hatcheries, and
predation. Seymour stated that the technical advisory group only looks at habitat. That is their
function. Habitat restoration projects are the driver of ESHB 2496. The Chinook recovery
portion is to have a Chinook recovery plan. Federal money would be available to kick off that
plan. The Chinook recovery plan will encompass all of those aspects. There is a hatchery,
harvest, habitat, and land use element.
Hoag questioned whether a different committee is to be formed to address limiting
factors analysis for those elements. Seymour stated it would be the co- managers who deal with
those elements. That is the way it is set up by the treaty. The County's interaction is on the land
use piece. The Tribe deals with the fish piece. Chinook recovery has to do with habitat and
other factors.
Hoag stated her concern about other factors and questioned what assurance the County
has that items such as harvest and hatcheries are going to be looked at. Seymour stated it is
traditionally how it is dealt with. Only recently has harvest and hatcheries been an issue. It is a
critical piece and a plan is going to have to be developed.
Hoag stated that, in coming up with a recovery plan, the County needs to ensure that all
factors are looked at. She believed that the limiting factors analysis would look at all of the
elements. Seymour stated that the technical advisory group's limiting factors analysis is only
looking at habitat.
Sutter questioned whether another technical team is needed to look at the other aspects of
limited factors. Seymour stated that there is already another technical team called NEAT,
Nooksack Endangered Species Action Team, formed under the MOU.
Monsen stated that historically and legally the County has had a limited role in hatchery
issues. Until the County signed the MOU with the Tribes, the County didn't have access to
influence hatchery issues. The County now does under the MOU, because the Tribes have
promised that they would not take action without involving the County in some dialogue. At this
point, they have not brought forward something that they can specifically discuss.
Hoag asked how the dialogue will occur. Monsen stated that they looked to the
formation of the citizen committee under ESHB 2496 to provide the land use linkage and then,
through that committee and the County, influence that process. Administration is putting that
together and will be completed in the next month or two.
Sutter wants to see an organizational chart. Under the MOU, the County had jurisdiction
over land use and the tribe had jurisdiction over fisheries, not habitat. Monsen stated that the
product they put together in draft form will be approved with the County's input.
Natural Resources Committee, 3/9/99, Page 5
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Sutter stated that the MOU was specific that the County had jurisdiction in land use
matters and the Tribes had jurisdiction over fisheries. Habitat falls under land use, which is the
County's responsibility.
Seymour stated that the Tribes had some claim to habitat restoration.
Monsen stated that both sides agree that the two must go hand -in -hand before action is
taken.
Hoag questioned the process for the County to look into the land use issues. Seymour
stated that part will be dealt with under the ESA funding requests. The Critical Areas Ordinance
(CAO) and zoning need to be reviewed in light of impacts to ESA. They propose to hire a
consultant to take that look.
Monsen stated that he proposed to utilize the citizen committee to perform some of that
function so that there isn't another committee that would be created.
Seymour stated that the NEAT technical advisory team provides support to the MOU
policy makers.
Sutter stated it is too confusing. They need to sort out the lines of authority,
communication, and responsibility.
Hoag stated a concern about lack of policy direction. The County is supposed to give
policy direction, but Council never gets asked or told anything. Monsen stated that the majority
of issues are within administrative control to comment, but not to act. NMFS and the State drive
the majority of policy issues. Few of the actual policy directions are controlled at the local level.
Sutter stated that local policy will need to be developed, particularly to land use issues.
She was concerned that steps have not been taken.
(Clerk's Note: End of tape one, side A.)
Brenner asked for examples of efforts that the County has no control over. Monsen
stated that one example is that the water bill going through the legislature is in a form that
requires the County to take specific action and removes the County's discretion. The County has
the ability to influence the proposal through the legislative process, but once adopted, the County
can't change the directive.
Brenner's concern was that the County is not getting information on when and how to
influence the State.
Sutter stated Brenner should refer to Gibson's comments.
Monsen stated that he would work with the Council to set a date for a work session
regarding Sections 10 and 4(d).
Stutter asked for concurrence from the committee to request an organizational structure.
The committee concurred.
Natural Resources Committee, 3/9/99, Page 6
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Monsen asked for concurrence from the committee to discuss the status of federal money,
and then discuss meander limits along the Nooksack River.
The committee concurred.
Seymour stated that the County and Tribe submitted projects to the Governor's Salmon
Team for funding. They are two weeks away from having approval to spend money. The State
has a contract with the federal government for the money. They are in the process of negotiating
a contract between the State and local County entities. An opinion on the policy issue on
enforcement is that, if it is so important, why hasn't the State funded it.
Brown questioned whether he was referring to the information on Council packet page 5.
Hoag stated that last time the Council heard testimony, there was enough funding to take
care of projects through #5. Seymour stated that they just submitted another grant application to
Centennial Clean Water fund. Some of the projects will be funded over the next year.
Monsen stated that the supplemental budget in April will recognize federal money
supplemented with local funds to move down the list.
Sutter questioned how the County gets information on available grants. Seymour stated
that there is a network between the Conservation District, the Nooksack Salmon Enhancement
Association, and the County.
Hoag questioned whether the project list was presented to the Council. Monsen stated
that it was brought forward as an early discussion and again in the Water Resource Plan. He
believed he had the Council support to continue in that direction. The Council can change
priorities. The County is only a pass - through agency on some of the projects.
Hoag stated that the Council was never asked whether the projects meet the Council's
approval. She questioned priority #7 regarding off - channel habitat and a dike removal. It is not
specific about the particular dike. Seymour stated that it is near Potter Road off of Highway 9
south. It is on the property of Michael Hill, who is a member of the flood advisory sub-
committee in the area. This program is a spin -off of that. It is on his property. They would take
the dike down and open up some of the flood plain.
Hoag questioned whether the water would only flood his property. Seymour stated that
he didn't know. There are land acquisition proposals for that area. Some properties could be
acquired by the Land Trust. The projects are not only specific projects, but they are also
important categories in the picture of salmon recovery. They tried to set the list up to reflect on
the categories and process. Fish passage is missing.
Hoag stated that the Tribes can communicate their concerns, but the Council can't
communicate as well. Seymour agreed.
Brown stated that they hold veto power of the process. Seymour agreed that, in essence,
they do. They've been striving to build the relationship rather than just tearing it apart.
Sutter stated that the list was for the federal funding. She questioned whether there was
another list for the State. Monsen stated that the list was a compilation of a variety of projects in
the context of available money from State and federal governments. The projects on the current
list of 10 were the highest priorities because they were close to being able to move ahead. The
Natural Resources Committee, 3/9/99, Page 7
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re- prioritized list will be a task of the citizen committee. They will set priorities based on
Council policy.
Brenner questioned whether there is any discussion about doing scalping in the river,
because there are projects to reduce sediment. Seymour stated that discussion is under meander
limits.
Brown questioned whether the Tribes will be enforcing the river harvest and what is
going on with adjoining property owners. Seymour stated no, it will be an interagency team to
work jointly with The Department of Fisheries, the Lummi Tribe, and the Nooksack Tribe. They
would work jointly to patrol the entire river and Bellingham Bay, specifically looking for illegal
harvest and poaching and certain violations. In the past, the enforcement has looked at other
species. There have been reports of illegal harvesting.
Brown questioned whether the reservation will be a part of this. Seymour stated that it
would.
Brown asked about land acquisition, the North Fork Nursery, in the Boulder Creek area.
Seymour stated that property was sold to Brian Knutsen.
Brown stated that it is one of the few places where people have access to the river.
Across from there is the area that has been mentioned as having streams, ponds, and old- growth
spruce. Seymour stated that he talked with the Land Trust. Boulder Creek is a spawning area on
the east side of the bridge. There is also a spring source downstream of the bridge. It is an area
that needs to have different management.
Hoag questioned whether the chance to purchase it is gone. Seymour stated that it is, but
the Land Trust is active in the upper valley. They are prioritizing different pieces. This property
was a placeholder.
Brenner questioned whether the enforcement purpose is to document or issue citations.
Seymour stated that they will make arrests and remove nets. The Nooksack Tribe has a
regulation that allows unattended nets. It will give everyone a better handle on what is going on.
There is no documentation that it is a limiting factor.
Monsen stated that information may lead to an amendment to Nooksack Tribe
regulations.
Dawson stated that DOE seems to be making changes to the Shoreline Master Plan. She
questioned whether the rules are approved by the State legislature or DOE just modifies the
program. She questioned who has regulation over what DOE does with the Shoreline Master
Plan.
Michael Knapp, Planning and Development Services Director, stated that he will find
out.
Gibson stated that, typically, the rule making authority is granted to the agency by the
legislature. ESHB 5289 addressed rule- making authority for shorelines. Typically, authority is
the delegated to the agency by the legislature. If there are concerns about the rules, one should
be there to comment prior to adoption.
Natural Resources Committee, 3/9/99, Page 8
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Hoag asked about nets in the river. Seymour stated that the season is closed now.
Unattended nets are illegal. When the season is open for Fall Chinook, in July, then the Spring
Chinook should be farther up above. They show up at the North Fork hatchery in late June or
July.
Brown questioned whether the only commercial fisheries are the Tribal fisheries.
Seymour stated that it was in the river. The bay fishing opens for fall run hatchery Chinook in
August or July.
Monsen stated that the meander limit issue leads the County to look at a variety of issues
that have been brought before the Council a number of times. Establishing meander limits
brings policy matters together. From a regulatory standpoint, they will set policy parameters
under which the County is capable to receive permits to work. The reason this was before the
Council was the ability to perform work, which means the County must obtain permits. From a
policy standpoint, policy must deal with a broad spectrum.
Paula Cooper, Public Works Engineering Division Special Projects Manager, stated that
this was started from the attempt to get permits for bank protection. In implementing this, there
has been a different focus.
Seymour discussed the natural processes they are trying to achieve when establishing
meander limits. The reason for meander limits is the natural processes for meandering, the
floods, and the process of the river to move around. The river, over time, meanders and takes
away wood. The wood goes into the river, stays there, and creates habitat value. It also
abandons oxbows, which become the important off - channel habitat for a variety of fish species.
When the County armors the banks, they don't allow the natural process to occur anymore. They
are losing habitat. The challenge for the County and policy process is how to recover and protect
the natural process, while still maintaining a strong agricultural community. Policy issues
include when to repair the river banks and when to remove or install dikes.
Cooper stated that maps show the historic channel from 1950 through 1998. They also
show existing infrastructure, topography and other features. They have aerials that show the
actual meander and land uses. Public Works staff drew lines on the map. Item #2 of handout
identified constrained and unconstrained areas. They identified opportunities to enhance habitat.
That may be in areas where there is not an active use of the land. In areas where the land is
being actively used, they could connect off - channel habitat features that would be behind the
meander limits. Staff also tried to minimize the impacts to existing land uses and public
infrastructure. In doing that, they determined a set of lines. One is the `inner' or interim
meander limit line. The other is the `outer' or long -term meander line. Staff also attempted to
maximize the use of existing flood control structure. They also tried to provide smooth hydraulic
transitions. The maps represent the attempt through item #2. She is currently working with a
consultant who will conduct a geographical analysis of the history of meander limits.
Hoag asked for the reason of interim and then permanent limits. Cooper stated that they
try to minimize the impact of the limits to the landowners. They do not want to interrupt the
activities being performed. They also have to question whether this is the best use of public
funds to protect the river.
Hoag questioned whether the river would not be protected if there is a breach during the
interim timeframe. Cooper stated that they will come forward with recommendations as to what
the lines mean. Item #4 develops policy on what the limits mean. They will look at acreage that
will be impacted and the impact to property owners. They will try to estimate the costs in the
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future and will have to develop a funding strategy. They are working with the Flood Advisory
Committee to look at the policy issues. Maps indicate a line that shows the ultimate bandwidth
of where the river has been from 1950 through 1998.
(Clerk's Note: The committee gathered around to view maps and held discussion that
was only partially recorded.)
Seymour stated that building a dike would pull the river into a high clay bank. The river
is very restrictive in that section. It is one dike that should not be there.
Cooper stated that they tried to open that up in places.
Monsen stated that, because the land remains productive, they could influence the river
away from an eroding bank. From a longer -term policy standpoint, it may not be the `line in the
sand' that it must be stopped. It is a level of expenditure and effort. They would rather it stay
where it is, but they would not put a hard wall in place to stop it.
Marian Beddill, 3600 Seeley, Bellingham, stated that she studied this area extensively
during the 1990 -1991 event, which broke through a dike, went through farmland, made a loop
through the Sanderson property, and re- entered the natural channel downstream.
Cooper stated that the lines on the map were perhaps boundaries between more County -
participating, fish- friendly solutions that would enhance habitat. In the meantime, they could
work on acquisition issues, which is another policy issue.
Brown commented that he really liked what they saw in Abbottsford, B.C., which was a
hard -line in the back, and a softer overflow diking system in the front, with the fish habitat built
in behind it.
Cooper stated that may be more appropriate in the lower system. In reach four, there is
so much recent activity that they tried to give more room to mitigate lost opportunities in the
lower river.
Hoag questioned what Public Works is requesting from the Natural Resources
Committee. Cooper stated that she just wanted to bring the committee members up -to -date on
where they are. They are still working with the Flood Advisory Committee. When they get to
the point when they have some recommendations, then they will come back.
Monsen stated that, regarding the notion of a soft and hard line, in some locations the line
will be the same because of where the river may be. The policy issues that the advisory
committee will struggle with would be the public interest between the two lines, including
allowing and preventing activity.
Seymour stated that, by letting the river wash through, it doesn't do the fish any good. If
the land were available for acquisition in the next 50 years, then maybe the land should be re-
vegetated now. In 50 -100 years, when the river wants that land, there will then be some good
material there that builds fish habitat. That is the point. If the river comes through now, it is just
soil.
Natural Resources Committee, 3/9/99, Page 10
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ADJOURN
The meeting adjourned at 11:28 a.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown- Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Connie Hoag, Committee Chair
Natural Resources Committee, 3/9/99, Page 11