HomeMy WebLinkAboutNatural Resources October 26 19992
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
October 26, 1999
The meeting was called to order at 9:30 a.m. by Committee Chair Connie
Hoag in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Kathy Sutter
Tom Brown
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL
1. ORDINANCE AUTHORIZING THE CREATION OF A WHATCOM
COUNTY CONSERVANCY BOARD AND ESTABLISHING WHATCOM
COUNTY CODE 2.23 (AB99 -389)
Sutter asked Jim Bucknell from the state Department of Ecology, DOE, to
give an explanation of some of the terminology related to this. She questioned
what a water right, water permit, and water certificate are and how they relate
to water transfers.
Jim Bucknell, state Department of Ecology (DOE), described the basic
process that a water right goes through. A person makes an application for a
water right to the DOE, who does a field exam and other research. If the DOE
believes that a water right should be issued, it must meet four tests. It needs to
be a beneficial use as defined in the law. There needs to be water available,
without impairing any existing water right that is already in place, and it needs
to not conflict with the public interest. Those are the four tests for a water
right.
Once the DOE decides to issue a permit, the permit is permission for the
person to develop their project and start putting the water to beneficial use.
Generically, that is often referred to as having a water right. The terms 'water
right permit' and 'water right certificate' are mixed. They are both approval
from the state to use water. A permit is an intermediate step. The person has
the authority to start using the water, install pipes, drill a well, begin farming, or
begin whatever water use that the person is doing. When the system is in and
the farm is operating, the person files a proof of appropriation form with DOE.
At that time, the DOE may or may not do a field investigation. The water right
certificate is the last stage, and it is attached to the land. The only other
permutation is that if there is adjudication in court of all of the water rights in a
basin, the court may issue an 'adjudicated certificate of a water right,' which
may be the same thing. It only indicates that the court has reviewed the water
right. Any potential cloud to the water right is removed at that point.
Brown asked about the permit to establish everything. He questioned
whether the water right could be lost if the property is sold before a certificate is
issued. Bucknell stated a pending application or permit can be assigned to the
new owner. They can be severed. If a person sells a portion of a parcel, he or
she can keep the water right for the remaining portion of the parcel that is not
Natural Resources Committee, 10/26/99, Page 1
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sold. The application and permit needs to be assigned with the sale if they are
going with the sale.
Sutter stated that until there is a certificate issued, there is no water right
tied to the land. Bucknell stated that if a permit is issued, there is a type of
right, but there needs to be the extra step of the assignment form.
Nelson asked if all water rights are retained by the state, or retained by
the federal government and passed on to the state. Johnston stated the state
has authority to issue water rights for waters under state jurisdiction. There are
federally reserved rights held in trust by the federal government for reservation
land or federal land.
Nelson asked about the right an individual retains on a water right. He
questioned whether the individual retains the quantity. Bucknell stated a person
with a water right permit or certificate from the state has permission to use the
water as described in the document. They have that right and it can't be
withdrawn unless there is five or more documented years of non -use. It is
called relinquishment and can be voluntary or involuntary.
Nelson asked how that is different than exempt wells. Bucknell stated
any surface water use requires a right. Groundwater uses that are under 5,000
gallons per day and irrigate an area no larger than 1/2 acre lawn and non-
commercial garden are exempt from getting a permit and the permit process.
They are not immune from other water resource laws. If there were a basin -
wide adjudication, all users would come before the court and state why they
think they have a water right. For exempt wells, they would be asked to bring
in things such as well receipts. A judge would look at the water quantity used,
not to exceed the limit, and would issue an adjudicated certificate of water right
for that quantity of water, with a priority date of whatever date it was first put
to beneficial use. They do establish a water right with an exempt well. It may
not be for the amount in the limits, but only for the amount used.
Sutter asked about water claim. Bucknell stated the surface water code
was adopted in 1917 and the groundwater code was adopted from 1945. After
1917, people should have applied for a water right from the state. There were
people who had surface water uses before 1917 that were valid. The people
didn't have to get a permit because they were grandfathered in. Some of those
are still valid. The problem is there was no record of that with the State, so the
legislature, in the 1960's and 1970's, opened a claims registration period for
people to file their claims. It is only a statement from people with old claims
prior to 1917. The only time it goes to court is if there is a basin -wide
adjudication. That is when all the water users would come before a judge and
have to show the judge why they think they have water rights and why the
judge should grant an adjudicated certificate water right. The same thing
applies to groundwater, only the date was 1945. For any well that existed
before 1945, people had the opportunity to file a claim that they have an
existing well. That is on record waiting for adjudication. The DOE doesn't have
the authority to affirm or deny a claim. When they look at a water right
application, they look at the potential impact on all existing rights. They have to
look at the rights they've issued, exempt well, and claims. If there are five
claims in the same quarter - quarter section, they will go out and look to see if
there are actual water uses associated with those claims. If there are, they
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have to treat them as if they are a valid water right. They may not be. There
could have been a 20 -year break in the use sometime in the past. If they find a
claim that is now a mall parking lot, they can safely say they don't have to
worry about a claim, but they can't officially take the document out of the file
and say it is invalid. Only the courts can do that.
Brown asked if shallow wells could be considered groundwater wells.
Bucknell stated that if one can see the point it is being diverted, then it is
surface water. They only gray area is springs. If a person has a place where
the water is coming out of the ground, and a well intercepts it before it gets to
the ground, then it is considered groundwater. If the water is collected when it
gets to the ground, it is surface water. Ground water is in the ground and
surface water is on top.
Brown asked about the DOE tag and fee on the exempt wells when they
are drilled. Bucknell stated that is only an identifying number. Many agencies
have information on wells. They created a multi- agency database that allowed
each agency to have it's own number, and can link all the different numbers to
the one well they are referring to.
Councilmember Brenner asked if any water below the surface is
groundwater. Bucknell stated it is for the purpose of issuing water rights and
deciding if it is a groundwater right or a surface water right.
Brenner stated for years they've heard that shallow wells are surface
water wells. Bucknell stated they are official aquifers. They are shallow
aquifers, but they are still groundwater. It just means they are near the
surface, which has implications for a bunch of things, particularly contamination.
Sutter asked Mr. Bucknell to relate that information back to the water
transfer program. Bucknell stated the applicant could change applications,
which would change things like the place of use and the point of withdraw if it is
from the same source. One could change the type of use from irrigation to
something else. The season of use can also be changed. Elements of the water
rights can be changed. Right now, the DOE can't prioritize those change
applications unless it is for public health and safety or clear environmental
benefit. Conservancy boards allow those changes to happen. The conservancy
boards would take change applications and investigate the applications and
make a ruling and recommendation to the DOE. It is a way for change
applications to be considered and processed sooner than they would be, under
the existing laws they operate under. The change is to a water right that
already exists.
Sutter stated the proposed ordinance talks about water rights transfers
from one user to another, not change applications. Bucknell stated there are
two types of change applications in the County. One change application deals
with a change of holder, which would be a transfer.
Hoag stated the bylaws also say it can provide a water transfer exchange.
It doesn't say it has to be two different people. Bucknell stated a lot of change
applications are from people who want to have a change in place of use or point
of use, not a change in owner.
Natural Resources Committee, 10/26/99, Page 3
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Brenner asked about the purpose, and questioned whether a lot of the
water rights can be multi - purpose. Bucknell stated some are, depending on
what the permit says.
Brenner asked about funding. The Conservancy Board may not impose
taxes. She questioned how the fees for transfers could cover all the costs of the
Board.
Henry Bierlink, Agriculture Preservation Service, stated other places have
asked for $1,000 for up -front training costs in the first year, which is refunded.
The fees for the application should cover the rest of the costs. If it doesn't
work, the board will not get any transfers. They don't envision having staff.
Fees would have to be established in the beginning. If the board becomes
eligible for grants, then it would want to pursue them.
Hoag asked how they would determine if the fees are prohibitive. Bierlink
stated they would want to use every tool available. The Conservancy Board is a
tool. They will learn by trial and error.
Brenner asked if they have an estimated amount of the number of
transfers they expect to have from Whatcom County. Bierlink stated there are a
half dozen or so on the books now. Jim Bucknell cannot work on those because
they are not a priority. The Conservancy Board will work on those right away.
Those are the applications that everyone agrees make sense. If it works, they
expect a lot more.
Brenner asked what happens if the Conservancy Board charges a fee that
is unreasonable. She asked if there is an appeal now. Bierlink stated a person
could continue to file with DOE instead of the Conservancy Board. The
Conservancy Board does not take that process away.
Hoag moved to change language in the Conservancy Board Bylaws,
packet page 15, at the end of section 5.2, "...purpose of use, provided the users
are in the same sub -basin or aquifer."
Dawson stated she heard only five transfers have been negotiated
statewide under this system. Bierlink stated this is a new regulation. Only one
County has a Conservancy Board that has been up and running.
Dawson stated that out of the five, the DOE objected to two. She asked if
it would be wise to run each one past the DOE. Bierlink stated the first step in
the process is to petition the County Council to create the board. Then, the
County Council has to petition the DOE for the creation of the Conservancy
Board. The DOE has 45 days to respond. Every time the board makes a
decision, they have to notify the DOE who has to ultimately approve the
decision. With most of these, the DOE has expressed concerns, but they have
been worked through.
Dawson asked about the cost of the appeal process. Bierlink stated he
didn't know.
Nelson asked if the sub -basin and aquifer are clearly identified by
mapping. Bierlink stated the aquifer is less ambiguous than a sub - basin.
Natural Resources Committee, 10/26/99, Page 4
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Sutter stated there are sub -basin maps. The County has identified the
sub - basins. Bierlink questioned whether those maps are official.
Sutter stated they are the maps the County has used to identify the sub -
basins.
Skip Richards, citizen, stated the Conservancy Board concept is needed.
He supported the motion. There are questions regarding the boundary specifics.
There are different versions of the boundaries. The idea is to keep the transfers
in areas where the sources are in continuity. Currently, the language allows the
board to allow transfers outside of the County. He urged the committee to
strike that language, beginning on packet page 15, section 5.7, beginning with
the sentence, "In the case of a proposed water transfer..." That is beyond what
the board ought to be doing.
Brown asked how the middle fork diversion into Lake Whatcom would be
affected. Richards stated it would not be allowed per Hoag's motion. It would
prevent any such transfers. It is beyond the scope of what a board like this
ought to address.
Hoag stated her language limits the board from doing that, but it doesn't
limit the DOE from doing that.
Sutter stated the County shares aquifers with Skagit County. There may
be a beneficial exchange of water rights within that sub -basin of the Samish
River. Richards stated the Conservancy Board should not make that decision.
That is a decision that has a long -term impact on the County and ought to be
something in the purview of the County Council or another authority.
Hoag questioned whether her proposed language would hold up the
process on the Conservancy Board. Richards stated it wouldn't.
Marion Beddill, 2600 Seeley, Bellingham, suggested the language,
...purpose of use, provided the users are in the same sub -basin or aquifer as
defined for these purposes by the Water Management agency." They should
specify the water management authority.
Brown asked if the County has a sub -basin map. Beddill stated it does.
Brown stated that is what they should go on. Beddill stated not quite. On
a gross basis, they define sub - basins, rivers, and creeks very well. There are
valid questions of sub - dividing those sub - divisions to lesser and lesser levels. A
challenge may well come along to declare that a transfer is in a different sub -
basin. That is the level of detail of a hassle that could be avoided by adopting a
defined standard, at a level lesser than the United States Geological Service
(USGS) and the County.
Bierlink agreed. He argued against the motion. There are already many
checks and balances. It has to go through DOE and have public comment. He
wasn't sure they were gaining a lot and that the language may close off avenues
they may or may not want to close. He was reluctant to close off possibilities.
Natural Resources Committee, 10/26/99, Page 5
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Hoag amended her motion, packet page 15, section 5.2, "...purpose of
use, provided the users are in the same sub -basin or aquifer as defined by the
County sub -basin map."
Brenner stated she supported the motion, even if there is a small gain.
Sutter stated they are not adopting bylaws of the County Council, but the
bylaws of the Conservancy Board. She questioned whether the County Council
could change the bylaws of the Conservancy Board. The bylaws are not a part
of Exhibit A of the ordinance.
Dan Gibson, Senior Civil Deputy Prosecutor, stated the County Council
can provide direction to the Conservancy Board. The County Council can
condition their existence upon bylaws that the County Council likes. That is a
prudential matter. Whether or not the Council wants to get involved to that
degree is a question of the councilmembers' judgements. Strictly speaking, the
County Council does not have the power to amend the bylaws of a board that
does not exist. The petitioners indicated that they want this board, and the
bylaws that are in the packet, once the board is established.
Nelson stated the Conservancy Board might not even accept those
bylaws.
Brenner questioned whether the County Council could tinker with the
bylaws. Gibson stated the County Council can express its feelings in terms of
what the County Council is willing to approve.
Hoag questioned whether the County Council would only provide the
direction to the board it creates that it would like the board to adopt the bylaws
with an amendment that the transfers only take place within sub - basins. Gibson
stated that is correct. They are also asking for funding.
Bucknell stated they don't need to add anything to the language in section
5.2. When the board becomes trained, it will be clear that they are talking
about changes that have the same source of water. They'll learn how DOE
evaluates whether water is in the same source. That will be a part of their
training.
Brown questioned whether it makes sense to pursue the amendment.
Hoag stated she would be happy to provide direction and withdrew her
motion.
(Clerk's Note: End of tape one, side A.)
Hoag stated there was discussion about other counties being represented
on the board.
Brown stated he wanted to drop the language that allows people from
other counties to sit on the board.
Sutter stated that would be appropriate if it was a larger Board. They
need people to sit on the board who are familiar with Whatcom County
Natural Resources Committee, 10/26/99, Page 6
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geography, hydrology, and politics. She moved to strike language in section
2.23.020, "...County Council shall choose from among persons who are residents
of t-l+e Whatcom County
Nelson stated that if the County Council is going to make
recommendations to the Conservancy Board, the board might be interested in
appointing its own advisory groups where that would be an option. Water does
not recognize political boundaries, and they have to work together to solve
these issues. He wouldn't put a message across that they didn't want the
Conservancy Board to communicate only within these political boundaries. He
suggested the language be couched to suggest that the board use advisory
groups from cross - jurisdictional boundaries.
Brenner stated she agreed with the motion. This language doesn't imply
that they don't want to work with other counties. She was surprised to see
them moving out of this jurisdiction. She assumed they would work with Skagit
County. She understood that, once the board is set up, they could have any
kind of advisory boards they want. Bierlink stated they could.
Motion to amend carried unanimously.
Sutter moved to recommend approval to the full Council as amended.
Motion carried unanimously.
2. RESOLUTION (THREE VERSIONS) REGARDING IMPROVEMENTS TO
THE WRIA 1 WATERSHED MANAGEMENT PROJECT DECISION -
MAKING PROCESS (AB99 -391A)
Jeff Monsen, Public Works Director, stated one of the three resolutions in
the packet deals with how the County represents itself as a single voice at the
ESHB 2514 process. The issue addressed is the possibility of the County,
through action of the County Council, having a second shot at a decision due to
the purchasing and funding procedures. That has loosely been called a 'second
bite of the apple.' At the point the resolution was carried into the work session,
the intention was to minimize the second bite of the apple. Subsequent to that
work session, they received a reaction from the four IG's that they expected the
County to address the second question as well, in this resolution. He distributed
a letter to Bruce Roll from the four IG's. The intention of the other four
governments is to suggest that the County address the second question in the
form of this resolution. The language they suggest does not allow some
flexibility to put together a mutual decision - making process. It begins to select
an option rather than allow some further discussion. Because of that, and
because the opportunity presented itself, Bruce Roll had a meeting set with
Councilmember Nelson last Friday morning on a different matter. The other four
IG's suggested that language be added. The language that was passed on to Mr.
Nelson, distributed to the councilmembers yesterday, accomplishes the same
thing. They agree it is a reasonable substitute to the language in the letter to
Bruce Roll, as he just submitted. The other four IG's would like an answer to
those two basic questions. They want assurance that the County will speak with
one voice at the table. They are willing to move into a procedural adjustment so
they come to an agreement one time rather than on two occasions.
Natural Resources Committee, 10/26/99, Page 7
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Brown moved to approve the resolution that has been provided by
Councilmember Nelson for discussion. It adequately addresses all the concerns
that have been brought forward. It also ensures that the Planning Unit's
structure is included within the frame and part of the decision - making process.
(Clerk's Note: This motion was not voted on.)
Brenner stated Councilmember Nelson's resolution doesn't contain the
provision to ensure that the County Council can look at any substantive changes
from the management team before they are adopted. Otherwise, any
parameters that are put in and any process can be bypassed. That is not the
intent of the process.
Sutter stated her concern was raised by members of the Planning Unit,
who are the citizen caucuses involved. They are not involved anywhere. She
tried to incorporate language in the resolution that would involve the Planning
Unit in this process, appropriately so. They are an integral part of this. She
wrote language on the second page of her handout (on file), in the alternative
one "Be It Further Resolved" statement.
Hoag questioned what was used as background and whether everything
else was the same.
Sutter stated she took all three versions that were received during the
Committee of the Whole meeting. She went through and made them mesh, and
added language she'd gotten from other people, such as Planning Unit members.
She tried to cover all the points in one document.
Brown read from Councilmember Nelson's proposed resolution, which
incorporates the Planning Unit structure. That wording makes sure that the
Planning Unit is involved as it was intended to be.
Hoag stated that language was in all the versions.
Dawson stated she wanted to look at the version brought forward by
Councilmember Sutter.
this.
Sutter suggested that they need to convene a working group to work on
Hoag stated she preferred not to do that.
Sutter moved to convene a working group.
Hoag stated she wanted the audience to see what they are looking at and
what they are voting on. It would have been better if it was in the packet. They
will take a recess to make copies of the versions for the audience.
(Clerk's Note: The committee took a four - minute break at approximately
9:50 a.m.)
Natural Resources Committee, 10/26/99, Page 8
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Sutter stated her motion was to convene a work group to take all the
suggestions and produce one consolidated and concise resolution. In addition,
they have left out a very important step. That step is about what the exact
process would be. The big issue here is the allocation and distribution of funding.
They need to have that piece of the puzzle to know how exactly it would work.
There is nothing specific in there. There needs to be a group of people with an
interest in this. There are a lot of people from the interest groups that should be
involved in the project. It should include the County administration, the County
Council, and the Planning Unit to produce a process and a resolution to carry out
the distribution and allocation of funding.
Dawson stated she wanted to postpone the process. They already have
something very good that has been brought forward.
Nelson stated he understood Councilmember Sutter's concerns. This
intends to put together an administrative process. That is the responsibility of
the Initiating Governments, to forward it to the various legislative bodies. He
agreed that the intent was that approval would come from all the legislative
bodies that this is the agreed administrative process so that the funding can be
forward. If they continue to micro - manage the entire process, the IG's are going
to say the County has no intention of relinquishing the ability of the IG's to work
together. He suggested they move forward.
Brown spoke against the motion. That is part of the criticism the Council
has faced, to put things off too long. He supported the position he supported
from the beginning. By the evening meeting, they can create language to solve
others' concerns regarding substantive changes. Nelson's resolution would be an
appropriate one.
Brenner supported the motion to put all the versions together. She asked
about a rumor that some of the five IG's have already pulled out.
Bruce Roll, Water Resource Manager, stated that according to a
memorandum of agreement (MOA), if one IG was to pull out, they would have to
put it in writing. That has not transpired. Staff from two of the IG's, the
Nooksack Tribe and the Lummi Nation, have refrained from attending the staff
meetings for the past month or so, in response to this action.
Hoag stated she didn't agree with Brown that a work session would be
appropriate. She suggested that they work on the Sutter version of the
resolution.
Motion to convene a work group failed 1 -2 with Sutter in favor.
Hoag suggested working from the Sutter version, because it consolidates
all the resolutions except Councilmember Nelson's, and incorporating aspects of
the Nelson version.
Sutter stated the first three "WHEREAS" statements in her version were in
all versions and can be approved. After the first three "WHEREAS" statements,
there is an alternative one, which came from a member of the Planning Unit. It
is not in any other version. Next is alternative two, which is a compilation of the
other three. They have to choose either alternative one or two.
Natural Resources Committee, 10/26/99, Page 9
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Hoag moved to drop alternative one on the fourth "WHEREAS." It isn't
appropriate. With USGS, they didn't argue about the disbursement of funds.
They argued because it was sent to the Planning Unit. That was a procedural
problem, not a disbursement of funds problem. She didn't agree with that
statement and didn't want to put it in a Council resolution.
Sutter stated she was not talking about the USGS. People on the
Planning Unit have said they have a problem. The County Council and the IG's
also have a problem. There is no one involved in this process that doesn't want
to see this all clarified.
Hoag stated she agreed it should be clarified, but didn't agree that the
County's disbursement of funds raised procedural concerns. The County Council
approved the funds in the end. It just said it should go through the Planning Unit
as the law called for.
Sutter stated they are not talking about that specific one.
Brenner stated the resolution should be objective. That line is subjective.
It indicates that someone is not doing something right. Different entities are
doing things differently. The other statement seems more objective and positive.
Hoag stated alternative two has a more positive tone. She restated her
motion to delete alternative one.
Brown stated alternative one compares to Nelson's version, which he read
into the record. He would vote to drop both alternatives and use the language
from Nelson's version.
Motion to delete alternative one carried 2 -1 with Sutter opposed.
Sutter moved approval of alternative two, with the amendment,
"...WHEREAS, the Initiating Governments' administrative decision - makers and the
Planning Unit of the WRIA 1 project and the County Council expressed concerns
that the County's disbursement needs to be resolved to provide certainty for the
WRIA 1 projects; and," She wanted to see the Planning Unit included and wanted
to acknowledge that the County Council is also concerned.
Hoag stated they are addressing this in response to concerns that were
brought to the County Council. The County Council has never taken a formal
position on this, and neither has the Planning Unit. She would not support that
motion.
Nelson agreed with Hoag. The reason for this process is because
concerns have been raised regarding disbursements by this Council and also the
Initiating Governments. That is the reason he would like to see that retained. It
is a matter of fact. It is appropriate that the language be in there recognizing
that there were groups that raised concerns about how this administrative
process would proceed.
Hoag stated the Council did not raise concerns.
Nelson stated the Council is reacting to that concern.
Natural Resources Committee, 10/26/99, Page 10
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Hoag stated the Council is trying to resolve those concerns, and that
language is expressed throughout the document.
Motion to approve alternative two with amendments failed 1 -2 with Sutter
in favor.
Brown moved to insert Nelson's version of the language on lines 26
through 28 on page one, "WHEREAS, issues related to the County's disbursement
of funds have raised procedural concern from both the Whatcom County Council
and the initiating governments; and,"
Hoag stated she opposed the language because the County Council did
not express concerns. The Initiating Governments and administrative decision -
makers of the Initiating Governments raised the concerns. She would rather
have it as it is in the current alternative two from Sutter's version.
Brenner stated she supported the motion because the administrative
entities raised the concerns originally, but the concerns have been raised by all of
them now. She would rather see that all sides are included. She has raised
concerns about it, as have other councilmembers.
Hoag stated she hasn't raised concerns about the County's disbursement
of funds or the process. She is concerned that the constituents are represented.
That is a very different issue. The County Council was told that the way it
approved USGS was the problem. She didn't agree that was a problem because
they were following the law.
Brenner stated the County Council didn't agree on the procedural process.
To her, that says they are all raising concerns. They just don't agree on the
concerns.
Motion failed 1 -2 with Brown in favor.
Sutter moved to amend and approve alternative two, "...WHEREAS, the
Initiating Governments' administrative decision - makers of the WRIA 1 project
and the County Council expressed concerns that the County's disbursement
needs to be resolved to provide certainty for the WRIA 1 projects; and," The
Council may not have raised concerns, but it has expressed them since they've
been raised. This alternative is the same as in Councilmember Nelson's version.
Hoag stated she spoke against it for the reasons stated earlier.
Motion carried 2 -1 with Hoag opposed.
Hoag moved to approve the fifth "WHEREAS" statement in
Councilmember Sutter's version.
Motion carried unanimously.
Hoag read the sixth "WHEREAS" into the record. She so moved.
Natural Resources Committee, 10/26/99, Page 11
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Sutter stated the change to that was from "matters of policy and budget"
to "matters of policy and disbursement of funds" and she added, "under
consideration by the Planning Unit and the administrative decision - makers."
Motion carried unanimously.
Nelson stated the intent was that all legislative bodies in the process have
the ability to look at this before they direct their administrative leads. He
suggested added language that all legislative bodies be informed in a timely
manner.
Hoag stated this is the County Council process and she didn't want to
direct the other legislatures.
Nelson stated they are directing this to the decision - making process,
which is the administrative.
Hoag stated they don't control others' governments.
(Clerk's Note: End of tape one, side B.)
Hoag moved to approve "WHEREAS" statement number six on Sutter's
version.
Motion carried unanimously.
Hoag moved to approve the "WHEREAS" statement number seven on
Sutter's version.
Sutter stated this was one that Councilmember Hoag added. She
changed the language from it "being imperative that the County Council has
ample opportunity" to it "being the County Council's duty to represent the
constituents."
Hoag stated that language was fine with her.
Motion carried unanimously.
Hoag moved to approve the first "NOW, THEREFORE, BE IT RESOLVED"
statement on page two of Sutter's version.
Nelson stated that language is the same in all versions.
Motion carried unanimously.
Hoag read into the record alternatives one and two in the "BE IT FURTHER
RESOLVED" statements. There should be an alternative three that is on packet
page 26, which she read into the record.
Sutter stated the language that was important to her was the language
regarding review and providing direction in the disbursement of funds, in
alternative two.
Natural Resources Committee, 10/26/99, Page 12
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Brown stated he preferred alternative two, without the language "regular
monthly meetings." They should be allowed to schedule meetings as needed.
Brenner agreed with Brown's comment regarding meetings. On the other
part about consideration, she questioned whether the section from Sutter's
version that says, "prior to final joint review" would mean that it is under
consideration.
Hoag stated that in her language, she took out "prior to final joint review"
and substituted language that there would be regular meetings between the
administration and the Council to provide ongoing opportunities for the Council to
review and approve these while they are under consideration. It goes on to say
that negotiated changes would be brought back. The difference is that this says
the Council would have a meeting to review and approve, and it would go to
them for final decision.
Brenner disagreed. It says there will be regular monthly meetings to
provide ongoing opportunities before the final joint review.
Hoag stated the entity having the final joint review is among the five
administrative decision - makers.
Brenner stated they do that right after the County Council has made its
decision.
Hoag stated this alternative, and Bruce Roll's original language, said that
the Council would provide direction, and they would make the final decision. Her
language was saying that the County Council would have input and provide
direction on what is under consideration. If there are any changes from what the
County Council provides, then they would come back to the Council.
Sutter stated they have to keep an eye on what this committee is trying
to accomplish. When the IG's meet, they already have direction from the Council
regarding any specific budget and funding matter. They have direction from the
Council. They have the Council's representative at the meetings. If they make
any changes to the Council's direction, then that should be brought back before
the County Council.
Brown supported Nelson's version, page two, lines one through four,
instead of the items in the Sutter version. It gives the County Council a chance
to approve the budget and gets it out of their hands. The only thing that may
need to be included is language to address any substantive changes on a project.
Hoag stated that language was from the original resolution from Bruce
Roll. The difference between that language and her suggestion is that hers says
the County Council would review and approve while the administrative decision -
makers have projects that are under consideration. Nelson's language allows the
five administrative decision - makers another bite at the apple. That is why she
recommended her language. The WRIA 1 flow chart clearly says the scope of
work of the administrative decision - makers of the IG's. She read scope of work
into the record. The respective councils of the IG's are responsible for policy.
The administrative decision - makers are not responsible for setting policy. The
Natural Resources Committee, 10/26/99, Page 13
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County Council should set the policy, and have final approval. It should not go to
a final joint review of five non - elected administrators.
Nelson stated the intent is the same as what is outlined. He didn't believe
that Councilmember Hoag's additional language would resolve anything other
than implying that she wants another look at things. This language does exactly
what the flow chart states. The Council reviews it and gives direction to the
administrative process. If there are dramatic changes, the County Council and
other councils always have the opportunity to withdraw from the process. He
has faith in the process and in the County administration to carry it forward.
They County Council can't dictate to the other jurisdictions, but they would agree
that their direction to their administrative officials would reflect their wishes as
well. That consensus should come back to the Council as it was proposed.
Hoag stated that if the County Council withdraws from the process, they
lose their seat at the table.
Nelson stated that if they are violating the process, then that is what
would happen.
Dawson stated she approved of the last portion of Nelson's proposal and
of incorporating Sutter's version regarding negotiated changes. She also
suggested a language change to Sutter's version, "...for fi-n approval prior to the
final budget process...."
Sutter stated the sticky point is not having a well- defined process as to
how the County is going to deal with the financial end of this administrative
process. They need to know that. They can't make a well- reasoned decision
until they know what the process is. The councilmembers have different ideas
about the processes and scopes of work. Until they figure it out, they can't
complete this.
Brenner stated one of the reasons that every word in this resolution is so
important is because there isn't a real process. Everyone's intent is that the
Council be actively involved, give direction, and make parameters before any
final decisions are made. They all agree on that. Either version says the same
thing. The bigger problem is that this will not solve the problem.
Brown stated the County Council needs to review and approve the
direction they are going and the projects that are being sent forward. The
projects are coming through the Planning Unit and through the County Council.
Once they are reviewed, the County Council should not tinker with them any
more. The funds should be set aside. That would relieve the County Council of
having to go through a review that hampers the process. The concern is if there
is substantial change by the IG.
Hoag stated they've all been talking about the importance of making sure
that the County Council is able to approve and review this prior to the final
decision. They get stuck on who is making the final decision. It is very
important that the County Council make the final decision if it is going to be
anything different than what it has already agreed to, for both policy and budget.
They are saying that the Council should have review and approval. If there are
no substantial changes, that is fine. They don't need a second bite at the apple.
Natural Resources Committee, 10/26/99, Page 14
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That is what her language does. It clearly leaves it so that it is a decision made
by the Council, and if it is changed then it comes back to the Council. When they
leave the language in there about final review, they are saying that the final
review rests with them. She suggested language, "BE IT FURTHER RESOLVED
that regular meetings will be scheduled between the County Council and the
County administration to provide ongoing opportunities for the County Council to
review and approve policy and budget matters under consideration among the
five administrative decision - makers of the Initiating Governments. BE IT
FURTHER RESOLVED that negotiated changes will be brought back to the County
Council and the respective councils of the other Initiating Governments, as
agreed to during the creation of the Memorandum of Agreement, for final
approval prior to the budget process." If there are any changes, it goes back to
the councils for final approval. That is what is in the flow chart, the
Memorandum of Agreement, and in 2514. This is the way the law reads.
Sutter stated that the County Council only has final decision - making
power as to the direction to the staff regarding policy or budget. All five IG's
have to have consensus. It is up to the administrators to work with the others
for consensus. She had a problem saying that the County Council will review and
approve policy and budget. The County Council will review and give direction
regarding policy and disbursement of funds. They are very different things. It
sends a message about how much the County is willing to cooperate in this
process.
Hoag stated they have to remember that the County is one of the
members of the Initiating Governments sitting at the table. It does have to be
by consensus. One of the entities that has to agree is the County Council. All
she is saying is that, for their portion of 1 /5th of the Initiating Governments, they
want to make sure that what is agreed on is what the Council agrees to.
Nelson stated Hoag is asking that if the agreement doesn't agree with the
County Council's perception, then the County will kibosh the decision of the rest
of the IG's. That tells the other Initiating Governments that they don't have any
say, because if they don't do exactly what the County Council wants, the County
Council is not going to give the money to them. The County Council gives
direction in policy and budget to the Initiating Government. They are responsible
for coming up with a consensus based on watershed management and their
various expertise areas. There may be things that interact with fish habitat that
the County deals with in its land use. There may be things that interact with fish
hatcheries, which the tribes deal with. Those are the things that they have to
have consensus on. That is what will be the final decision. If the County Council
doesn't provide funding if the decision is not exactly what the Council wants, then
there is no use for them being involved, and the County Council might as well do
the entire thing. If the decision goes opposite to the direction that the County
Council would like to go as part of the Initiating Government, then they have to
decide whether the process is worth being involved with. If the County Council
starts second - guessing and changing the consensus, after they've given their
policy direction, then all they are doing is telling them they don't need to be
involved because the County Council will veto what they don't like anyway.
Hoag stated she was not saying they would put the kibosh on the entire
thing. She was saying that they need to have the same kind of representation at
that table as each of the other governments. If there is something the County
Natural Resources Committee, 10/26/99, Page 15
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doesn't agree to, then they won't agree. It is the same thing that every
government at that table has a right to do. Any one of them can say that a
decision is not in the best interest of his or her constituents. The County Council
needs to retain the right to do that.
Nelson stated that is County Executive Kremen's responsibility.
Dawson stated she liked Nelson's version, with the change, "... prior to
fiiaf joint review..." and with the addition of Sutter's language regarding
negotiated changes being brought back to the County Council, as agreed to in
the MOA, "...for figa4 approval prior to the final budget process and /or
disbursement of funds."
Hoag stated she wouldn't recommend moving the word "final." They want
to approve it and be done with it if it doesn't change. If they switch the
language, it provides the County Council with the second bite at the apple.
Dawson agreed about not moving the word "final." She also supported
incorporating that paragraph from councilmember Sutter's version into
Councilmember Nelson's version.
Brenner agreed with Councilmember Dawson's suggestion. She didn't
think that the County Council needs to wait until the administrative decision -
makers change 180 degrees before it comes back to the Council. Any
substantive change should be brought back to the County Council. By bringing
the item back, they are not micro managing. She understood that they are
directing the policy and not the exact wording.
Hoag moved to approve "BE IT FURTHER RESOLVED that changes
negotiated by the administrative decision - makers of the Initiating Governments
will be brought back to the County Council and the respective councils of the
other initiating governments, as agreed to during the creation of the
Memorandum of Agreement, for final approval prior to the budget process and /or
disbursement of funds."
Motion carried unanimously.
Beddill stated she favored the language from to Sutter's version, "to
provide direction regarding policy and disbursement..." instead of Nelson's
language on page two, lines two and three, "to review and approve policy."
Sutter's language looks as if they are acting early in providing a sense of
guidance.
Hoag asked about providing only direction on budget and leaving things
wide open. She asked if it was okay to separate policy and the disbursement of
funds so that it would be clearer that it was a one -time deal. Beddill stated she
supported that it be a one -time deal. She was comfortable with that.
Sutter questioned whether she wanted to insert language, "...to provide
direction regarding policy and approve disbursement of funds..." Beddill stated
that was correct.
Hoag stated she was a little uncomfortable with that.
Natural Resources Committee, 10/26/99, Page 16
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Kathy Bovencamp, Building Industry Association, stated they were strong
supporters of the County Council becoming the lead agency for the 2514 process,
precisely because of the conversation they are having right now. The County
Council is the only body elected to represent every citizen of the County. The
other IG's are not going to write a blank check because it has to be approved by
consensus. The County Council should review and approve policy and budget.
She suggested a language change, "...prior to €ice joint review and agreement
among the five..." There needs to be a bellwether of what a substantive change
is. It is the County Council's job to review and approve. If they are going to
give that job to administrative staff, they may as well give that job to anyone
who was not elected to do that job.
Regarding the Planning Unit, the County Council has not received a
statement from the Planning Unit expressing concerns about how the process is
going. There may have been concerns expressed by members of the Planning
Unit. The Planning Unit, to date, has not approved of any projects. The projects
were all initiated by the IG's so they could get the process moving. The Planning
Unit has not approved projects at this point.
Sutter questioned whether it was Ms. Bovencamp's position that the
County Council should have sole authority over approval of budgetary matters.
Bovencamp stated no. They are working in a consensus process, but they are
still making decisions as the County Council. It is reasonable for the County
Council to approve a certain amount for a certain project. If the administration
asks for more, it is reasonable for them to go back to the County Council.
Sutter stated they would need to go to the other Initiating Governments
also. Bovencamp stated that was correct.
Brenner stated she agreed with Bovencamp. Bovencamp stated it should
say "review and approve policy and budget."
Brown stated that language is in Nelson's version.
Bovencamp stated it is in Hoag's version also. They can get rid of the
word "final." They should say, "...prior to review and agreement among the
administrative decision makers." It has a different connotation.
Hoag restated Bovencamp's suggestion to amend language from Nelson's
version, page two, lines two and three, "...to review and approve policy and
budget matters prior to €ice joint review and agreement among the five..."
Richards agreed with Beddill and Bovencamp. They should try to be clear
about what they are trying to do. When the administration sends a
representative to a discussion by the Initiating Governments to come up with a
project or proposal, and they make a tentative recommendation, the
administration should bring it back to the Council for review and approval. Then,
it goes back to the Initiating Governments. If they make changes to it prior to
their final decision, the County Council should look at it again. That was the
intent of the Bruce Roll version of the language. He proposed language that tries
Natural Resources Committee, 10/26/99, Page 17
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to consolidate everything, "BE IT FURTHER RESOLVED that the County
administration shall provide sufficient opportunities for the County Council to
review and approve all policy and budget matters prior to any final decisions by
the five administrative decision - makers of the Initiating Governments." That
way, the County Council is in the loop until the final cut, and that's it. They don't
get a second bite at the apple.
Sutter questioned whether there is a difference between budget and
disbursement of funds. She didn't think there was. They have to separate those
two processes. The budget process that the County goes through is different
than the disbursement of funds for the 2514 process.
Hoag stated the disbursement of funds is giving the funds away.
Budgeting is when they decide to where the money will go.
Sutter asked if they were talking about the budget process or the
disbursement of funds.
Hoag stated they are talking about the budget process here. She
suggested they clear that up, then move on to Nelson's suggestions regarding
the disbursement of funds process.
Brenner asked Richards to put his proposed language in writing.
Robin Dexter, citizen, urged that this be put off until it is clear what they
are doing. There seems to be much confusion between the County's role as lead
agency and the County's role as a caucus. They all deserve to see one clear text
that shows how far they've gotten. They haven't seen the last of the language.
They haven't seen any policy from the County Council. It would be easier to bear
if the County Council had actually made some policy. So far, the direction seems
to be preserving their ability to react. He would much rather see a proactive
approach that indicated what the County Council wants. He disagreed with
Bovencamp's statement that the County Council is the only body that represents
the entire County. He asked the committee to get Kelli Linville, who wrote the
bill, to explain the legislature's intent.
Hoag stated she talked to Kelli Linville, who agreed with where she was.
They did have some concerns about the budget and approval process, and it
should be like a contract. That is the language they are trying to include.
Hoag withdrew her motion.
Hoag moved to approve the language from Nelson's version, page two,
lines one through four, with Bovencamp's suggestion, "...that regular monthly
meetings will be scheduled ... to review and approve policy and budget matters
prior to €4ia4 joint review and agreement among the five..."
funds.
Sutter questioned when they are going to deal with disbursement of
(Clerk's Note: End of tape two, side A.)
Natural Resources Committee, 10/26/99, Page 18
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Hoag stated they would do this first, then go to the discussion about the
disbursement of funds.
Motion carried unanimously.
Hoag moved to approve the 'CBE IT FINALLY RESOLVED" statement on the
Sutter version.
Motion carried unanimously.
Hoag stated they would discuss Nelson's added language, page two, lines
six through 14, at the County Council meeting.
Brown moved to bring the resolution forward to the full Council as
amended in committee with the other language regarding financial
disbursements to be considered.
Motion carried unanimously.
ADJOURN
The meeting adjourned at 12:00 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Connie Hoag, Committee Chair
Natural Resources Committee, 10/26/99, Page 19