HomeMy WebLinkAboutSpecial Committee of the Whole April 15 19992
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WHATCOM COUNTY COUNCIL
Committee Of The Whole
April 15, 1999
The meeting was called to order at 1:00 p.m. by Council Chair Marlene Dawson in the
Forest Street Annex Chambers, 1000 North Forest Street, Bellingham, Washington.
Also Present:
Kathy Sutter
Connie Hoag
Barbara Brenner
Tom Brown
Robert Imhof
Absent:
L. Ward Nelson
UPDATE ON LOCAL AND STATE SALMON RECOVERY EFFORTS (AB99 -055)
Jeff Monsen, Public Works Director, stated that there will be a presentation with three
speakers: Mike Milne with URS Greiner Woodward Clyde, Ron Campbell with R2 Resource
34 Consultants, Inc., and Dan Gibson Whatcom County Senior Civil Deputy Prosecutor. They will
35 be discussing salmon life history, Endangered Species Act (ESA) responses by other
36 jurisdictions, risk management, and Whatcom County's current activities.
37
38 Ron Campbell, R2 Resource Consultants, Inc., discussed salmon life history. He first
39 looked at the National Marine Fisheries Service (NMFS) process. With the 4(d) rule, NMFS will
40 define what "take" means for the species. Everyone is trying to minimize that "take" definition
41 to be narrower. 4(d) is a section of the Endangered Species Act which is the NMFS
42 requirements. NMFS has to define what critical habitat is, and the federal government has to
43 come up with a recovery plan. They are not going to get much out of NMFS about critical
44 habitat. They have a very generic approach. It will look like, "All waterways, substrate,
45 adjacent riparian areas downstream of long- standing naturally impassible barriers." Anything
46 that will touch water that the fish will have access to will be defined as critical habitat. NMFS
47 also has to come up with a recovery plan that will address the full life cycle requirements of the
48 fish and it has to encompass the entire Puget Sound Evolutionary Significant Unit (ESU). That
Special Committee of the Whole, 4/15/99, Page 1
I means that Whatcom County actions do not influence the entire Puget Sound. The County's job
2 is not to come up with the recovery plan for the species for the whole geographic area. That is
3 the federal job. The ESU for Chinook is the entire Puget Sound, from the Canadian Border, to
4 Olympia, and back up to Port Angeles. County actions need to do three things. The actions
5 cannot "take" a species, must support and complement the overall federal program, and cannot
6 appreciably reduce the likelihood of survival and recovery of the fish. The County will be a
7 component, or one module, of the overall plan.
8
9 Brenner questioned who would create the County's piece of the plan. Campbell
10 responded that the County would create a response.
12 Hoag asked where it is stated that it is not the County's responsibility to recover the
13 species. Campbell stated that it comes from the ESA.
14
15 Mike Milne, URS Greiner Woodward Clyde, stated that there are some areas in which the
16 local government doesn't have control, like harvest, hydro power, hatcheries, and international
17 treaties. The County is really only responsible for one of the 4(d) tools.
18
19 Campbell discussed salmon life cycle. They are unique in that, in each of their life
20 history, they use a different part of the basin. Regarding migration, they need to get upstream
21 and have access to their spawning grounds. Historically there are natural barriers. Along the
22 way they have created dams, water diversions, and road culverts. They have lost some deep
23 holding pools. When the fish come in, they often pull over in holding pools until the timing is
24 right.
25
26 Dawson asked what has most affected the lack of the deep -water pools. Campbell stated
27 that often it is an effect of coarse sediment filling in pools and channel manipulations.
28
29 Dawson asked what they would do to compensate for that. Campbell responded that they
30 need to let the rivers carve their path and keep as much sediment as they can out of the streams.
31
32 Dawson asked if that means dredging. Campbell stated not necessarily. The hydraulics
33 of the river will create deep pools.
34
35 Brenner asked if the river will create and keep the deep holding pools on its own and they
36 won't go away by the natural sediment coming down. Campbell stated that a lot of the rivers are
37 glacial streams. There is naturally a heavy load. They can't create something that wasn't there
38 historically. A natural river process will create the habitat features they are looking for.
39
40 Dawson asked if they would lose something else, such as farmland, if they let the river do
41 what it wants. Campbell stated that was true.
42
43 Campbell continued to state that, when they reach spawning grounds, the fish look for
44 good clean gravel. They want the spaces in between to be free of sediment so they can dig the
45 nest and so water will flow through to carry away waste products. They like low gradient
Special Committee of the Whole, 4/15/99, Page 2
I meandering streams. The Chinook are main stem spawners. They are not up in the tributaries.
2 They want stable stream flows after they spawn.
3
4 Channel manipulations have had an impact on habitat. When they armor the stream
5 banks, they tend to straighten the watercourse, which cuts off all side channels, oxbows, and
6 flood lands. They have steepened the stream gradients and coarsened the stream bed materials.
7
8 In summer rearing, the fish like cool stream temperatures, shade, and lots of vegetation
9 overhanging the water. They like deep pools, stable stream banks, and complex channels.
10
11 Brenner asked how they can have an overhang and a stable stream bank. Campbell stated
12 that the river will carve underneath the bank, and the fish like to get underneath there for cover.
13
14 Brown stated that is not stable, because it usually falls in after a while. Campbell stated
15 that undercutting isn't bad. He was describing constantly eroding, exposed banks.
16
17 Campbell continued to state that livestock watering is a hot issue. It can break down
18 stream banks, widen the stream, and make it shallow, warmer, and offer fewer pools or instream
19
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cover.
Brenner stated that it also creates more sediment in the stream. Campbell agreed.
Campbell continued to state that, regarding winter rearing, most of the Chinook move out
the first year over the winter. Not all of them do. There is a percentage that will over - winter. In
25 this case, they like deep pools and large, clean substrate. When this happens, the temperature
26 gets cold, they lose their swimming speed, and move into the substrate to avoid predators. They
27 are looking for refuge habitat, such as off - channel habitat.
28
29 Hoag asked if he was talking about Spring Chinook or Fall Chinook. Campbell stated
30 that the Spring Chinook will over- winter, not the Fall Chinook, which is mostly the hatchery
31 stock.
32
33 Campbell continued to discuss out - migration. Once they get to a certain size and are
34 ready to move on, they need sufficient stream flows, decent water temperature, unhindered
35 access downstream, good water quality, and good feeding opportunities. In the estuary, the fish
36 are acclimating to the marine waters. They spend some time in the estuary feeding and getting
37 used to that change. They will change from a diet of drifting invertebrates to bottom feeding.
38 They want access to the shallow, near -shore waters for feeding and cover. It is important habitat.
39 They like the estuary wetland marsh areas. At that point, they are still small, from 2" — 4 ". The
40 Spring Chinook might be a couple of inches larger.
41
42 Regarding ocean survival, there has been a cycle of cold ocean conditions. The warm
43 currents in the ocean affect their feeding capabilities. They are supposed to be entering into an
44 area of better ocean conditions. In a long -term cycle, it could take 30 years to improve survival
45 in the ocean. There are also issues surrounding commercial, sport, and tribal harvest.
46
Special Committee of the Whole, 4/15/99, Page 3
I Brown stated that there is nothing listed under the ocean conditions about the predators
2 that are out there. Common complaints are increased seal populations. Campbell stated that
3 there are increases in the eagle population and also, whales and seals. He didn't think there is
4 any data on how many fish are taken by predators.
5
6 Hoag stated that there is some data that says there is almost as much being eaten by
7 marine mammals as are being commercially fished. It also said that 25% of the fish returning on
8 the Columbia River had mammal bites on them. There is some data out there, but it is being
9 ignored.
10
11 Dan Gibson, Whatcom County Senior Civil Deputy Prosecutor, stated that he has that
12 data and will go over it.
13
14 Brenner stated that, even if there is not a lot of data on it, it should be listed as a key
15 component of whether or not they will survive the ocean. Campbell stated that part of the
16 process is to define limiting factors, which will sequentially list the effects at each life stage.
17
18 Brenner stated that they don't have any affect on the cycles of the ocean either.
19
20 Hoag stated that the Conservation Commission, who is heading up the limiting factors
21 analysis, said they are only focusing on habitat and they are not looking at ocean conditions,
22 harvest, hatcheries, or predators.
23
24 Campbell stated that there are four key issues, called the four "Hs." They are habitat,
25 harvest, hatcheries, and hydropower. The County has control of its management systems and
26 practices that can have an influence on habitat. They don't have a control of hatchery or harvest
27 issues. NMFS needs to deal with them. They will be a part of a component, just not the
28 County's component. There are also four key areas to focus. They are the fish passage issues,
29 stormwater management, regulations and incentives, and water resources.
30
31 Finally, Campbell stated that they found that fish can withstand a lot of abuse if there is
32 good habitat. If they have good habitat and they are spawning and rearing in good numbers, then
33 they can withstand all of the abuse.
34
35 Milne gave a presentation on the Tri- County ESA response. He has been working with
36 Pierce County for the last several months. His company is an environmental and technical
37 engineering company. They have been assisting Pierce County with their ESA response, who
38 has been an active participant in the tri- county process including King and Snohomish counties.
39 They got into action last year. The goal was to put together a united front, thinking that they
40 would be in a better position to negotiate with the NMFS for the Chinook listing and with the
41 Fish and Wildlife Service for the Bull Trout. They tried to avoid duplication of effort. A lot of
42 the activities are going to be useful to anyone in the Puget Sound ESU. The ultimate goal was to
43 try to comply with the requirements of the ESA without undermining the local economy.
44
45 Their short-term strategy is to implement "early actions" to demonstrate commitment and
46 diligence. Those actions include things such as culvert replacement, additional staff for
Special Committee of the Whole, 4/15/99, Page 4
I enforcement, and public education programs that would benefit the salmon. These were all
2 things that were already budgeted and approved. They hoped to demonstrate to NMFS and any
3 environmental groups that they were doing quite a bit. Another aspect of the short-term strategy
4 is to obtain legal protection for city and county programs under the 4(d) rules. Those rules are a
5 prohibition on "take." In the past, NMFS has prohibited everything that can hurt fish. In some
6 cases, they have written in specific exceptions. The Tri- counties are hoping to get a lot of their
7 stormwater programs, sensitive areas ordinance, and other similar programs exempt from the
8 4(d) rule. The 4(d) rule is just a short-term protection and can be changed at any time. They are
9 trying to get coverage for road maintenance and other day -to -day activities. They are trying to
10 get those day -to -day programs exempt by showing that they are doing best management
11 practices and reasonable design criteria. They are minimizing the potential for a "take." The
12 third piece of the short-term strategy is to develop a Water Resource Inventory Area (WRIA)
13 conservation plan to guide long -term recovery efforts. The conservation plans are to provide a
14 road map of long -term recovery efforts. They want to be sure the federal government is going to
15 be okay with their plans before they get too far down the road. This term doesn't have any legal
16 meaning in terms of the ESA. It is the local government's chance to dictate what they feel they
17 should be doing to preserve and protect habitats within their jurisdictions.
18
19 Brenner questioned what an incidental take is. Milne responded that Gibson will go into
20 it in detail. There is a section of the act that says, if they are doing lawful activities, they realize
21 they can't help taking habitat of the listed species. They want to make sure it is minimized, so
22 they need to do a habitat conservation plant to keep it minimized.
23
24 The long -term strategy, which depends on successful negotiation with NMFS, is to
25 implement WRIA conservation plans. Key elements in the plans include a monitoring element
26 and adaptive management approaches. Another strategy is also to develop a Habitat
27 Conservation Plan where needed.
28
29 Brenner questioned whether the final conservation plan is going to be on the quality of
30 the habitat or the number of fish. Milne stated that they don't want it to be tied to the number of
31 fish. All they can control is habitat. They are focusing on the 4(d) rule and the conservation
32 plan roadmap.
33
34 Milne continued to state that a part of the Tri - County strategy was to provide
35 documentation of the efforts that they had underway before the Chinook listing became official.
36 Most of the entities put together initial response plans. They are trying to set the stage for
37 negotiating the 4(d) rule by convincing Fisheries that they are doing a good job. They want buy -
38 in for long -term response strategy and also to demonstrate to NMFS that they are doing response
39 actions in a reasonable and efficient way.
40
41 The plan includes an overview of the habitat conditions, a review of existing local
42 regulation, policies, and programs. In that review, they highlighted their habitat protection
43 features and potential areas of improvement. The plan also includes "early actions" to enhance
44 recovery, such as culvert replacements and better enforcement. They were careful not to make
45 any commitment on behalf of the County to change all of the items. They were trying to indicate
46 priorities to be looked at when they have a better idea of the key limiting factors.
Special Committee of the Whole, 4/15/99, Page 5
2 Milne stated that they pointed out to NMFS that they have good programs currently. Just
3 because there was degraded habitat, it didn't mean it was due to the existing regulations or
4 programs. A lot of that occurred over the last 100 years.
5
6 The long -term response consists of conservation plans to be prepared over the next 2 -3
7 years, assuming that there is an agreement with NMFS to meet the requirements. Negotiations
8 are underway to ensure everyone has the same understanding about the plan's content and
9 timeline. In the initial response, they indicated what Pierce County proposed to include in their
10 WRIA conservation plans. One was a limiting factors evaluation. Inter jurisdictional
11 coordination is also a key. Stakeholder involvement is mostly from the residents. It is going to
12 be important because people are going to have to be supportive of the response. People say they
13 value salmon recovery, but there has never been a price tag attached to do that. They also need
14 to ensure they are taking the most appropriate measures and have chosen efforts that make sense,
15 and there are the appropriate mechanisms for funding. There also needs to be appropriate
16 monitoring to measure progress.
17
18 (Clerk's Note: End of tape one, side A.)
19
20 Milne stated that negotiation of the 4(d) rules has been divided by discipline, such as
21 stormwater, roads, and sensitive areas. They want to ensure that they have approval of content
22 and timeline for the WRIA conservation plans and continue to implement the early action plans,
23 and begin preparation of the WRIA conservation plans when they get approval from NMFS.
24
25 Dan Gibson, Senior Civil Deputy Prosecutor, addressed questions that came up earlier.
26 One was regarding marine mammal predation. He referred the Council to NMFS information,
27 which conservatively estimate that the bio -mass consumption, fish, of Oregon and Washington
28 Pacific Harbor Seals is 217,000 + metric tons annually, which is almost half of the commercial
29 harvest. Approximately 1/3 of the total take between commercial and marine mammal predation
30 is attributable to marine mammals. There is a process underway as part of the NMFS tasks to
31 reduce that number. The NMFS analysis was that the amount was salmon consumption.
32
33 Hoag stated that those numbers are lower than the numbers that the legislature uses.
34 Gibson stated that these are NMFS numbers. It is being addressed as a part of the NMFS
35 responsibility.
36
37 Dawson questioned what NMFS is doing about marine mammal predation. Gibson stated
38 that NMFS has found that temporary removal is not as effective as lethal deterrents.
39
40 Gibson stated that they would talk about risk analysis. He compared it to buying
41 insurance. Planning for salmon under the ESA would be thought of as buying life insurance.
42 One doesn't buy it for the sake of buying it, but to protect the family's financial well being. The
43 risks to be minimized is running afoul of the take provisions, section nine of the ESA. The
44 practical application of section nine is addressed through section 4(d) rules. If they are prepared
45 to accept more risk, they don't pay as much to start with. Accepting more risk is potentially
46 costly. Avoiding all risk is also very costly. The legal risks include criminal prosecution for
Special Committee of the Whole, 4/15/99, Page 6
I violation of the "take" prohibitions or violation of 4(d) rules, and being sued by private parties
2 for injunctive relief with the liability for costs and attorneys' fees if one loses.
3
4 The ups and downs of cost and risk include a range of options from doing nothing to the
5 Habitat Conservation Plan (HCP) available under section ten. The "take" risk is initially low,
6 limited to the egregious examples of "take," the easy targets. The attorneys for NMFS and Fish
7 and Wildlife will say that they have to bring forward cases that are easy. An easy target might be
8 a municipality that has failed to adequately screen its water intake. The industry or farming
9 activity in which the management practices are so blatant that they can't be ignored is another
10 example. Complete risk avoidance costs are initially very high, given the lack of certainty that
11 currently exists about precise measures needed to achieve salmon planning goals. If NMFS
12 knew exactly what was required in each instance to achieve salmon recovery, it could write a
13 better policy. If they are looking at an HCP at the outset, they will be putting a lot of time and
14 money into it and will be paying for more risk avoidance that would be ultimately necessary.
15 Attitude counts and has value in avoiding "take" liability. A do- nothing approach is initially
16 low -cost, and long -term high risk. The County is not at that point. The section 10 (HCP)
17 coverage is high cost in terms of time and money. It is also low -risk. The 4(d) package is more
18 of an economy plan. They are giving up longer -term certainty because the rules can be changed
19 at any time.
20
21 Hoag asked the difference between doing nothing and only complying with the rules that
22 they are given. Gibson stated that there is a big difference. Absolute compliance with those 4(d)
23 rules is not the only way to avoid "take" liability. There is a difference between avoiding "take"
24 liability and absolute compliance with 4(d) rules. The 4(d) rule is an elastic concept.
25
26 Compliance with 4(d) rules is, for the time being, the middle -of -the -road approach.
27 Locally customized, negotiated 4(d) rules are initially more costly in terms of staff time. The
28 County doesn't have a plan yet because they are time burners and cost money. Pierce County is
29 to be complimented for doing what they have done. When one talks to NMFS, one is surprised
30 about their relative lack of enthusiasm for Pierce County's efforts. Region -wide 4(d) rules, on
31 the other hand, present risk of being held to someone else's unrealistic or unnecessary standard.
32 There is no easy choice.
33
34 Whatcom County is not in the "do nothing" position. The County has been setting
35 money aside to buy this insurance. The County has a State Environmental Protection Act
36 (SEPA) ordinance, Critical Areas ordinance, development standards, stormwater management
37 standards, land disturbance permits, zoning, a Comprehensive Plan, a draft Flood Hazard
38 Management Plan, a manure ordinance, potential conservation futures fund use, potential salmon
39 filter on open space taxation program, and availability of County parks property for habitat
40 enhancement projects, such as the South Fork Nooksack. SEPA has never been intended to be
41 an absolute "no" to development. It was intended to be used as a source of information. SEPA
42 may become more substantive in its implication, as they apply a stronger fish filter.
43
44 Brenner questioned whether the County can go back to the properties that they have
45 already added to open space and add this component to it. Gibson stated that they can review the
Special Committee of the Whole, 4/15/99, Page 7
I rating system. They can create an incentive by assigning higher points in the rating system to
2 fish habitats.
3
4 Gibson stated that another critical element of ESA is section 7, consultation. Road
5 construction is dependent on federal funding. The responsibility for section 7 is on the federal
6 service to meet with NMFS or Fish and Wildlife to determine what needs to be done by way of
7 mitigation. Another parry affected will be the County Public Works Engineering Division, River
8 and Flood because they require the 404 permit under the Clean Water Act. Section 7 is going to
9 be a significant bottleneck in terms of time and effort. A biological assessment is provided by
10 the County including information necessary for the federal service to decide whether or not there
11 needs to be mitigation.
12
13 Brenner questioned whether the money just approved for the Water Plan would cover
14 these costs. Gibson stated that they could cover it at the expense of something else already in the
15 Water Plan.
16
17 Hoag asked whether they would not have to do the consultation if they get a 4(d)
18 exemption for standard activities. Gibson stated that a section 7 consultation will be required in
19 any event. The question is how efficiently it will be done. A 4(d) exemption could be pulled
20 into a section 7 consultation.
21
22 Gibson continued to state that the NMFS price for risk avoidance requires a substantive
23 salmon program, including a guarantee of implementation, which is a budget and enforcement.
24 They also want monitoring of results and an adaptive management strategy, so if it is not
25 working, it can be rectified.
26
27 Monsen stated that the response strategy is not simply a six -month effort after which they
28 would wait to see the result. Altogether, it will take longer than that. Learning from what he has
29 heard from the Tri- County effort and NMFS, it is evident that Whatcom County has put a great
30 deal of effort into forming the local partnerships with the tribes, cities, and other stakeholders. In
31 that relation, Whatcom County is far ahead of the Tri - county group. This will sustain the
32 decisions that will occur collectively. Whatcom County is at par with Pierce County regarding
33 the relationship with the State. A salmon recovery program evolves into a Puget Sound activity.
34 There isn't anyone in the Puget Sound, including NMFS, who understands what the relationship
35 with the Puget Sound ESU should look like or how it will happen. The County is behind with
36 the rest of the relationships in the Puget Sound. Whatcom County is behind Tri- county but
37 ahead of most of the other counties in the State in forming a relationship with NMFS and the
38 United States Fish and Wildlife Service (USFWS). The tribes are ahead of a lot of folks when it
39 comes to a relationship with NMFS and understanding their expectations. They are a valuable
40 partner to have. Right now it is hard to envision a relationship, since no one knows what the
41 rules are.
42
43 Early actions include proactive programs that lead the County to an effective response.
44 They are sorting out how to communicate that to the federal agencies in a way they understand
45 and accept as adequate or better. He showed slides showing fish barriers. The County has been
Special Committee of the Whole, 4/15/99, Page 8
I replacing culverts in areas that they are already working for road maintenance. More recently,
2 there has been federal funding to remove barriers.
3
4 Sutter questioned whether this would be an example of where the County would receive a
5 4(d) rule exception for an incidental "take." Monsen stated that it is. As long as the County is
6 doing best management practices in controlling sedimentation during the construction, the long
7 term effect of the project is positive and would therefore be exempt.
8
9 Brenner questioned whether an incidental "take" is short-term. Gibson stated that 4(d) is
10 the short term. Under an HCP, there is a certain amount of incidental take built in, but the
11 overall program more than mitigates for it.
12
13 Milne stated that those programs could go 25 -100 years. 4(d) rules are programmatic and
14 HCP is the project.
15
16 Monsen stated that a significant issue is that these activities have been exclusively
17 addressed through the road fund. At this point, the County has not tapped into special funds for
18 these kinds of activities. They have been looking into the legal restriction of the use of road
19 funds on this project if it does not have a direct impact on the right -of -way. There will be joint
20 projects between the flood district, County road, and adjacent property owners in order to
21 maintain something that is stable.
22
23 Brenner questioned the amount of culverts in the County that need to be done.
24
25 Dick Prieve, Public Works Department Maintenance and Operations Assistant Director,
26 stated that there are 3,300 culverts in the County. They did not inventory the culverts for age,
27 inlet problems, or fish passage. The amount that needs to be redone depends on the standards
28 that are used. They could be required to replace up to 50% of the culverts. The County is
29 getting into large culverts and questions the impacts downstream.
30
31 Monsen stated that the logical sequence is to remove the lowest barrier in the basin, not
32 the one at the top. Regarding road construction, there will be a requirement to do biological
33 assessments if there are federal funds or a federal permit involved. The County approach is to
34 evolve into doing biological assessments on all projects as a normal practice. Those should
35 become easier as they learn how to do it procedurally. However, it could be a problem for the
36 road projects scheduled in the next 1 -2 years as they are learning the rules that have not even
37 been written.
[c11:a
39 (Clerk's Note: End of tape one, side B)
40
41 They have to have a project that qualifies for federal funds and is designed for
42 completion by mid - September. This money is not going for culvert projects. It is road
43 reconstruction.
44
45 Hoag questioned what projects will have revised scopes and mitigation. Monsen stated
46 that they are talking about flood as well.
Special Committee of the Whole, 4/15/99, Page 9
2 Monsen stated that there are 33 sites where they need to plant trees. They have
3 completed 5 -6 of the sites.
4
5 Hoag asked if a tree planted among riprap would eventually pull out of the rock as it
6 grows.
7
8 Paula Cooper, Public Works Engineering Division, stated that they are planting willows
9 that wouldn't grow very much. She described a vegetative geo- grade, where historically they
10 would have rocked to the top of the bank. Now they only rock to the high water mark, where the
11 high velocity flow is.
12
13 Monsen continued to describe various slides. The County is learning now to apply ESA
14 when making project decisions. Many projects are going to have to have an okay from the
15 federal government. They have already heard about reviewing the land use regulations. They
16 are also looking at a joint venture with the cities about the projects they have that may influence
17 salmon recovery. The recent federal funding request looks promising. The money should start
18 moving in a couple of weeks. He will come back and discuss the bottom half of the project list,
19 which still needs to be prioritized, with the Council members. They have been looking for
20 relationships in which to follow someone's coattails. Whatcom County can use their work and
21 decide whether their work is beneficial to the County. The best example is the State Department
22 of Transportation (DOT), which is a State agency that has better access to NMFS. Habitat
23 assessment is an activity within the federal funding. Whatcom County is looking for
24 opportunities to gather information. They are now having discussions with the Whatcom Land
25 Trust to look for opportunities for land acquisition that will need protection.
26
27 Sutter questioned whether habitat assessment is also a part of the State Engrossed
28 Substitute House Bill (ESHB) 2496. Monsen stated that there are activities relative to habitat
29 assessment in ESHB 2514. ESHB 2496 is a project -based process. They must continue doing
30 habitat assessment to become eligible to apply for funds through ESHB 2496.
31
32 Monsen stated that another challenge is to create an effective public involvement and
33 education program.
34
35 Brenner stated that a lot of this can be done and funded through the Water Plan process.
36 Monsen stated that everything he is speaking of is in the context of previously approved funding.
37
38 Sutter stated that she wanted to question the four areas of focus that includes fish passage,
39 stormwater management, regulations and incentives, and water resources. A great problem is
40 stormwater management in relation to fish populations, which has the least amount of money
41 allocated by the Governor's budget, the Democrat's budget, and the Republican's budget. She
42 questioned how they justify that. Monsen stated that the answer he received to that question was
43 that counties are already dealing with stormwater, so they won't provide more money. They
44 don't understand that the majority of the counties only have road departments, which is the
45 closest thing they have to surface water management. Road departments convey water, they
46 don't manage it.
Special Committee of the Whole, 4/15/99, Page 10
2 Sutter asked about the ocean cycles, and whether it is cyclical and can be predicted.
3 Campbell stated that it is. There have been weather patterns that create shifts and conditions.
4 Everyone is hopeful that they are entering into a pattern of cooler ocean conditions, which will
5 mean more rain locally.
6
7 Sutter stated that she is afraid that they will restore the fish populations, then they will
8 again be over - fished and the jurisdictions will have to go through the entire process again.
9
10 Dawson asked what the appropriate harvest level is if they don't address the number of
I 1 fish. Campbell stated that it has to do with mortality of the fish at certain life stages and the
12 percentage of fish that survive. On average, they are losing 95 -97% of the fish eggs that are laid
13 in a condition of extreme scouring. Once the survivors are in the marine water, they are losing
14 another 2% of them. The Canadian harvest is 50% of those survivors. The situation is that there
15 is not enough of a self - sustaining population.
16
17 Brenner questioned how often there is an extreme scouring. Campbell stated natural
18 events are on a 20 -year cycle historically. Today, those events have gone from every 20 years to
19 every 5 -10 years due to the increase in stormwaters, land use, and forest practices.
20
21 Brown disagreed. In Whatcom County's history, some of the hills were bald and they
22 had good salmon stock. In the Skagit River, there would be extreme scouring if the dams were
23 removed. Campbell stated that, in any percentage of mortality, the very first has some of the
24 greatest effect. If they can improve the habitat, all the percentages down the line that get higher.
25
26 Brown stated that Oregon fish biologists have stated that 350 million fry will go into the
27 ocean and less than 1 million will come back.
28
29 Imhof stated that it is about 2% that come back. He questioned the amount of fish that go
30 down the Nooksack River. The County has some control of how many come down the river
31 through its land uses, but have no control how many go back up the river. Last spring, he found
32 49 nets in the river and over half were abandoned with rotten fish. He questioned whether this
33 was being addressed. It will make a significant impact immediately. Most of the plans are for
34 upstream locations. A critical part of recovery is the estuary. He questioned the plans for
35 estuarine areas. That is where they will improve the survival percentages. The County may be
36 concentrating too much on areas up river. Also, the County should buy -out the fishers, both
37 commercial and tribal, for four or five years, to evaluate where they are at. All of the activities
38 are habitat oriented. He is not convinced that habitat is the worst culprit. Campbell stated that
39 everyone is feeling the same way. NMFS has to look at all of the issues. The County hears
40 about habitat because that is the County's responsibility. If harvest is taken completely out of
41 the picture, they wouldn't recover the runs if there weren't also improvements to the habitat as
42 well. It is a total comprehensive picture. It is not just one person's issue.
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44 Hoag disagreed. Even with 97% die -out in fresh water, the remaining that are available
45 to spawn would be adequate. If they fixed the harvest and the predators, they would be able to
46 solve the problems. Campbell stated that any improvement along the way would be beneficial.
Special Committee of the Whole, 4/15/99, Page II
2 Hoag stated that the numbers look very hypothetical. Campbell stated that they are.
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4 Hoag stated that hypothetical numbers are worthless. Campbell stated that the Columbia
5 River has 40 -50 years of data. If they change the harvest rate by .5 %, then they would have
6 phenomenal numbers of fish. However, there is a tremendous amount of loss of habitat in that
7 system.
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9 Hoag stated that NMFS has had a listing on the Columbia for a long time. They are not
10 dealing with predators and harvest. She was not comfortable leaving that up to NMFS. They
11 have not been terribly successful in the things that they have been handling. In order to represent
12 the local constituents, they have to change what they can and also lobby in areas where they
13 don't have jurisdiction. They can have the best habitat in the world. If there are no returning
14 spawners, it doesn't do any good. Campbell agreed.
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16 Hoag spoke regarding salmon buy -out. She questioned whether Spring Chinook were
17 being harvested at all by anyone. Campbell stated that they are.
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19 Hoag stated that the Tribes stated that they haven't harvested Spring Chinook for 15 -20
20 years. They are hearing conflicting testimony as to whether anyone is harvesting Spring
21 Chinook. Campbell stated that, when the Spring Chinook return to the river, they are described
22 by the season when they come back. In the mouth and bay of the river, the Tribes have not been
23 fishing Spring Chinook. The Tribes have taken a policy not to do that.
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25 Hoag questioned whether sports fishermen are fishing for Spring Chinook. Campbell
26 stated that it is a seasonal thing. They are targeting the later fish. People sport fishing in the
27 ocean won't know the Spring Chinook from a Fall Chinook or from which system the fish have
28 come. They are all out in the system together and being harvested.
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30 Imhof stated 60% of a fisher's catch must be thrown back because it is not what they are
31 fishing for. The fish are dead when they are thrown back.
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33 Hoag questioned whether there are any legal restrictions against fishing on the river. She
34 also questioned whether sports fishermen are allowed to take Spring Chinook at this point.
35 Campbell stated that he was not certain.
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37 Hoag asked if the Spring Chinook would be helped if there was a ban on fishing of any
38 type of Chinook. Campbell stated that they would be helping them. There would not be any
39 competition between the Spring and Fall Chinook. They spawn in different areas and come in at
40 different times. Their strategies for dealing with fresh water are different.
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42 Hoag stated that she heard the Fall Chinook were spawning over the top of the Spring
43 Chinook and were tearing up the reds. That was a part of the problem. Campbell stated that it
44 was actually very rare to lose fish because of spawning on top of each other. Typically, Spring
45 Chinook go higher up in the basin. They come in sooner and go farther up stream.
46
Special Committee of the Whole, 4/15/99, Page 12
I Hoag questioned Campbell's opinion of a five -year buy -out on salmon fishing. Campbell
2 stated that, first, there will be more fish in spawning grounds. He wanted to wait and see what
3 the NMFS fishing program will be. Perhaps they will exclude harvest.
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5 Hoag questioned whether there is a downside to a buy -out. Campbell stated that
6 biologically there is not.
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8 Hoag asked Gibson whether anyone is looking at the County's current regulations to see
9 if they need to be changed to better protect the salmon. Gibson stated that he did not perceive
10 that was currently happening.
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12 Monsen stated that their review is more general in nature at this point. The focus is to
13 make sure the County understands what enforcement they should be considering within existing
14 regulations, rather than focusing on what changes may need to occur.
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16 Hoag stated that she was concerned that zoning was not protecting the salmon. There
17 was a recent rezone request before the Council that had a salmon- bearing stream running through
18 it. The petitioners requested the land be rezoned from Agriculture to Light Industrial. The
19 County Council approved the request. She questioned the effect of the rezone on the protection
20 of the salmon. National Marine Fisheries Service (NMFS) was not excited about Pierce
21 County's plan. Whatcom County has a species that is threatened right now, and they got to that
22 point because of a history of years of not doing things correctly. Currently, the County has not
23 been able to undo what they have done. If the County only submits what is currently on the
24 books...
�►
W
26 Gibson stated that it was the Council who approved the rezone and questioned the
27 implications to the fish.
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29 Hoag stated that salmon needs to be a priority in zoning changes. Planning and
30 Development needs to have a process to screen for that.
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32 Dawson stated that farming is more detrimental than industrial zoning.
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34 Monsen stated that the NMFS lack of enthusiasm with Pierce County was based on the
35 real -life performance of regulations. Whatcom County can't yet describe how it has performed.
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37 Hoag stated that the County regulations are not being enforced. She questioned what the
38 County is doing that is any different than in the past. One of the newly hired enforcement people
39 quit out of frustration at all the red tape and lack of support. Monsen stated that he can't address
40 that currently, but they have to find a way to talk about it. He knows that the County must show
41 it is performing. To show performance, the County has to know what is going on out there and
42 enforce regulations.
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44 Hoag questioned Milne about how stakeholder involvement was accomplished in the Tri-
45 County effort. Milne questioned whether Hoag meant how the Tri- County effort plans to
Special Committee of the Whole, 4/15/99, Page 13
I accomplish it in the future. Hoag clarified that they haven't involved the stakeholders at this
2 point.
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4 Hoag stated that livestock watering has been brought up a number of times. They've
5 asked for data, but haven't received any. The picture of a cow in a stream doesn't give a person
6 good feelings, but she grew up in an area where range cattle grazed. There were very productive
7 streams running through that area. There were deep pools. Yet, she keeps hearing that cows
8 should be kept away from the stream. She questioned whether they had any data. Campbell
9 stated that the Forest Service has published extensive data on stream conditions before, during,
10 and after livestock watering. There is a third party lawsuit in Oregon that refers to those issues.
11 There is a lot of information of that nature. He believed that it is a matter of scale. Most of the
12 recommendations have to do with trying to grow a riparian zone that will keep them in specific
13 areas. A recommendation is for conservation easements.
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15 Hoag asked about whether the HCPs under the ESA provide the County with liability
16 protection. Gibson stated that HCPs have been used most frequently in the area of timber. An
17 HCP in a complex, natural system with a high level of human intervention is an unknown. It is
18 very difficult to talk about what an HCP will do in an urban /suburban/agricultural/rural setting.
19 There are so many variables.
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21 Hoag asked what an HCP consists of Gibson stated that it establishes requirements of
22 the use of best management practices over long periods of time, with mitigation measures that
23 will protect and enhance habitat. Because a plan is sufficiently sound, they would put up with
24 incidental "takes."
M
26 Hoag asked whether the County can develop HCP plans for agriculture, for example.
27 Gibson stated that any HCP will have adaptive management.
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29 (Clerks Note: End of tape two, side A)
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31 Gibson continued to state that the County should do an inventory related to the listed
32 species and demonstrate that there is no impact of activities on the listed species.
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34 Imhof questioned why the County would put together an HCP for the farmers if the
35 County has no control over what the farmers do.
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37 Hoag stated that the County is the lead entity on ESA. The citizens of the County are
38 looking to the County to direct them through ESA. If the County can go to the farmers and
39 provide the farmers with options, it would serve them well. She wanted to know what the
40 options were. The HCP sounded like the best vehicle for any government entity because of the
41 affordability and ease in getting through the bureaucratic review.
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43 Brown stated that is because they can change the rules at any time.
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45 Gibson stated that he suggested looking at that within the context of a number of other
46 things.
Special Committee of the Whole, 4/15/99, Page 14
2 Dawson questioned Campbell about whether he would support the County's effort to
3 establish a meander corridor along the river. Campbell stated that he would.
4
5 Brenner listed a number of questions. She asked for more clarification on incidental
6 "taking." Also, she suggested working with other counties on the upper Puget Sound on the
7 initial response plan. In addition, she questioned whether NMFS would allow the County to do a
8 limiting factors evaluation. She also questioned where the Oregon plan is at this point. She
9 requested clarification on the concept of breaking out the 4(d) rules by discipline, such as roads
10 and also on the regional 4(d) versus local 4(d). She believed that there is Conservation Futures
11 money, road funds, and Water Plan money. She hasn't heard of any other local funding, and
12 questioned whether those were the only sources. The last item was one of concern. The federal
13 government's responsibility is to properly maintain utility areas throughout the County along
14 streams, and they should also disclose the use of toxic substances.
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16 Monsen stated that they are attempting to get a foundation of where the County is today.
17 He is asking the Council to capture those issues and priorities that they would ask administration
18 to focus on, especially in preparation of the year 2000 budget. It is a risk management issue as
19 well as information needed to make decisions. This is from a habitat standpoint. They are
20 expected to review and revise operations relative to ESA, and be good stewards of the legal
21 authority the County has of land use. There is a substantial expectation that the County will also
22 measure effectiveness and results. Depending on those results, they will make the appropriate
23 adjustments. Those adjustments will be based upon best available science. Ultimately, science
24 is a tool that will be used for significant elements of this decision - making process. As a
25 governmental entity, the County has an opportunity to do protection and restoration projects,
26 play a role in managing local, state and federal money, and can take different courses on how to
27 prioritize activities relative to risk management. The Council must also decide at what level the
28 County lobbies regarding harvest, hatchery, and hydro issues. The County acts in three
29 capacities, as an unincorporated government (land use), as a regional government (flood district),
30 or as a partner (the ESHB 2514 process). He asked that the Council help decide where the
31 County should be placing its emphasis, especially in preparation of the 2000 budget.
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33 Dawson stated that one of her priorities includes acquisition and construction of side
34 ponds for acclimation and wintering areas.
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36 Sutter stated that one of the first things that they need to do is make an evaluation of all
37 of the projects and efforts related to ESHB 2514, ESHB 2496, ESA response, and other things.
38 They need to evaluate where there are overlaps and gaps, and determine how to eliminate
39 overlaps and fill in the gaps. They should not waste resources by duplicating efforts.
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41 Hoag stated that they need to get the stakeholders together and have discussions with the
42 various groups to accomplish planning for specific salmon recovery. They also need to lobby for
43 additional funds and consideration of predators and harvest as important factors. She questioned
44 whether a net stretched across a river could be addressed through the land use code. Monsen
45 stated that they could not, but they could address it through the partnerships. It is a project being
46 funded with the initial federal money.
Special Committee of the Whole, 4/15/99, Page 15
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Hoag questioned whether they are confirming the effects of the nets or getting the nets
out of the water. Monsen stated that they are doing both. Under current law, it is illegal to get
the nets out.
Hoag asked if it is legal to have nets in the river when the Spring Chinook are running.
Brown stated that there are no laws against the tribes having them in the river.
Monsen stated that nets can be in place, but some of the regulation is based on tribal law.
Hoag asked that nets be added to the list.
Sutter stated that they need to hire or contract for the Public Information & Education
(PIE) Coordinator so that someone can begin lobbying for the public's buy -in and participation.
Brenner stated that they need to have cost estimates so that people understand what this is
going to cost. There should be goals and benefits to inform the stakeholders before the County
gets started.
Brown stated that they can't have an estimate until they know what they are going to do.
Monsen stated that part of the purpose of this meeting is to get a sense of priority
direction, which would enable them to develop budgets, costs, and alternatives.
Brown stated that the County's habitat responsibility is the major key to the problem.
With that in mind, his priority would be to begin looking for County purchase and acquisition of
habitat areas, to be used in the future.
Imhof suggested purchasing an easement instead.
Hoag also suggested a lease.
Brown stated that, in some places, they need actual ownership. They should also
prioritize flood control projects, even though they can't get projects approved. The County may
have access to flood control projects where they create an off - channel portion to support
spawning and rearing activities. In addition, he needs a river marker map.
Brenner stated that her priorities are to coordinate responses to eliminate duplication of
efforts, evaluate what is already being done, work with other counties and tribes, work on culvert
replacement, and determine by survey the actual support that exists.
Brown suggested identifying and acquiring long range water storage facilities to mitigate
flooding and put water into the Nooksack during certain times.
Craig MacConnell, Washington State Cooperative Extension, listed the Council
members' priorities.
Special Committee of the Whole, 4/15/99, Page 16
2 (Clerk's Note: Council member Brown left the meeting)
3
4 Hoag suggested less bureaucracy and more work on projects. Regarding the
5 stakeholders, she suggested a group including fishers, farmers, and others get together to give
6 their ideas for projects. She also suggested a fish buy -out and a salmon stamp in which the
7 money would be earmarked for restoration projects or acquisition of riparian corridors.
8
9 Sutter suggested things to think about. One is the idea of working with other counties in
10 the north Puget Sound region. It might be good for certain activities, but not all. The Nooksack
1 I River is entirely contained within WRIA #1. The County doesn't share jurisdiction with any
12 other counties. Also, the Nooksack River has a biologically distinct species of Spring Chinook.
13 There could be some problems in doing joint planning with other counties in the Puget Sound
14 area because there is no connection. Regarding public process, the County could be divided up
15 on a sub - watershed basis rather than a specific industry. Then, the people who work and live in a
16 particular watershed can be involved in their area.
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18 Hoag agreed with Sutter about working with other counties. However, it is important that
19 this is a local effort that reflects the needs of the people of Whatcom County. Also, a specific
20 group of people, such as farmers, can very well speak to what works and what doesn't work for
21 farming. If there are people in the group that don't know about farming, but are a part of the
22 decision - making process on buffers for a farm, then there is a problem.
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24 Sutter stated that those people need to work together to understand each other's issues.
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26 Hoag stated that comes later. They need to get the input separately.
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28 Imhof stated that method would make things too divisive. He liked the sub - watershed
29 area idea. Neighbors can talk to neighbors.
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31 Brenner stated that it was not her intent to do a regional plan. Her intent was to,
32 wherever possible, collaborate with other areas to save money. The water areas are different, but
33 Whatcom County shares similar problems with other counties.
34
35 Monsen stated that, regarding resource allocation, they need to discuss costs and risk
36 management. They need to determine where to focus energies and where to save resources for
37 later. Prioritization of the activities is important to create scope, financial implications, and
38 opportunities with other entities.
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40 Imhof stated that, regarding risk management, the County needs to take the middle of the
41 road. They can't do nothing, and they can't go through the HCP process, which is very
42 expensive. As things change, the County can adjust. Everyone in the State is doing some
43 version of the same thing. Whatcom County needs to keep its eyes open and watch what they
44 are doing.
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46 Brenner suggested making a list of priorities and then ranking them.
Special Committee of the Whole, 4/15/99, Page 17
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Monsen stated that they want all the priorities listed in sequence of importance.
MacConnell stated that some of the listed priorities could be integrated. There are some
that are more specific than others. The priorities should be of equal weight. They will work on
the list, then forward the list to the Council for ranking.
Hoag stated that they need information regarding the amount of time the County has
available. Campbell stated that NMFS plans to create a final 4(d) rule in the fall of 1999. If they
create a final 4(d) rule, the County will be liable for a "take" at that point. They need something
in place to deal with those issues by fall.
Monsen stated that they should not forget about the 4(d) rules that will be issued this
spring for Bull Trout.
Gibson stated that the Bull Trout final listing will occur mid -June. The "take" provisions
will then go immediately into effect. Subsequently, they may issue special 4(d) rules that
provide for exemptions.
Sutter questioned the location of the Bull Trout and stated that it is mostly on federal
land. Gibson stated that the entire main stem of the Nooksack is viewed as habitat for Bull
Trout, primarily passage in the lower portion.
Hoag asked for a priority list for Bull Trout and for Spring Chinook. The spawning
issues are going to be different. Monsen stated that the issues and priorities generally apply to
both species. They need to recognize that there may be some risk management issues.
Hoag stated that estuaries should be included.
Imhof stated that they need partnerships. There can be partnerships with the owners of
the land in the Nooksack and Red River estuaries to improve the estuary areas.
(Clerk's Note: End of tape two, side B)
There was discussion about forwarding more comments and suggestions to MacConnell.
Monsen stated that priorities should be done parallel to each other if possible.
Imhof stated that they would have to develop a program, once the priorities are
established. The program will continue to evolve.
There was discussion regarding the creation of the priority list.
Dawson stated that the Council members will get all of their suggestions to MacConnell
by Wednesday, and MacConnell will have a list prepared by Friday.
Special Committee of the Whole, 4/15/99, Page 18
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Monsen stated that he wanted direction regarding priority order of projects #6 through
#10 on the Salmon Recovery Project List.
Dawson stated that they should give that priority list to Monsen by Tuesday.
Hoag questioned whether they could substitute a new project for one on the list. Monsen
stated that she could.
ADJOURN
The meeting adjourned at 4:20 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on , 1999.
ATTEST: WHATCOM COUNTY COUNCIL
W14ATCOM COUNTY, WASHINGTON
Dana Brown- Davis, Council Clerk Marlene Dawson, Council Chair
Special Committee of the Whole, 4/15/99, Page 19