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HomeMy WebLinkAboutNatural Resources October 27 1998WHATCOM COUNTY COUNCIL Natural Resources Committee October 27, 1998 The meeting was called to order at 11:00 a.m. by Committee Chair Connie Hoag in the Council Committee Room, 311 Grand Avenue, Bellingham, Washington. Also Present: Kathy Sutter Absent: Tom Brown COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL PRESENTATION BY DICK DORSETT, PIERCE COUNTY, REGARDING THE ENDANGERED SPECIES ACT (AB98 -383) Dick Dorsett, Pierce County, stated that their work has go on around the tri- county area and the watershed. The drawing in the packet he submitted looked at a recovery plan. Their goal is that their recovery plan is 1. Scientifically sound, 2. legally certain, and 3. Adequately monitored, to avoid citizen lawsuits and federal enforcement. The tri- county area is King, Pierce, and Snohomish counties. Staff groups work on urban, scientific, and other issues. The legal assurance is so the recovery plan is defensible, which is scientifically sound and credible. There are state and local science panels. He emphasized the case of the Loggerhead Turtle vs. another county council. The county was found in violation for allowing vehicles to drive on beaches that harm the turtles. It is not about them causing problems to the habitat. It is about county government. It is important for all to recover the salmon. He encouraged focus on what they are responsible for, which is the operation of the road system, sewer utility, and the regulation of land use and zoning. Those are the kinds of ways the listing would impact them. The clock started February 26. Late in 1999, they expect the listing to come through as a threatened species. He referenced a handout on the Endangered Species Act (ESA) response and how it applies to Chinook. It is a tool used by Dept of Interior that provides flexibility and is they key that they could negotiate with the federal government to develop a recovery plan. They are not going to try to work to avoid the listing because it will occur. They are not going to do a habitat conservation plan (HCP), but will develop a process that jurisdictions in the tri- county area have a framework for developing an HCP. Hoag questioned the agricultural section and voluntary HCP. George Boggs, Whatcom Conservation District Coordinator, stated that they may be appropriate in Whatcom County and certain watersheds. Dorsett stated that they expect an interim 4D rule, which could be changed and modified. Natural Resources Committee, 10/27/98, Page 1 Everyone is making things up as they go along. There has been debate on what a lot of this means. The diagrams on paged of the handout are regarding chinook recovery and hatchery salmon. County funding, programs, and policies were included in the diagram. There is a gap analysis between funded programs and policies. This is where they can make on the ground differences at the county level. The County has an impact in the four H's: habitat, harvest, hatchery and hydro. Their primary ESA objective is genetic viability. Another issue is BOLDT. This is about numbers of fish, whereas the Natural Marine Fisheries Services (NMFS) is about properly functioning systems and conditions. The more issues added to BOLDT requirements of hatchery and harvest, the more issues the counties have that they don't pay for. NMFS says there are not two standards. That is disputed. It is more important to understand that the salmon levels do not make a difference to how the County government must respond. The issue has to do with the state negotiations with the federal government and the tribes. They started the tri- county process approximately one year ago. Recently, they adopted a straw proposal, which is the grid. It is trying to represent a work plan. They look at things to be done, and assign money and full -time equivalent (FTE) employees to put together a recovery plan to justify to the state what they are doing in terms of NMFS. The draft Snohomish County document takes a watershed -based planning document and links it to the elements that the tri- county adopted as a work plan. They have always said that the real action is in the watershed. It is in the watershed that the work will occur. There are still assumptions that developed actions would be liked by NMFS, who would encourage actions to be used throughout the tri- county. Whatcom should pay attention to that. When tri- counties do negotiations and develop actions that NFMS likes, they will encourage similar activities in Whatcom County. He encouraged Whatcom County to work with other agencies and suggested the Association of Counties. The Snohomish County plan links to the now adopted work plan of the tri- counties. The WRIA 10 plan looks at the scope of the plan, status of the fish, science, risk categories, and the impacts for the farms. It does watershed assessments and gap analysis, to develop programs that lead to recovery. Within the urban area, there is an issue of how to do restoration preservation activities within highly urbanized watersheds. The City of Bellevue would take the best available science and figure out practical applications in an urbanized watershed to get the best value for the money. Regarding funding, the presidential budget includes $22 million for Washington State, which is $2 million for NMFS activities and $20 million for watershed activities. Within that distribution, $8.5 million goes into the tri- county area for salmon issues and project work. The rest of the money goes statewide. There is a request for $200 million for the Pacific Northwest and northern California. It is more than a one -year effort, and they need to encourage a multi- year funding plan. A multi -page document from the Northwest Indian Fisheries Commission, which went directly to the White House, is a request for $9 million. There is also a document regarding the distribution of federal funding. The Government Council on Natural Resources has been talking Natural Resources Committee, 10/27/98, Page 2 about allocation of state and federal money. There is a proposal for King County and the City of Seattle has a way of acknowledging the ESHB 2496 process. They are taking advantage of the Government Council on Natural Resources as a vehicle to review plans, to determine whether they are scientifically sound, and run them through the Council for distribution of money. This process was rejected by the governor's office. They will review and approve all projects proposed for funding. His concern was that the state will not abide by the process the tri- cities recommends, yet they are not ready to process funding on their own. The issue is that the money has been appropriated. There is no process for accessing it for salmon recovery. Whatcom County will also want to take advantage of this money. Sutter stated that an issue is the allocation being the 60/40 split. Scientists say 60% is to go toward preservation and 40% should go to restoration. Consensus is that is a poor way to calculate. Dorsett stated that they've asked for funding in the 1999 -2001 State biennial budget request. This gets back to the NMFS requirements and sound science. They need to determine the needed FTEs and money. They realized they weren't capturing all the on- ground staff time. They need to Other counties commented upon the draft State Salmon Recovery Strategy. Each took a different approach. He also referenced an ESA glossary of terms. A lot of ESA is learning the precise elements. For their own watershed plan, they tried to make a document acceptable to all. There is a proposal of using the existing structures, such as review by the Planning Commission. There could be differences between cities, but they won't be dramatic. Individual land surfaces may dictate different situations and requirements. However, the tools should be familiar. They did an inventory of existing land use regulations and non - regulated activities in the watershed. They also sent out 400 surveys, which have been compiled. They include many regulations. The harder part is how to assess whether they are effective. Going back to NMFS requirements and whether those things are effective is one way to assess effectiveness. This is where the legal assurance group comes in. He questioned whether exposure to liability would be created if they try to improve ordinances and if they start assessing whether they are effective. Some people think that, since there is only a proposed listing there is no liability at this point. Even when there is a listing, the liability may not be that dramatic. As they get to applying the recovery plan, that is where liability will accrue if they are not meeting their obligations. Other people disagree. They believe that compilation leads down the path of exposure and liability. Hoag questioned the exposure to liability. Dorsett stated some believe, if liability is the case, then they don't submit their inventory. However, he believed that by not participating, there is risk in not getting coverage under the rule. Brenner questioned whether they could be liable for other liabilities if they do not participate. Dorsett stated that they could. There may be an opportunity for people who will take a free ride, which is different than not participating for legal concerns, only if not fiscally Natural Resources Committee, 10/27/98, Page 3 able. They would not participate because of lack of staff. Everyone is comfortable with that. Hoag asked Dorsett to discuss 4D protection for both the legal entities and for the salmon. She questioned what the County has to do to obtain protection. Dorsett stated that a county issues land use permits. One key thing is that if the county commits a take, including a take of the habitat, then they are in violation of the act, subject to federal enforcement or citizen lawsuits. He believed that with the 4D protection, there will be activities that would mitigate or prevent takes. They would be based on science and the recovery plan. Hoag questioned whether a plan approved by NMFS would be immune from lawsuits. Dorsett stated that they would. Hoag questioned the three sections that address immunity. Dorsett stated that those sections are Section 10 of the HCP, 4D, and Section 7, which is the federal information. Section 7 requires federal consultation. The federal activities are already in place. Hoag questioned explanation of the three protections. Michael Knapp, Planning & Development Services Director, stated that 4D was defined in the glossary. Dorsett stated that his opening memo discussed the 4D rule, Section 10, and Section 7. Other areas of the memo discussed the negotiation process with the federal government and the tribes. Negotiating agencies have not been determined. Hoag questioned whom they have been negotiating with. Dorsett stated that they are still trying to get clarification on how that is done. Not yet a formal negotiation process. (Clerk's Note: End of tape one, side A.) Brenner questioned whether there is protection from frivolous lawsuits, which slow the process. Dorsett stated that it is covered in the existing laws. Hoag stated that they would look for protection from the federal government. Dorsett stated also they need protection from private parties. Sutter stated that the question is whose science is good or the best available science. She questioned whether there was any indication of whose science would be used. Dorsett stated that is a key issue of the State strategy. There are five or more science processes identified and they are not coordinated. That is a shortcoming that needs to be addressed. He was concerned with some of the Critical Areas recommendations in the document. That chapter is en masse. The local tools are important, but they don't want to revisit the Growth Management Act (GMA) processes. On the science question, they could end up with GMA Hearings Boards making ESA calls. They don't want that. Hoag questioned the processes set up and followed to get input from different groups. Dorsett stated that the first thing was conversation with the State. During the first large meeting, Natural Resources Committee, 10/27/98, Page 4 over 100 elected officials showed. The next meeting had over 200 elected officials. A 34 member executive committee was formed. That committee is made up of three at -large representatives and three members from each of the counties. Through that committee, there has been a validating process for the staff group that meets weekly. They work through legal assurances and other pieces. It is very time consuming for staff. The funding committee was successful. Hoag questioned the plan and whether there is a downside, if the funding is not there. Dorsett stated that they've distinguished between a wish list vs. the evaluative component. Dawson questioned the status of monitoring activity on the rivers. Dorsett stated that NMFS would look at implementation and certainty. The actions are substantive, implemented, and monitored. Those are the three components. He didn't know what monitoring would look like, but it had a big price tag. Sutter questioned when they would get a target of habitat quantity. Dorsett stated that NMFS is saying that they are talking about properly functioning systems and conditions. There is NMFS guidance documents on recovery plans that have actual standards. Whatcom County needs to pay attention to issue of negotiation. There are regional tradeoffs within the evolutionary significant unit (ESU). In a scientific way, it would make more sense to pump lots of money in one area to get a reasonable ESU recovery of the chinook salmon. Hoag questioned how they can say the numbers don't count and it is the habitat that matters. If the numbers are up on the species, she then questioned how can they still require the listing. Dorsett stated that they are not as focused on absolute numbers, but more on trends. Sutter stated that the State plan discusses harvestable numbers, which they don't specify. Brenner questioned whether they would have an upcoming workshop. Dorsett stated that there are consultants available. Kathy Bovenkamp, Building Industry Association, stated that she had more information regarding ESA. Hoag stated she would like to look at other plans from other areas. 2. PRESENTATION BY MARY WILKOSZ, WASHINGTON CONSERVATION COMMISSION, REGARDING SALMON HABITAT RESTORATION (AB98 -384) Mary Wilkosz, Washington Conservation Commission, explained a portion of ESHB 2496, the Salmon Recovery Act. It also creates a process for generating scientific information on a WRIA by WRIA basis. It creates a prioritized habitat project list, which goes back to the State, who prioritizes for funding. She is one of seven regional coordinators. The Act develops a statewide, regionally based habitat recovery process and establishes lead agencies for salmon Natural Resources Committee, 10/27/98, Page 5 habitat recovery efforts. In the priority process, there are three entities. The local level is the lead entity, which are the counties, or joint county- tribal entities. Whatcom County is in the process of applying for lead entity, and then they are responsible to create a committee of stakeholders, which would then create a project priority list. She creates technical advisory groups in each WRIA to create a limiting factors analysis. It is an inventory of factors, such as land use, that impede the productivity of salmon. It is habitat process based. Once the analysis is complete, it is handed to the lead entities and then used to create a critical pathways analysis. The analysis and the project list is then provided to an interagency review team at the State, who create a priority for funding, which is submitted to the Governor and State legislature. Limiting factors are conditions that limit the ability of habitat to sustain fish populations. The Endangered Species Act (ESA) focus is on chinook. ESHB 2496 is more proactive, to focus on salmonid stocks. At this time, they include other species. Limiting factors focus on fish passage barriers and other habitat features. Technical Advisory Groups (TAGS) is a process of gathering information and data to produce the limiting factors, which is provided to lead agencies. Another component is that it is based on voluntary sponsors. Project sponsors complete the habitat restoration projects. The definition of a project includes protection projects, water quality projects, operations, monitoring, and maintenance. There is also education funding. Funding depends on the needs of the watershed. Sponsors develop and perform evaluation of monitoring data as part of the application. Other components of ESHB 2496 are based on existing information, voluntary efforts, focus on habitat, and that funding is on watershed based projects. A technical advisory group is formed in each watershed and can exist without a lead entity in place. So far, there are three identified lead agencies in the north Puget Sound region. There is a process involved for prioritizing protection projects. Preference will be given to an area that contains a salmon species listed or is proposed for listing. If there is no lead entity, then the interagency review team shall rank, prioritize, and dispense funds for habitat restoration projects by giving preference to the projects that provide a greater benefit to salmon recovery, will be implemented in a more critical area, are the most cost effective, have the greatest match for in -kind funding, and will be implemented by a sponsor with a successful record of project implementation. Hoag questioned the limiting factors and whether there is any portion of ESHB 2496 that looks at other than habitat. Wilkosz stated that the document also establishes the Governor's Salmon Recovery office. It is more of a process to generate projects and a funding strategy and uniform accountability at the State level. Hoag questioned whether any funding would be habitat funding. Wilkosz stated that there are other funding sources. This is one path for acquiring funds. This is the main process under ESHB 2496. Brenner questioned whether ESHB 2496 covers changes in the ecology that upset the stocks. Wilkosz stated that they are developing a limiting factors outline. It includes an assessment of historic conditions. They are establishing the historic timeline. A number of the factors that inhibit salmon productivity would be handled through the ESHB 2514 process. There will be a need to coordinate the two processes. Impacts of exotic species and forestry impacts are others. Natural Resources Committee, 10/27/98, Page 6 The technical advisory groups intend to work with existing processes and data and scientists that already have intimate knowledge. Marine mammals are listed as an item in the template. Each watershed has different ranked issues. Hoag stated that the focus seems to be on habitat. Someone needs to look at other issues besides habitat. Marine mammals would be looked at in the context of a habitat, not harvest. Wilkosz stated that this process does not look at harvest, hatcheries, or hydro. Predators would be looked at in the habitat sense. Sutter stated that marine mammals would be addressed through the State Salmon Recovery Plan. There was a brief mention about the impact of marine mammals. People agreed that the issue needs to be addressed. It would be looked at in that sense. 3. ORDINANCE ESTABLISHING WHATCOM COUNTY CODE 16.28, MANURE AND AGRICULTURAL NUTRIENT MANAGEMENT (AB98 -254B) Hoag stated that a few things would be changed between the permanent ordinance and the emergency ordinance. The changes are highlighted or struck. One change that was requested was added language to the buffers, in order to refer people back to the Critical Areas Ordinance (CAO). The permanent ordinance doesn't talk about the rivers and streams, which is covered by the CAO. She suggested "...prohibited. (For additional information regarding buffers on streams, rivers, and other bodies of water, see WCC 16.16)" Roland Middleton, Planning and Development Services Land Use Manager, suggested, "surface water and drainage ditches are prohibited." Hoag stated that some buffers are greater under the CAO. The point to the amendment is to refer a farmer to the CAO for more information. If a farmer has a stream or river on their land, the County would like them to be aware that there is another ordinance that covers that and they should review it. This ordinance is just about the ditches. Buffer sizes are different, depending on the class of the body of water. Sutter suggested using "requirements" instead of "information." Sutter moved to change the language, "...prohibited. (For additional requirements regarding buffers on streams, rivers, and other bodies of water, see WCC 16.16)" Nelson stated his concern for multiple regulations. The community gets upset because they are required to get multiple permits. The Conservation District (CD) enforces the CAO. George Boggs, Conservation District Coordinator, stated they address both CAO, buffer requirements and the manure management ordinance. His office will make sure that the farmers are aware of all regulations. Sutter stated if a farmer has a conservation plan, they are exempt from the ordinance and Natural Resources Committee, 10/27/98, Page 7 certain sections of the CAO. Hoag clarified that a conservation plan does not exempt a farmer from the manure management ordinance. Nelson questioned how this would be administered. Hoag replied that it doesn't change anything. It only makes someone aware, as they read the ordinance, that other bodies of water have buffer requirements in the CAO. Nelson questioned Knapp on whether Planning and Development Services was inspecting ditches and the CAO. Knapp stated that the inspectors deal with both. Hoag stated that he CAO did not address ditches. Nelson stated that the CD would work with the community on their ditches. Hoag stated that it gets administered from the CD. The County enforces the regulations. Motion carried 2 -0 with Brown absent. Hoag state that the other change is on packet page 80, regarding clarification of the T sum 200 temperature scale. Hoag moved to recommend to Council, with the changes. Motion carried unanimously. OTHER ITEMS George Boggs, Whatcom Conservation District, submitted a one -page document on the Conservation Reserve Enhancement Program (CREP). There are some incentives to area farmers. The program is being put together so that the CD will be ready to get it going by January 1, 1999. Mary Wildosz mentioned that they are using the Salmon and Steelhead Stock Inventory ( SASSI). Of concern is the lack of coho as a known in the SASSI report. Sutter asked if Coho is in the Nooksack River. Boggs stated that they are. Boggs stated that the CREP program would be available to provide incentives to landowners in January. The SASSI report is determining which areas will be eligible. Claire Fogelsong stated that there has been a dispute. Hoag asked about the CREP program control over buffers. Boggs stated the farmers would retain control. They just get a rental payment to do plantings and stay out of the area. They apply through the farm services agency. Natural Resources Committee, 10/27/98, Page 8 (Clerk's Note: End of tape one, side B) Fogelsong stated that everything he'd heard is that the County should plan for coho habitat within the Salmon Recovery Plan. People with the money look at coho as soon being listed. Steve Seymour, Washington State Department of Fish and Wildlife, stated that the coho status is unknown. The conclusion is that the stock is probably depressed. It is probably weak and should be listed as critical. They have not been able to reach an agreement with tribes because they are reluctant to list them as depressed. The Skookum Creek hatchery primary production is coho. The hatchery was successful in the 1980's. Lately it has taken a nosedive, probably due to ocean conditions. Regarding the SASSI listings, the State Department of Fisheries could not reach agreement with the tribe on status. It ended up being an unknown status. That status would be changed over the next few years. It is a weak stock. The ESA may or may not be a factor. NMFS knows the coho are very weak. Hoag questioned the impact if they are weak and the tribes are running a hatchery. Seymour stated that hatchery runs mask the population level of the wild runs. Hatchery fish dilute the genetic pool of wild fish. There are the same issues as the chinook. All of that plays into it. Harvest levels are very high on this basin to harvest a surplus of coho, which are hatchery fish. There is an over harvest of the wild fish. The price of coho has been pathetic. The tribal effort to fish has been non - existent. There have been surpluses back to the hatchery. Because of the effort, the harvest level has been down. Fogelsong stated that the designation is still there. Seymour stated things change. The Canadian coho fishing has been down. Hoag asked if the Canadians are listing coho. Seymour responded that they are. Fogelsong stated that they've made an effort to address that this year. Nelson questioned whether there are any programs to increase the runs in California Creek, if that is the issue. Seymour stated there are issues as to which stock is used. They have backed that off because it masks the real situation from the stocks. That was the situation with the stocks. Let the system stabilize and quit fry planting. The tribes also are not fry planting. It will take time to get through the system. Hoag questioned why people can fish spring chinook if it is going to be listed. Seymour responded that there has been a lot of fisheries management to protect spring chinook salmon. They couldn't keep chinook until July. 100% of hatchery fish will be fin clipped to provide recreational opportunities. Recreational fisheries are important for tourism and to bring money in. Things happened to impact the harvest of chinook. There are good numbers in the Skagit and Stilliguamish rivers. Natural Resources Committee, 10/27/98, Page 9 Nelson asked about the Washington Conservation Reserve Enhancement Program (CREP) and the quantity of agricultural lands that would be taken off of the agricultural land base. Boggs stated that has not been quantified. The questions are the rental value and activity allowed. They don't know how much land would be registered. He is waiting for the map. Fogelsong stated that the good thing about the program is that that industry is going to be impacted regardless. The effect of the program is to give them compensation that they really need. Nelson stated that the County needs to have some idea what the impacts are so that the public knows. Hoag stated that the impacts are under the Critical Areas Ordinance. It states that the area can't be farmed within a certain distance of those areas, but the program states that they can be leased out for enhancement activities. Nelson stated that this is an additional 10% for any land identified for agricultural use under Growth Management. Any additional lands as well, are what he is referring to. Boggs stated that it is a total of 60 %, so the rental value would be 160% of the rental rate. Nelson clarified that this is geared just toward buffers and areas that have been identified as protecting of the critical areas. Fogelsong stated that it was just the riparian buffers. Boggs stated that, to be eligible for the program, one would have to have cropland. Pasture is a crop that is marginal, but eligible. The overlay that the land is within, which is designated as an agricultural use in the Comprehensive Plan, gets that additional 10% incentive rate. It is 160% of the rental value set for the area. ADJOURN The meeting was adjourned at 12:50 p.m. Jill Nixon, Minutes Transcription ATTEST: WHATCOM COUNTY COUNCIL Natural Resources Committee, 10/27/98, Page 10 WHATCOM COUNTY, WASHINGTON Dana Brown - Davis, Council Clerk Connie Hoag, Council Member Natural Resources Committee, 10/27/98, Page 11