HomeMy WebLinkAboutPublic Works December 8 1998I WHATCOM COUNTY COUNCIL
2 Public Works and Capital Projects Committee
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4 December 8, 1998
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6 The meeting was called to order at 1:30 p.m. by Committee Chair Barbara Brenner in the
7 Council Chambers, 311 Grand Avenue, Bellingham, Washington.
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9 Also Present: Absent
10 Marlene Dawson None
11 Tom Brown
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13 COMMITTEE DISCUSSION
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15 1. DISCUSSION REGARDING COUNTY POTENTIALLY CONTAMINATED SITE
16 INVENTORY AND CLEAN -UP (AB98 -372)
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18 Regina Delahunt, Health and Human Services Environmental Services Manager, stated
19 that the speaker from the State Department of Ecology (DOE) is the statewide coordinator for
20 their site hazard assessment program. He will present information on their program for grants
21 for local health jurisdictions. He will also talk about programs occurring in other counties.
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23 Michael Spencer, Washington State Department of Ecology, was with the Toxics Clean
24 Up Program. (Handouts on file.) Before Initiative 97A came into effect, they built a list of sites
25 throughout the state called the Site Information Sytem (SIS) list that are known or potentially
26 toxic. Over the years, they tried to address all of the sites. They came up with a method called
27 the Washington Ranking Method to prioritize site hazard assessment. The State Toxics Clean
28 Up Program came into effect in 1989. Funding was broken out into State and local government
29 funding. It has taken until the mid- 1990's to get that local funding in the hands of local
30 government. Typically what happens is the Environmental Protection Agency (EPA) goes after
31 the biggest sites, such as the superfund sites. The smaller sites don't get addressed until they get
32 to a certain point. They have to become assessed and put on the ranked list by the State
33 Department of Ecology.
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35 Eleven or twelve counties are currently participating. The grants are for doing the site
36 hazard assessments and investigations. In the site assessment process, there are pre- remedial and
37 remedial activities. Remediation means cleaning up something. The Health Department
38 participates on site discovery, initial investigation, and site hazard assessment. They then work
39 with DOE to do hazard ranking. Then, Ecology does prioritization and clean -up. The health
40 departments throughout the State have addressed 369 sites on Ecology's list. 60% (220) became
41 ranked sites. The others were determined not to be a problem.
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43 Brenner questioned whether this was the total to date. Spencer stated that it is. This is
44 only the grant funded counties.
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46 Dawson questioned whether Whatcom County should be applying for these grants to get
47 help on local sites. Spencer stated that they could to receive grants, equipment, and training to
48 address the sites.
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Public Works and Capital Projects Committee, 12/08/98, Page 1
I Brenner questioned whether the County could contract out some of the services if they
2 are funded by the grant. Spencer stated that they prefer they didn't contract out.
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4 Brenner questioned whether the grant money pays for the additional staff. Spencer stated
5 that the grant doesn't fund additional staff. The funds are to be used so the County Health
6 Department staff can handle the complaints themselves. It is a reimbursable grant. Whenever a
7 staff person does any work under this grant, all their expenses can be paid for by the grant.
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9 Dawson questioned whether the County has someone on staff that can get a copy of the
10 grant applications that the other counties have used.
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12 Delahunt stated that the County applied for and received the grant in 1993 for $100,000.
13 Then they had a problem determining the Full Time Equivalent (FTE) employee level, so the
14 County did not proceed any further with the grant. Discussions regarding contracting out stalled
15 the process. It is 100% funded by the state. She could provide the grant packet to the Council
16 for review.
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18 Spencer stated that another county hired a full time FTE on the condition that if the
19 funding were to be removed, then the position would be removed. The goal is to get someone in-
20 house to deal with the items and develop in -house expertise.
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22 Nelson questioned the site at the Everson - Goshen road and the amount of sites that the
23 Whatcom County Health Department is aware of currently. He clarified that the County would
24 have training and make the evaluations.
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26 Nelson questioned whether most of the sites were private property. Delahunt stated that
27 they are.
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29 Nelson questioned whether the owners have been notified. Spencer stated that they have
30 and they need to do a site hazard assessment. It is the responsibility of the property owner to
31 clean up.
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33 Delahunt stated it is possible that there are not any problems at a site. In that case, no
34 further action would be recommended and the site would be removed from the list. It is a benefit
35 to property owners if an angry neighbor filed a complaint.
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37 Brenner stated that a property owner of one site on the list who didn't know what to do
38 contacted her. She emphasized working with the property owner on what they need to do to be
39 removed from the list.
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41 Brown questioned whether the training that is provided is specific to help the inspector
42 deal with the property owner in advising what funding may be available. Spencer stated that is
43 included, and once or twice a year he has a meeting with people to discuss different aspects of
44 the program.
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46 Nelson questioned some of the counties that are involved. Spencer stated that not all of
47 the counties in the state are involved. A county is not involved if they don't have any sites or if
48 their sites have been cleaned up. The County makes a recommendation to Ecology and then
49 Ecology adds the site.
Public Works and Capital Projects Committee, 12/08/98, Page 2
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Brenner questioned whether the local jurisdictions are trained to train the citizens to do
clean up. Spencer stated that they act as a conduit for technical advice.
Brenner stated that she wanted a directive that property owners understand their
responsibility without making them feel threatened. She questioned whether there was any grant
money available to a private landowner for clean up. Spencer stated that there is not.
Delahunt stated that one local advantage is that the Health Department can help the
citizen through the process.
Brown questioned whether the training would give the Health Department the expertise
to help the property owner set up a system for clean up. Spencer stated that it would. The
Health Department would give the landowner the technical assistance to stop them from what
they are doing and advise them of a better way to do it.
Dawson moved to renew the Health Department's efforts to pursue the grant for
hazardous waste clean -up.
Brenner stated that this would be a recommendation to the full Council.
Delahunt stated that she just wanted direction from the Council.
Motion carried unanimously.
Brenner questioned how long the program has been in place. Spencer stated that he has
been pushing it since 1992. The Model Toxic Control Act went into place in 1989 and it was
1991 by the time the program was established. Once they demonstrate a year or two of
successful work, they can apply for a two year grant to save paperwork.
Dawson suggested handling item #5.
Brenner concurred.
(Clerk's Note: The committee moved to item #5)
2. ORDINANCE AMENDING WHATCOM COUNTY CODE 24.06.030, SOLID WASTE
DISPOSAL STANDARDS, IMPOSING LIMITS ON ACCEPTANCE OF
INFECTIOUS WASTE (AB98 -412)
Brenner distributed the Township Environmental Protection Ordinance from
Pennsylvania. One of the items in the proposed engineering study to be presented at the evening
regular Council meeting was a statement by an applicant that his company has not had any
felony convictions, fraud, etc. It is also appropriate for counties to make determinations about
who can safely do business in the community. This ordinance doesn't have anything to do with
the Medical Waste Task Force. It has to do with who does business in Whatcom County. She
requested that the committee members' review the document. It is more stringent than she wants
to go, but it is a good compromise. Also, regarding the taxing issue, the County has a right to
tax the different waste streams, which has nothing to do with the Medical Waste Task Force.
Public Works and Capital Projects Committee, 12/08/98, Page 3
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Their charge is medical issues, not taxing issues. They can pull the third item from the agenda,
regarding setting limits. She wanted to go forward with those ordinances. These two issues are
taxing issues, not medical health issues.
Brown stated that he read the Township Environmental Protection Ordinance and
believes it may be appropriate to discuss further. Regarding the fee issue, it is appropriate to do
a fee for increased inspection and oversight and testing of the waste stream.
Brenner stated that there was no benefit to Whatcom County to bring more waste in. It is
a benefit to Recomp. The County taxpayers should not have to subsidize the business venture.
Hoag stated that she would like to see more "WHEREAS" included, such as monitoring
risks created by infectious waste processing.
Brenner stated that she would like a work session on both items. The majority of the
Council stated that they would not allow a public hearing on the ordinance limiting business
practices. It will come up later. The other two items have nothing to do with the Task Force.
These two issues are a taxing issue and a County directive.
Brenner moved those items #3 and #4 are brought forward for introduction and request
public hearings.
Brown stated that Whatcom County should not be the infectious waste disposal site for
the Pacific Northwest.
Dawson questioned whether the tax depends on the Task Force. Brenner stated that the
County can tax it because it has the authority to tax.
Hoag questioned the status of the Task Force.
Regina Delahunt, Health and Human Services Environmental Services Manager, stated
that the first meeting of the Task Force is on December 17 at 7:00 a.m.
Brown questioned whether there is a complete membership. Delahunt responded that
there is.
Motion carried unanimously.
Brown stated that other letters could be discussed at full Council.
(Clerk's Note: Committee adjourned.)
3. ORDINANCE AMENDING WHATCOM COUNTY CODE 24.06.030, SOLID WASTE
DISPOSAL STANDARDS, IMPOSING A FEE FOR PROCESSING INFECTIOUS
MEDICAL WASTE (AB98 -413)
4. ORDINANCE AMENDING WHATCOM COUNTY CODE 24.06.030, SOLID WASTE
DISPOSAL STANDARDS, TO INCLUDE PROVISIONS FOR LAWFUL BUSINESS
PRACTICES (AB98 -414)
Public Works and Capital Projects Committee, 12/08/98, Page 4
2 5. REVIEW AND DISCUSSION OF SEVERAL LETTERS TO BE SENT BY THE
3 COUNCIL (AB98 -426)
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5 Brenner stated that she received comments from the Lummi Indian Business Council
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(LIBC).
Dawson stated that there are four letters. The first was addressing the Harbor closure at
Sandy Point. She requested a response from the Council. It addresses how the Sheriff uses the
launch in death investigations and to help the Coast Guard. The refineries use it. It is a harbor of
safety. Commercial, residential, and other recreational boaters use it. There is herring that spawn
in the canal. It doesn't make sense to pull the life -blood of an enlarged marine environment to
enhance what is questionable and leave the area a potential cesspool.
Brenner stated that there was a letter from the Army Corps of Engineers. Brown stated it
was on packet page 129.
Dawson stated that there is a request for a hearing. The Army Corps of Engineers would
have a hearing after the first of the year. There are statutes that state when an area is navigable,
Congress needs to address it. The State Department of Natural Resources (DNR) stated that
there is a 401 certification on clean water that also needed to be addressed. Those are added in
the letter. People are concerned about the actions of the Corps of Engineers. They don't trust
the Corps to use the public process and go through the correct procedures.
Brenner asked Jeff Monsen, Public Works Director, if all canals are under federal
jurisdiction. Monsen stated that he couldn't address that.
Brenner stated that she doesn't want to support it with information that she is unsure is
relevant to the County.
Dale Peterson, 4052 Salt Spring Drive, Ferndale, president of Sandy Point Improvement
Company, stated that he used to be in the Army Corps of Engineers. He is ashamed that they
would block a canal that has been open for 30 years. The County approved their subdivision in
the 1960s. The canal was a part of the subdivision. It provides an amazing marine ecosystem. It
provides 1000 homes. There is a lot of varied recreation as a result of the canal and the access to
the saltwater. It provides revenue to the County because property values will drop if the canal is
closed. It provides a quick response location in the instance of an oil spill. It also provides a
safe -haven for boats.
(Clerk's note: End of tape one, side A)
Peterson continued to state that it is an advantage to Tribal fishers. Some keep their boats
in the canal. There have been times that their boats have broken down. Members of the Sandy
Point community have helped them get into the canal. If erosion is an issue, then there is a
bigger picture. Erosion begins around Cherry Point. In the 1970s or early 1980s, geologists
demonstrated that the drift has been reduced and there has been accelerated erosion. There are
other solutions rather than closing the canal.
Public Works and Capital Projects Committee, 12/08/98, Page 5
I Brown requested clarification about the development at Cherry Point reducing the
2 sediment.
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4 Peterson stated that because of that, they are experiencing more erosion. He requested
5 the County keep the canal open. There should be a public hearing.
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7 Brenner questioned what makes a body of water federal navigable water. Peterson stated
8 that he couldn't answer that question. There are a number of documents that speak on that.
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10 Bernice Bran, 4145 Petos, Ferndale, stated that the harbor is a safe harbor for boats
11 during a storm. They feel that the Tribe is trying to force them into a lease that isn't legal or
12 appropriate. These are navigable waterways. There may not be any tidelands involved here.
13 They need a public hearing. A lease is not appropriate at the time. It needs to be proven that this
14 is necessary.
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16 Earl Baker, 4175 Sucia Drive, Sandy Point Alliance Group, stated that there is a logical
17 and appropriate approach to the issue relevant to the deterioration of the beach. That is to do an
18 artificial restoration. It had been done successfully at Orcas Island. The project has been relayed
19 to the Lummi Indian Business Council. It would be nice to have a cooperative effort rather than
20 blocking off the entrance to the canal. Additionally, the United States and Canadian coast guards
21 both use the harbor when rescuing people from the high seas. Other people use the harbor, such
22 as the Sheriff's office, the Department of Fisheries, NOAH, and Customs and Border Patrol.
23 There are 16 miles between Sandy Point and Bellingham and 16 miles between Sandy Point and
24 Blaine. That is 32 miles without any other safe harbor. There is a marina at Birch Bay, which is
25 close to Blaine. The artificial replenishment of the shore might be something the County could
26 participate in. It is important that the issue be fully explored. He asked that the County support
27 them with a letter, and also requested a time extension so that there may be an Environmental
28 Impact statement.
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30 Brown questioned whether the herring spawn inside the canal. He responded that they
31 do.
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33 Bran stated that a report by Jennifer Belcher, Commissioner of Public Lands, showed that
34 there was spawning up to three years ago. There has been a lot of fishing by the Indians. There
35 is only one place left with herring.
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37 Leroy Dierdorf, Lummi Natural Resources, stated that it is not appropriate for the County
38 Council to involve itself in a private property dispute.
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40 Brenner stated that the Army Corps of Engineers specifically asked for comments by
41 local agencies and officials. The Council was asked to make comments.
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43 Dierdorf stated that it is an artificial channel built by private people for their private
44 interests. They leased the property from the Tribe to get access into the channel. When the lease
45 expired, they refused to renew the lease. They are passing over Lummi property without
46 compensation. It is a private property dispute between the Sandy Point Improvement Company
47 and the Tribe. There was discussion about the long shore drift. That can be remedied by
48 installing a culvert or other similar mechanism. There used to be a lot of shellfish. That would
49 help them put their property into its highest and best use.
Public Works and Capital Projects Committee, 12/08/98, Page 6
2 Brenner questioned whether a culvert would allow boats to go in and out. Dierdorf stated
3 that it would not. It would allow for the long shore drift to continue.
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5 Nelson questioned whether the plan was to put in rock to block off Sandy Point. Dierdorf stated
6 that they would be re- establishing their tidelands.
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8 Nelson questioned whether they needed a permit from the Army Corps of Engineers to do that.
9 Dierdorf stated that was correct.
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11 Nelson stated that the Army Corps of Engineers has requested the County Council assessment of
12 the impacts that action may have. The other issue is the issue with Sandy Point Improvement as
13 to whether or not there is a private property issue. There are two issues that the County Council
14 is dealing with. One is access for ingress and egress. He questioned whether the land is fee land.
15 Dierdorf stated that the land was fee land.
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17 Nelson stated that the fee land would be County land. It becomes a jurisdictional issue
18 between the Tribe and the County. It would be beneficial to work out an arrangement where the
19 tidelands could be affected as well as the ingress /egress of property owners within the area.
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21 Dierdorf stated that there is an offer to re- establish the lease.
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23 Dawson stated that the tidelands do belong to the tribe, however under the rules of
24 navigation, private bedlands have no relevancy when a waterway is navigable. That is the issue.
25 The Corps of Engineers has gone on record to state it is a navigable right -of -way. Regarding the
26 lease, there was a damage right -of -way fee paid. A letter was sent to the tribe in the 1960s
27 acknowledging a right -of -way damage fee that was paid, including $.10 per cubic yard for
28 everything that was taken out in the original dredging. There was one person 10 years later that
29 entered into a lease. There are five property owners groups at Sandy Point that were not party to
30 any lease. This one person was not aware of a right -of -way fee.
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32 Dierdorf stated that the prevailing wind direction is from the south. There is greater
33 chance for a wind damage or tsunami. The marine route is irrelevant. He continued to go
34 through the LIBC response letter (handout of file). There is a long history of harassment by the
35 Sheriff's department of the Tribe when trying to use the area. The County is participating in the
36 taking of Tribal property if they dispute the action because of losing a tax base.
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38 Brenner questioned whether there are other safe harbors available to boats. Dierdorff
39 stated that Birch Bay and Blaine are available.
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41 Hoag questioned whether it is possible to divert the sediment without closing the harbor.
42 Dierdorf stated that part of it is going into the entrance. There is also a shoal building outside of
43 that.
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45 Dierdorff closed by reading again from the letter.
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47 Brown requested a copy of the lease. Dierdorf stated that he would provide him with a
48 copy.
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Public Works and Capital Projects Committee, 12/08/98, Page 7
I Hoag asked about item #6 at paragraph #6 and the Lummi Tribal status. Dierdorf stated
2 that they are not an IRA tribe or an allotment tribe. When the Indian reorganization act went
3 through, tribes decided whether or not they wanted to participate. Lummi decided not to
4 participate. In the Point Elliot treaty, the tribes were assignment tribe. Land was assigned to
5 households. They are an assignment tribe.
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7 Dawson stated that they still have the same requirements as an allotment tribe. Dierdorf
8 stated that in a lot of cases, the allotment would have been assigned to the tribe, but it is not case
9 law at this point. An assigned tribe is the same as an allotted tribe.
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11 Dawson stated that, regarding Clean Sound's lack of access, they are welcome to use the
12 boat ramp at any time, they used to moor their boats inside the marina, but they had to relocate to
13 Bellingham because they did not have 24 hour access. They want to come back into the harbor.
14 That was added as additional information. Regarding harassment, that there is no harassment as
15 long as the Tribe doesn't leave the boats.
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17 Brenner questioned whether the water is considered navigable and whether that is a legal
18 definition.
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20 Dan Gibson, Senior Civil Deputy Prosecutor, responded that it is a legal definition.
21 There are suggestions that the water may be navigable. He did not know what difference it made
22 in this situation.
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24 Brenner stated that she didn't want to get in the middle of a civil argument, however if
25 the harbor has been used as a safe harbor for public boats, then the County has some
26 responsibility. She questioned whether the County was getting involved in private business.
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28 Gibson stated that there are private and public aspects to the issue.
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30 Brenner stated that she wanted to send a letter saying that the County Council recognizes
31 that there are public aspects to the situation and they request a hearing and an environmental
32 impact statement. Furthermore, she would like to see options explored in which the Lummi
33 Tribe can restore the tidelands without closing the canal.
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35 Brown stated that this is similar to cases where roads have been established that are in the
36 public interest. With that in mind, he believed a letter should be sent stating that it should be
37 kept open. The lease dispute is not the County's business. The canal provides a vital public
38 interest and should endorse a public hearing.
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40 Dawson stated that the majority of the Council Members would support the letter.
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42 Brenner stated that she wanted to send a letter that is to the point about what the Council
43 believes the issues are, such as keeping the waterway open, having a public hearing, extending
44 the comment period, ensuring the issues are explored, and including that it is the only safe harbor
45 in 32 miles. She was not interested in getting involved in the private interest development. She
46 would not support it as it is.
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48 Hoag asked for certain sections to be deleted, such as reference regarding the area's
49 Indian character. Also, many other points in the letter have to do with access, marine life, and
Public Works and Capital Projects Committee, 12/08/98, Page 8
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safe harbor. The Corps should address them. They should also leave out information regarding
categorization of the status of the tribe being either IRA or allotment. Items pertaining to the
lease should also be eliminated. Items pertaining to the aquatic life and safe harbor are public
concerns.
Brenner stated that she would support the letter with those items taken out.
Hoag asked for including a request in the letter to try and work toward a resolution that
would re- establish the drift and still keep the harbor open.
Brown moved to forward to the Council with the proposed amendments.
Motion carried unanimously.
(Clerk's Note: Committee moved to Item #2.)
ADJOURN
The meeting adjourned at 3:05 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Barbara Brenner, Council Member
Public Works and Capital Projects Committee, 12/08/98, Page 9