HomeMy WebLinkAboutSpecial Committee of the Whole June 30 19981
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WHATCOM COUNTY COUNCIL
Committee Of The Whole
June 30, 1998
The meeting was called to order at 8:30 a.m. by Council Chair Robert Imhof in the
Council Committee Room, 311 Grand Avenue
A]-,n prPCPnt-
Marlene Dawson
Barbara Brenner
Tom Brown
Connie Hoag
Kathy Sutter
Absent:
L. Ward Nelson
DRAFT MEMORANDUM OF AGREEMENT BETWEEN THE LUMMI
NATION, NOOKSACK TRIBE, WHATCOM COUNTY, CITY OF
BELLINGHAM, AND WHATCOM COUNTY PUBLIC UTILITY
DISTRICT NO. 1 (AB98 -235)
Imhof stated that the task is to look at the agreement and make changes as appropriate.
He stated that he would like to determine the objectives of Washington State Engrossed
Substitute House Bill (ESHB) 2514 and set goals from that legislation.
Dawson questioned how a memorandum of agreement (MOA) differs from a contract.
Imhof stated that a contract contains penalties for non - performance.
Sue Blake, Planning & Development Services, stated that she has given the memorandum
to Karen Frakes, Senior Civil Deputy Prosecutor, for review. She believes an MOA may not be
as legally binding as other types of documents. People have commented about whether or not
the MOA "meshes" with ESHB 2514. There are some differences, but they are generally similar
in intent. The language in some of the statements, such as the section on Objectives, is different.
The Lummi Nation may be flexible to adjust the language. They had some concerns with ESHB
2514 that they wanted to address in the MOA.
Sutter stated that one concern is that the MOA only addresses assessment. It doesn't
address planning. The Lummi Indian Business Council (LIBC) members have stated that they
will participate in the MOA as long as there are no substantial changes to the draft.
Blake commented that the Purpose statement in the MOA states that it is a watershed
plan that fills all the requirements of quantity and quality of habitat outlined in ESHB 2514.
Sutter responded that the Objectives section does not fill all the requirements of ESHB 2514.
Sutter distributed an outline of the legislation's responsibilities and requirements (handout on
file).
Committee of the Whole (Moming Session), 6/30/98, Page 1
I Imhof stated that the County has completed item I(A) from Sutter's handout, and is
2 working on items I(B) and I(C). He questioned which entities need to be on the planning unit.
3 There are five initiating governments and he wondered whether the planning unit would grow to
4 a group of 60 people.
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6 Dick Grout, Department of Ecology, explained that state agencies may be requested to
7 advise the initiating governments. There is also a statute that states that if the state agency is
8 required to participate in any way, they must be a parry to the discussions and agree to that
9 obligation. Therefore, state agencies do not have to be a part of the process, however if the
10 initiating agencies want state involvement, the state must agree to participate.
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12 Hoag quoted a section from ESHB 2514 regarding State involvement. One of her
13 concerns was that the draft MOA makes the initiating governments the planning unit. That is not
14 the intent of ESHB 2514. Local planning does not include state and federal agencies. She would
15 like to see the planning unit include local people, with the assistance of the state and federal
16 agencies.
17
18 Dawson quoted from the section of ESHB 2514 that outlines who must be a part of the
19 planning unit.
20
21 Brown questioned the second "WHEREAS" of the Lummi Resolution. This section
22 claims their jurisdiction outside of reservation boundaries. In agreeing to the MOA, he doesn't
23 want to agree that these areas are the jurisdiction of the Lummi Nation.
24
25 Sutter stated that she does not know the boundaries of their Usual and Accustomed
26 Fishing and Gathering Grounds and Stations. Imhof explained that the boundary was roughly
27 from Alaska to California. Sutter stated that she would like to have the boundary defined. The
28 Lummi Resolution is irrelevant to the MOA process.
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30 Imhof stated that the Purpose statement should be simple. The purpose is to establish a
31 watershed plan pursuant to ESHB 2514.
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33 Sutter explained that this is to be a water resource inventory planning area. However,
34 throughout the document it refers to "the watershed." Sutter questioned to which watershed they
35 are referring. It would be more appropriate to replace all references to "watershed" with the term
36 "Water Resource Inventory Area (WRIA)."
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38 Hoag commented that she approved of the local language and suggested that it not be
39 changed unless there is a problem to show appreciation to the Lummis for the work that they did.
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41 Dawson concurred with Hoag and suggested removing the word "options" in the first
42 sentence of the Purpose statement. Sutter clarified that the options outlined in the Purpose
43 statement are options as specified by ESHB 2514.
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45 Sutter requested the committee members' opinion on the watershed language. If this
46 document only addresses the Nooksack watershed, then it is only a piece of the work that needs
Committee of the Whole (Moming Session), 6/30/98, Page 2
I to be done under ESHB 2514. Imhof clarified that the Drayton Harbor watershed and other areas
2 are included in the intent of ESHB 2514 and should be clearly specified in the MOA.
3
4 Hoag commented that Council's actions should be in line with the Endangered Species
5 Act (ESA) recovery action and questioned whether those actions should be included in ESHB
6 2514.
7
8 Brown questioned, in the section Initiating Governments, who would have policy making
9 authority. Imhof explained that the representatives to the planning process would be from both
10 the legislative as well as administrative divisions of the various governmental entities. The
11 legislative branches would set policy. Sutter explained the Council would only have one vote.
12
13 Blake stated that she has been participating on behalf of the County administration and
14 meeting with the other initiating government representatives including the Public Utility District
15 (PUD) #1, the City of Bellingham, and the Lummi Nation. The initiating governments are at the
16 beginning stages of the process. The steps that need to be taken include defining the planning
17 unit, how it works, who will be involved, and the scope of work. Those items will have to go
18 through a public process.
19
20 Tom Anderson, PUD, commented that it is appropriate for the County Council and the
21 City Council to give consideration to how they want to be represented. Staff needs to be
22 designated. The team of initiating governments needs to negotiate the agreement. He questioned
23 whether administration, legislators, or staff would negotiate the agreement.
24
25 Kathy Bovencamp, Building Industry Association, stated that typically the tribes are used
26 to dealing only with administration. The initiating team should be the County Council and the
27 City Council. The public would like to see the initiating governments be the Councils.
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29 Sutter stated that it depends on who would be appropriate to participate. The Council
30 gives direction, and reviews and adopts policy and legislation. The Council is not necessarily a
31 party to the development of policies and legislation.
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33 Brown stated that a concern is that this has been developed outside of the public process
34 until now.
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36 Hoag stated that the County Council dealing with County Administration is different than
37 five different governments working out compromises. By the time the process gets to the public,
38 the governments are unwilling to change the resulting policy.
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40 Bob Anderson, private consultant, suggested discussion on whether the Council would
41 want to go beyond the limitations of ESHB 2514 to determine how the smaller cities will be
42 incorporated into the planning unit.
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44 Imhof questioned how the planning unit will be created.
45
Committee of the Whole (Moming Session), 6/30/98, Page 3
I Hoag quoted from a portion of ESHB 2514 regarding consensus of the planning unit
2 members. Because of this language, the composition of the planning unit is very important.
3 These federal and state agencies should be a part of the planning process, but be restricted to one
4 vote for the federal government and one vote for the state government. Also, private entities
5 should be represented, but their number should be limited.
6
7 Imhof suggested adding an environmental representative and a business representative to
8 the planning unit. Hoag also suggested adding a representative for the small cities.
9
10 Sutter believed the planning unit would be the decision - making body. The voting
11 representatives have to have responsibility defined under the plan. The planning unit would
12 review and request technical assistance and organize the process, in addition to decision - making.
13 There is a lot of expertise and groups from which to gain information without giving them
14 decision - making authority.
15
16 Skip Richards, Washington Associated Water Systems, stated that he represents water
17 purveyors. He questioned whether it was appropriate to determine the composition of the
18 planning unit in the agreement. The language should not specify the parties to be involved.
19 Simply add language, "include, but not limited to..." This would delay establishing the
20 composition of the planning unit.
21
22 Blake stated that she doesn't think this is the time to determine whom the representatives
23 on the planning unit would be. It is only necessary to define the language that would influence
24 the planning unit.
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26 Hoag stated that she felt the language is too vague. Imhof replied that the development
27 of the planning unit is inter jurisdictional.
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29 Hoag further stated that she is more comfortable with the language in the draft MOA than
30 with the language suggested by Richards.
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32 Craig MacConnell, Cooperative Extension Chairman, quoted from a section of ESHB
33 2514 regarding the composition of the planning unit. That language would simplify the process.
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35 Imhof suggested the language to the Planning Unit section: "Whatcom County will be
36 the lead agency in the planning effort. The Planning Unit n t is not fiRlited -
37 ,
38 Nation,
39 ,
40 , Bufe
41 of Reelamation, Efwifofimeatal Pfeteetion Ageney, Fish and Wildlife Sefviee,
42 ; and the othe
43 . In developing the composition of the planning unit,
44 the initiating government shall provide for representation of a wide range of water resource
45 interests."
46
Committee of the Whole (Moming Session), 6/30/98, Page 4
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The committee concurred with Imhof s suggestion.
Dawson suggested adding language to the second bulleted item under "Objectives ":
"Use the best available science and most recent legal case on measurement to make reliable
estimates..."
Sutter questioned how science is used to determine rights. Water rights is a legal issue,
not a scientific issue.
Imhof questioned whether the objectives in the MOA are the same objectives of ESHB
2514. His interpretation is to plan. The MOA narrows the focus too much by using only the
existing objectives.
Blake explained that the water quantity section three of ESHB 2514 specifies what has to
be a part of the assessment.
Imhof asked Blake to develop the quantity assessment for the evening Council meeting.
Sutter stated that the objectives in the MOA should be the same as the objectives in
ESHB 2514. Imhof added that the determination of the best available science is too arguable.
The goals to be accomplished should be listed and then let the entities work through how those
goals will be developed. This should not be addressed in the agreement.
Hoag stated that she would like to address the Lummi's concern that the best available
science be used.
MacConnell stated that ESHB 2514 uses the term best available science. His concern is
regarding the implications of the proposed objectives in the MOA. Specifically, the implication
is that all other rights, other than tribal rights, are junior throughout the entire watershed.
Sue Blake explained the tribe wanted the language in the document for a specific reason.
It would be important to discuss the language with the tribe. It deals with the touchy issue of
water rights and junior and senior rights.
Richards stated that the Council must find a means of agreeing that there is going to be an
assessment of water quantity demand, including tribal demand and the water for fish demand.
One demand can be determined scientifically. The other is a demographic projection.
Imhof asked Blake to work with him to create new language for the Objectives section.
Hoag questioned whether the data referenced in item #1 of the Tasks section is already
available and, if not, would the planning activity go on hold for ten years.
Imhof stated that the tasks should not be in the MOA. The initiating groups should
instead develop the tasks. The tasks should be removed from the MOA altogether.
Committee of the Whole (Moming Session), 6/30/98, Page 5
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Andersen explained that one omission is the separation of beneficial uses regarding how
the tribes are looking at the issue. If the beneficial uses that exist relate to recreation, fisheries,
agriculture, industry, residential, and others, then those things can be quantified. It does not need
to be determined whether or not those items are tribal. Council needs a statement in the
Objectives section that they will quantify all of the demand need for beneficial uses.
Marian Beddill, 3600 Seeley, suggested the Council not eliminate the last item under
both the Objectives section and the Tasks section. Those items truly relate to coordination of
efforts.
Sutter suggested that the last item in the Objectives section should read: "Coordinate
water resource management and land use with salmon recovery actions."
Brown questioned whether normal land use planning can be vetoed due to the language in
the MOA.
Imhof stated that committee agreed to remove the Task section and instead have the tasks
developed by the initiating group. The language regarding fish habitat will be retained and may
be added to the Objectives section. The Committee also agreed to amend the last item of the
objectives, "Coordinate water resource management and land use with salmon recovery actions."
Other language will be looked at and brought forward at the evening Committee of the Whole
meeting.
Hoag expressed concerns about the Decision Making section. The second item states that
decisions are to be made by unanimous vote and consensus by unanimous agreement. Hoag
questioned what would happen if one person did not agree. She suggested using language from
ESHB 2514. Also, in the Termination and Preservation of Rights section, some of the language
could be dropped in the third item. In the second sentence, the following terms should be
eliminated: plan, agreement, concession, statement, data, material or document. Once something
is agreed on, it should be binding.
ADJOURN
The meeting was adjourned at 9:30 a.m.
These minutes were approved by Council on September 29, 1998
Jill Nixon, Records Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Robert Imhof, Council Chair
Committee of the Whole (Moming Session), 6/30/98, Page 6