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HomeMy WebLinkAboutSpecial Council November 18 1986RECORD OF PROCEEDINGS OF THE VRATCON COUNTY PLANNING COMSSION BRIJ NGHAN, VkMMK1TON REGULAR NUTING NOY== 18, 1986 CALL TO ORDER The meeting was called to order by Commission Chair, Peggy Hinton at 1:34 pm. The meeting was hold on the second floor in the County Council Chambers, Whatcom County Courthouse. ROLL CAM WHATCOM COUNTY PLANNING COMMISSION: PRESENT: Peggy Hinton, Al Hickinbotham, John Vanderhage, Alvin Van Dalen, Jim Freeman, David Simpson, Louise Greer Faruk Taysi and Emil DeWilde WHATCOM COUNTY COUNCIL: PRESENT: Donald Hansey, Tom Burton, Bob Muenscher, J.V. Hawley, Jr., William Roehl and C.J. Johnson EXCUSED: Daniel Warner PLANNING STAFF PRESENT Diane Harper, Interim Planning Director and Jennifer Olson, Secretary PUBLIC HEARING CHERRY POINT SHORELINE AMICIMMENTS: CONSIDERATION Or THE SHORE RE MANAGEMENT PROGRAN MMONTS FOR THE ASINA COMMONLY KNOWN AS CMW POINT. PROPOSED Br THE VOWING GROUP ON CMW POINT APPOINTED BY THE VRATCON COUNTY COUNCIL. DIANE HARPER, Interim Planning Director, explained that the Whatcom County Planning Department and the Whatcom County Council are the applicants in the request to amend the County's Shoreline Management Program. The existing program was adopted in 1977. The proposed changes would amend the program for the area commonly known as Cherry Point in order to make certain provisions for industrial development in that location. The statutory authority directs that the Planning Commission hold a public hearing on any proposed shoreline amendments and then following Planning Commission action any recommended amendments are forwarded to the County Council and following that to the State Department of Ecology. The legal notice was published November 9, 1986, in the Bellingham Herald. The SEPA requirements for environmental review have been postponed until the amendments are fully heard and a finalized proposal is presented. Several years ago the State Department of Ecology encouraged Whatcom County to review the county's Shoreline Management Program and to consider amendments which would make it more responsive and predictable to applicants. Last fall the County Council appointed WHATCOM COUNTY PLANNING COMMISSION MINUTES OF NOVEMBER 18, 1986 - PAGE TWO an ad hoc Working Group on Cherry Point which developed the amendments that are being proposed today. Exhibits for today's hearings include the August 28, 1986 draft of Cherry Point Amendments and the November 10, 1986, memorandum from Wayne Sohwandt, Chair of the Working Group on Cherry Point. The Working Group is composed of representatives from both the public and private sector. Ms. Harper introduced Wayne Sohwandt to present the report detailing the issues and findings and the recommendation of the Working Group. WAYNE SCHWANDT explained that his presentation would involve an overview of the proposed amendments and the issue areas the Group identified as being the most important. Mr. Schwandt introduced several maps for the record. Using the maps, he showed the area which would be affected by the amendments and which areas the various regulatory agencies have authority over. The agencies include the Department of Fisheries (Fisheries), the Department of Natural Resources (DNR), the Department of Game, the Department of Ecology (DOE) , the Environmental Protection Agency (EPA) and the Army Corps of Engineers. He explained that these departments have an immediate and direct impact on any development at Cherry Point. Again referring to the maps, Mr. Schwandt identified the extreme low tide line, which is defined at Cherry Point as a minus 4.5 feet mean low or low water (MLLW). DNR classifies this area as second class tidelands from that point landward to plus 9 feet mean high or high water (MHHW). Mean high or high water is essentially the same as the overall high water mark. The statutes refer to overall high water mark. The technical definition is mean high or high water mark and the terms are often used interchangeably. The second class tidelands refer to the types of allowed development controlled by DNR rules and regulations. Mr. Sohwandt explained that it was important to note that most high impact industrial development occurs within areas that have been designated as harbors. Harbors were designated at the time the constitution was written and Cherry Point is not designated as a harbor. From extreme low tide waterward are aquatic lands that are administered by DNR. The Cherry Point extreme low tide is another important reference point because it is where the Shoreline of Statewide Significance begins and extends waterward. Mr. Schwandt next commented ont the Department of Fisheries' responsibilities and regulations. He pointed out on the maps the location of the herring spawning bed which defined as minus 15 feet MLLW to plus 3 feet MLLW. It starts at a point near Sandy Point and ends near Point Whitehorn. There is a prohibition against any dredging within the defined spawning bed. Additionally, Fisheries controls the distance a bulkhead can extend into the water. By administrative code the bulkhead can extend into the water to the plus 7.5 foot elevation. From that point and beyond no fill is allowed. Mr. Sohwandt explained that the first functional depth of water for Cherry Point is minus 20 feet MLLW which is considered the minimum depth for barge traffic. He said one option would be to dredge the minus 20 foot contour to coincide with the minus 50 foot contour. However, because of the expense involved this option Would be an unlikely choice. To reach the 20 foot MLLW line would require a pier on pilings or a floating pier. These are permitted uses under the proposed amendments. Any development that required dredging to reach the 20 foot MLLW would require a conditional use permit which would trigger the Fisheries' WHATCOM COUNTY PLANNING COMMISSION MINUTES OF NOVEMBER 18, 1986 - PAGE THREE restrictions on dredging in the herring spawning bed. Because of the problems associated with dredging the amendments were written to encourage development using pier on pilings and /or floating structures with a bridge to the minus 20 foot MLLW point, Mr. Sohwandt said that one issue that needs to be addressed is to what extent should the Shoreline Management Program further restrict dredging in the Cherry Point area. He said it appears that the present restrictions are sufficient. The only dredging allowed under a permitted use would be that which was directly ancillary to the construction or operation of the pier. A second issue to be addressed is the defined point for the furthest extent of waterward development. The proposed amendments define it as the minus 80 foot contour or the most waterward development. The reasoning behind the definition is that the minus 80 foot contour meanders considerably relative to the beach. Because there is a lot of wind and wave action in the area a breakwater might eventually be required assuming there was a full build -out of a facility to the minus 60 foot level. If a breakwater was to be constructed and if the waterward limit was left at minus 80 feet there would be few options for placement of the breakwater. Responding to a question, Mr. Schwandt noted that of the current docks, the Arco dock is built to the 60 foot contour with the other docks built to the 40 foot contour. Mr. Schwandt told the panel that a specific reference and definition of location of the accretion shoreform was needed in the amendments because development on the shoreform would be prohibited. He said that compared with other shoreline management programs within the state the proposed amendments appear to be as concerned with the balance of natural resource protection and promoting development as any of the other programs. With the exception of highly dense areas of development, like Seattle, comparable areas to Cherry Point did not have the same balanced approach. One major issue is establishing specific standards for development. The Working Group decided that in the absence of a generally recognized and agreed upon data base for Cherry Point that the placing of standards from a legislative standpoint really didn't make any sense. To address this issue the Group decided to promote the idea of non -user permits. The theory behind non -user permits is that if we recognize the fact that we do not have a good data base on the fisheries and literal drift, let's encourage the development of projects to the degree of specificity that the departments who are responsible for issuing permits need to review those projects. Then the standards can be set through the process of negotiation on a project with the reviewing and permitting agencies. This approach is to encourage people to present projects that were as close to reality as possible, working through the systems to identify what potential mitigation issues there were, identify costs and then use this information in promoting the site to potential developers. There was some concern early on that this type of approach to development standards for Cherry Point would encourage an unwise use of the water resource by perhaps overbuilding in anticipation of an event that would never occur, but the economics would mean that any project that was WHATCOM COUNTY PLANNING COMMISSION MINUTES OF NOVEMBER 18, 1986 - PAGE FOUR actually built would have to be justified. The language is as precise as we could make it. Mr. Sohwandt said that it might be appropriate to reference, by citation, all of the various state administrative codes which impact development at Cherry Point in the county's shoreline program. This is closer to the concept that a developer has one document from which to gain as much insight as possible about what is allowed and not allowed at Cherry Point. DIANE HARPER explained that in order to have the hearing as soon as possible not all of the parties who would want to comment have had the time to make arrangements to come to today's hearing or to provide written comments to the Planning Department. Several state agencies and private groups have called and indicated that they would submit written testimony during the open comment period. She noted that one letter was received today from Evergreen Islands Incorporated. . COMMISSION CHAIRPERSON HINTON opened the floor to verbal testimony from members of the public. CARL KASSEBAUM, representing the Environmental Protection Agency, Seattle, said he appreciated the process and hopes that the approach will save future problems associated with Cherry Point. He said EPA is concerned and involved because the beach has such a high value for resources including crab, the herring spawning grounds and the spin -off uses for the herring resources, in addition to it being a major key to the whole function of Puget Sound. Mr. Kassebaum distributed two handouts: (1) Federal Regulations Part IV EPA Guidelines for Specifications of Disposal Sites for Dredged or Fill Material and (2) U.S. Environmental Protection Agency Region 10, 404 Mitigation Policy. The EPA and the Army Corps of Engineers jointly administer the law. The Corp of Engineers is responsible for the permitting process and has the authority to make determination of 404 Guidelines as to what action will be taken, but EPA has veto authority. The 404 Guidelines involve placement of dredged or fill material. Dredging and placement of fill material for an approach way and fill to build a structure on would involve the EPA. He said the EPA first looks at a project to determine the need for it. If the need is demonstrated and if the project proposes fill of any sort below the mean high or high water level plus 9 feet, a permit is be required and would involve the 404 Guidelines. Mr. Kassebaum said that the EPA encourages the concept of pile supported projects. It will not allow dredging in the herring spawning area because there is no known way to mitigate for lose of the spawning habitat. If any significant impacts from the project cannot be mitigated the project will be denied. In reviewing the plan, he said he believes it provides false hope to potential developers in using words like "should" or "discourage" in relationship to dredging and filling. He suggested changing the wording to state that permits can be obtained for a dock structure at this time but until mitigation measures for the herring spawning area are developed and identified dredging and filling will not be allowed. However, once the information on mitigation measures became available it could be included in the process. WHATCOM COUNTY PLANNING COMMISSION MINUTES OF NOVEMBER 18, 186 - PAGE FIVE In concluding, Mr. gassebaum recommended that the plan be changed such that no dredging be allowed with the possible exception of maintenance dredging for existing docks and expansion of existing docks. Allow no fill below the plus 3 foot level. Any fill allowed would be reviewed under the 404 Guidelines' analysis and alternatives. He suggested identifying in the plan one or two large dock structures which would have the largest potential impact for any single structure and put in the specifies of the project. Then run it through the Corp of Engineers regional permit process for generic type projects. Once a permit was in place and a proposed project fell within the bounds of the permit all that would be necessary is a letter of permission from the Corp of Engineers and whatever additional requirements required by the County. He said the main goal should be to get all three levels of government in agreement on approach, work out the exact procedures, and hopefully get the permits in place up front so that potential developers can use them. ROD HACK, Program Manager, Shoreland Division, State Department of Ecology, read through a brief prepared statement and then spoke to several points related to the proposal. DOE has encouraged Whatcom County to develop a Cherry Point management unit as a means to provide increased permit predictability and continued natural resource protection for this area. He believes that a special area plan can avoid the types of industrial and natural resource conflicts that have characterized the area in recent past. He said that the draft amendment begins to reduce conflicts by calling for pile supported piers and floating structures as the encouraged type of development as DOE agrees that this type of development is appropriate. The proposed amendment allows dredging and landfill as a shoreline conditional use permit. He believes that this does very little to support permit predictability. He said DOE's consistent position is that major dredge and fill activities should be prohibited along the Cherry Point shoreline. Mr. Mack added that more detailed written comments would be provided during the review period. Some of the specific issues DOE is concerned with include: (1) bluff excavation criteria. DOE recommends that the amount of bluff removal be tailored to a proposal and limited to minimum necessary; (2) lack of specificity on public access; (3) non -user permit application seems to have merit and conceptually is an operational sort of approach, but to make it work it must be more specific; and (4) concern regarding the indefiniteness of the western boundary. DUANE FINNEY, representing the Department of Fisheries, explained that Fisheries is concerned with the shellfish and food fish resources of the area. Most notably it is concerned with the protection of the juvenile salmon, dungeness crab and herring, and with the impact of potential development on the welfare of those fisheries as well as the resources they depend upon. He believes that the document falls short of achieving the goal of setting standards for development that have a concise policy direction to minimize regulatory confusion and conflicting or duplicate shoreline regulations. He said the document needs contain more specific guidelines, but is a suitable framework to work from. Fisheries will provide written comment during the review period. He said the essence of their comments will be to provide for the inclusion of Fisheries' hydraulic code and administrative rules into the program. The regulations are based upon specific observations with respect to the herring and salmon in the vicinity and should be incorporated into the program. With respect to dungeness WHATCOM COUNTY PLANNING COMMISSION MINUTES OF NOVEMBER 18, 1986 - PAGE SIX crab there is less of a detailed data base. Fisheries would require site specific studies and development protection and mitigation measures based on these studies. He said the Department supports the pier on piling type of project. WAYNE SCHWANDT responded to several comments made during previous testimony. He cautioned that in a quest for predictability we should not lose site of the level of maturity of development at Cherry Point. He noted that predictability in highly urbanized areas is a lot easier to establish than in a place where the market is yet to be defined specifically as to what is an appropriate use. He said that the Shoreline Management Program should not be used as a substitute for the permitting process. He said that Rod Mack's comments regarding the conflict- ing standards on bluffs can easily be addressed, but the need for specificity for public access is a difficult issue. The Group's recommendation was to show a way in which the community and the property owners could collectively look at the issue and come up with an acceptable plan to community, county and property owners. He agreed that the amendment could better define the western boundary. He again suggested citing in the amendments all of the various agencies' rules and regulations that apply to development of the site. Regarding dredging he believes the language makes it very clear that it will be discouraged until there is an acceptable mitigation program. Following general discussion, Chairperson Hinton recessed the meeting at 3:20 pm until 7:00 pm for the evening session. EVENING SB.SSION CALL TO ORDER The meeting was called to order by Commission Chair, Peggy Hinton at 7:03 pm. The meeting was held on the second floor in the County Council Chambers, Whatoom County Courthouse. ROLL CALL WHATCOM COUNTY PLANNING COMMISSION: PRESENT: Peggy Hinton, Al Hickinbotham, John Vanderhage, Alvin Van Dalen, Jim Freeman, David Simpson, Louise Greer Faruk Taysi and Emil DeWilde WHATCOM COUNTY COUNCIL: PRESENT: Donald Hansey, Tom Burton, Bob Muenscher, J.V. Hawley, Jr. and William Roehl (arrived at 7:25 pm) EXCUSED: Daniel Warner and C.J. Johnson PLANNING STAFF PRESENT Diane Harper, Interim Planning Director and Jennifer Olson, Secretary WHATCOM COUNTY PLANNING COMMISSION MINUTES OF NOVEMBER 18, 1986 - PAGE 7 PUBLIC HEARING CHERRY POINT SHORELINE AMENDMENTS: CONSIDERATION OF THE SHORELINE NANAMMT PROMN ==NUTS FOR THE AREA CONNOULT LNOUN AS C POINT. PROPOSED BY THE WOU31SO GROUP ON CHMNRY POINT APPOINTRD Nr THE MMHATCON COUN'T'Y COUNCIL. DIANE HARPER told the audience that following the close of tonight's hearing written testimony would be accepted until Monday, December 1, 1986. She explained that the application to amend the Shoreline Management Program for Cherry Point was initiated by the Whateom County Planning Department and the Whateom County Council. The staff work was done by the ad hoc Working Group on Cherry Point which was appointed by the County Council. The purpose of the amendments is to clarify the industrial development potential in the area. Following a brief review of her previous comments made during the afternoon session, Ms. Harper turned the meeting over to Wayne Schwandt. WAYNE SCHWANDT, Chair of the Working Group on Cherry Point, briefly reviewed the several maps describing the Cherry Point area and noted which state and federal agencies having authority over the area. CHAIRPERSON HINTON opened the floor to comments from the public. MIRE MACKAY, representing the Lummi Indian Fisheries, asked about the accretion shore form and its determination. He said that he was unable to attend the afternoon session and was unsure of what was going on. He requested that Mr. Schwandt give a more detailed explanation of the accretion shoreform and the proposed amendments. WAYNE SCHWANDT explained that there was no real connection between the photo- graphs and the maps. The photos are being used in the hearing as a visual representation of what is happening in the area. He said it was his understanding that the accretion shoreform is a designation that Whatcom County placed on the area and that is identified on the photograph. For purposes of the amendment, port development is prohibited there. Mr. Schwandt reviewed his earlier comments from the afternoon session regarding the proposed amendments. General discussion followed between Council members, Commission members and Mr. Schwandt regarding the bulkhead, potential length of the pier, economic feas- ibility of building a pier on pilings and placement of the western boundary. PHYLLIS GRAHAM, resident of Birch Bay, told the panel that she would provide written comments but wanted to say a few things this evening. She said she has been involved with shoreline issues for some time. She supports the pier on pilings type of project but is opposed to landfill and dredging. She said that part of the purpose of the amendments is to give guidelines for potential development so that past problems would not be repeated. She believes that the language is not strong enough and therefore provides the basis for lengthy public review and potential lawsuits. She commented on the language that states "All pier on piling structures shall have a minimum vertical clearance of one foot above extreme high water." She noted that the one foot mark is insufficient to meet the environmental conditions of the area caused by wind and wave action. WHATCOM COUNTY PLANNING COMMISSION MINUTES OF NOVEMBER 18, 1986 - PAGE 8 DIANE HARPER explained that based on the accretion shoreform shown in the photographs there has been a drawing developed that shows its location. She said the question is whether that is the location the Commission and Council will formally adopt. Pointing to the drawing Ms. Harper said the accretion shoreform is shown just slightly below the Power Plant Road and 17501 up to where the intermittent stream is shown entering the bay. PETER WILLING, 2509 Sylvan Street, Bellingham, said he was opposed to allowing dredge and fill operations at Cherry Point. He commented on the provision for "shore defense works" and said that design of the facilities should eliminate the need for shore defense works. He believes that public access should be a very strong part of the amendments. He expressed his concern that the document is not specific enough and that too much discretion is allowed. BOB TULL, member of the Working Group, urged everyone not. to be too quick to abandon the language that he feels was very carefully chosen. He said there are two sections in the packet. One is policy proposals which traditionally utilize precatory language. This is followed by a regulatory section which uses mandatory language. He noted that whether it be a conditional use or a permitted use, is one in which mitigation of impacts and resolution of issues is part of the process. HARRY FULTON asked if he could obtain a copy of the proposed amendments. Ms. Harper explained to him and the audience that copies were available in the Planning Department. PHYLLIS GRAHAM questioned what the remaining process would be for review of the amendments. CHAIRPERSON HINTON explained that the Planning Commission would go into a work session to discuss the matter and make a recommendation to the County Council. During the work session the Commission may ask questions of the Working Group or other appropriate individuals. At this time she closed the public hearing for verbal testimony and announced that written testimony would be accepted until Monday, December 1, 1986. ADJODM The meeting adjourned at 8:17 pm. ATTEST: Diane Harper, Secretary APPROVED: WHATCOM COUNTY PLANNING COMMISSION Peggy Hinton, Chairperson