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Packet Mar 13 2018
W[[A TCO41 COUNTY COUNCIL AGENDA BILL NO. 2018 _ 87 CLEARANCES Initial Date Date Received in Council Office A enda Date Assigned to: on inator: 2/21/2018 r p 2/27/2018 Justice & Safety Division Head: 3/13/2018 Justice/Safety Dept. Head: Prosecutor: Purchasin /Bud et: Executive: TITLE OF DOCUMENT. Discussion of the Criminal Justice & Public Safety Committee work plan for 2018 and other meeting -related items. ATTACHMENTS: SEPA review required? ( ) Yes ( ) NO Should Clerk schedule a hearing ? ( ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Discussion of the Criminal Justice and Public Safety Committee's work plan for 2018 COMMITTEE ACTION: COUNCIL ACTION. 2/27/18: Discussed in Criminal Justice and Public Safety Committee Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the Count 's website at: www.co.whatcom.wa.us/council. ,)ni R-ncan WHA I UUM (.'U UJV 1 'Y (.'U UJV (:1L A GEADA BILL NO. CLEARANCES Initial Date Date Received in Council Of fice Agenda Date Assigned to: Originator: 310112018 311312018 Natural Resources Joshua Fleischmann r— � � � � � ��� (j � �% E �('�� WR � (� V l Committee Division Head: i� 310112018 8 �, Mark Personius M Dept. Head: 310112018 Mark Personius o , -COM COUNTY Prosecutor: 6 } (\ 310112018 Royce Buckingham COUNCIL Purchasing/Budget: Executive: Jack Lows TITLE OF DOCUMENT. Briefing of Mineral Resource Lands (MRL) County -wide Designation Process ATTACHMENTS: 1. Cover Letter 2. Map of Potential Resource Area Overlay SEPA review required? ( ) Yes (X ) NO Should Clerk schedule a hearing? ( ) Yes (X ) NO SEPA review completed? ( ) Yes (X ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Policy 8R-1 of the Comprehensive Plan states "Through a county -led -countywide assessment, seek to identify and designated potential commercially significant mineral resource lands, to meet future demand, compatible with water resources, agricultural lands, forest lands and other GMA goals." Support for this process was further displayed through the docketing process in 2017 and again in 2018. The purpose of the attached memo is to discuss the impending countywide review of potential resource lands for inclusion as designated mineral resource lands. Prior to convening the Surface Mining Advisory Committee, staff hopes to receive feedback/direction from the County Council Natural Resources Committee on potential alternatives as well as other considerations. COMMITTEE ACTION.• COUNCIL ACTION. Related County Contract #: Related File Numbers: Ordinance or Resolution Number. Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at. www.co.whatcom.wa.us/council. 2 WHATCOM COUNTY Mark Personius, AICP Planning & Development Services Interim Director 5280 Northwest Drive -: Bellingham, WA 98226-9097 360-778-5900,TTY 800-833-6384 360-778-5901 Fax Memorandum TO: The Honorable Jack Louws, Whatcom County Executive The Honorable Whatcom County Council FROM: Joshua Fleischmann, Planner -' THROUGH: Mark Personius, Interim Director DATE: March 1, 2018 SUBJECT: Briefing of Mineral Resource Lands (MRL) County -wide Designation Process The purpose of this memo is to discuss the impending countywide review of potential resource areas for inclusion in the Whatcom County Comprehensive Plan as designated mineral resource lands. BACKGROUND A Whatcom County led review of potential resource areas for designation was first recommended by the Planning Commission during their review of surface mining rules under PLN2013-00008. The County Council subsequently voiced support for this review through the 2016 Comprehensive Plan update: • Policy 8R-1: Through a county -led countywide assessment, seek to identify and designate potential commercially significant mineral resource lands, to meet future demand, compatible with water resources, agricultural lands, forest lands and other GMA goals. Support for this process was further displayed through the docketing process in 2017 (PLN2017-00004) and again on February 27, 2018. As a Level 3 issue identified in the Public Participation Plan, PDS staff will generate alternative approaches this issue prior to review and comment by the Surface Mining Advisory Committee and further outreach to the public through town hall meetings. Prior to convening the Surface Mining Advisory Committee, staff hopes to receive feedback/direction from the County Council Natural Resources Committee on potential alternatives as well as other considerations. ALTERNATIVES • Designate all Potential Resource Areas (PRAs) This approach would designate all PRAs as shown in the attached map. Nothing other than the geologic resource is considered when identifying what areas in Whatcom 3 County will be designated MRL. This approach would result in designation of certain areas that may not be compatible with long-term mineral extraction, such as agriculturally zoned lands, Limited Areas of More Intensive Rural Development (LAMIRDS), wildlife areas managed by the Washington Department of Fish & Wildlife (WDFW), park and other public recreation areas, Urban Growth Areas (UGAs), and developed areas. Designation of these areas may not be consistent with GMA. • Designate PRAs with Exclusions This approach would remove certain areas from the PRAs so that they do not become designated MRLs. Skagit County and Snohomish County used this approach in designating mineral resource lands. Whatcom County currently has 17 Designation Criteria for Non -Metallic Mineral Deposits. Due to their current application at the localized, landowner -initiated process, some of these criteria apply seamlessly to a county -wide review while others do not. Further, even when areas are excluded form PRAs, additional considerations on what to include are necessary. In the table below, the permissive approach outlines considerations that would result in a larger designated area, while the restrictive approach skews towards a smaller mineral resource lands designation. Permissive Restrictive Include parcels that do not meet primary Exclude parcels that meet primary designation criteria to prevent irregular designation criteria to prevent irregular designation boundaries (picture including a designation boundaries (picture bay of non-PRA) excluding a peninsula of PRA Include parcels that are only partially within Parcels must be completely within PRAs, even if within other designation (AG) PRAs wellhead protection area, or other excluding criteria; Snohomish County designated any parcel showing any amount within PRA Include 5-acre parcels surrounded by 20- Do not create non -conforming parcels; acre parcels. i.e. subdivision cannot create lots smaller than 20 acres, so all parcels must be larger than 20 acres. Forestry and AG "protect the resource". No need for additional desi nation Dual designation similar to Skagit's "Rural Resource" designation Staff is open to suggestions on which criteria to use, avoid, modify, or create. • Designate no new PRAs The No Action Alternative would not designate additional areas as MRL. Any new MRL designations would continue to be done through the landowner initiated approach as is done now. DEVELOPMENT REGULATIONS While RCW 36.70A.170 directs counties to designate mineral resource lands of long-term commercial significance in order to protect the resource from incompatible uses, the designation itself does not protect the resource. Rather, it is the development regulations adopted consistent with RCW 36.70A.060 (Zoning Overlay in Whatcom County) that protects the resource through the limitations on subdivision, as shown in the table below. 0 Comprehensive Plan Designation No Comprehensive Plan Designation Zoning Overlay - Surface mining subject to - Surface mining subject to Surface Mining Act Surface Mining Act - 20 acre minimum lot size on - 20 acre minimum lot size on subdivisions, which protects subdivisions, which protects resource from incompatible resource from incompatible uses uses (people) (people) No Zoning - Surface mining subject to SMA - Surface mining subject to SMA Overlay is prohibited is prohibited - Minimum lot size on - Minimum lot size on subdivisions subdivisions based on zoning; based on zoning; Only AG, CF, Only AG, CF, and RF have and RF have minimum lot sizes minimum lot sizes of 20+ of 20+ acres to protect resource acres to protect resource from from incompatible uses (people) incompatible uses (people) Throughout Whatcom County, there are Designated Mineral Resource Lands (MRL) where the primary zoning may be Agriculture, R10, R5, Commercial Forestry, or Rural Forestry, depending upon the location of the MRL. Each of these designations also has a Mineral Resource Lands zoning overlay, which allows for the application of permits for activities subject to the Washington State Surface Mining Act, as well as limiting the subdivision of property to a 20-acre minimum lot size. Importantly, as discussed above, limitations on subdivisions (20 acre minimum lot size) are presently the only mechanism used to protect the resource. If a property is less than 40 acres in size and designated MRL with an MRL Zoning Overlay, subdivision would not be allowed. If the limitation on subdivisions is removed, other mechanisms to protect the resource from incompatible uses would be necessary. 5 WNAT('nM rOVIVTY CniINCIL AGENDA BILL NO. 2018-091 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: ED 2132118 �� (�\\///J 3113118 Natural Resources /yy Division Head: 8 A t Dept. Head: Prosecutor: Q9/i7� WHATCOM COUNTY Cot I L Purchasing/Budget: Executive: �� d TITLE OF DOCUMENT. - Pollution Identification and Correction Program- Jordan Creek Watershed ATTACHMENTS: Memo Lummi Nation December 2017 letter to Washingoton State Department ofEcology SEPA review required? ( ) Yes (h) NO Should Clerk schedule a hearing? ( ) Yes ( ) NO SEPA review completed? ( ) Yes () NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Public Works staff will provide a brief presentation about Pollution Identification and Correction (PIC) Program work in the Jordan Creek/ Lummi Bay watershed. COMMITTEE ACTION.• COUNCIL ACTION.• Related County Contract #: Related File Numbers: Ordinance or Resolution Number. Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at. www.co.whatcom.wa.us/council. WHATCOM COUNTY PUBLIC WORKS DEPARTMENT Jon Hutchings Director MEMORANDUM TO: The Honorable Jack Louws, County Executive Honorable Whatcom County Councilmembers THROUGH: Jon Hutchings, Public Works Director4, FROM: Gary Stoyka, Natural Resources Manager , Erika Douglas, Senior Planner_ DATE: February 23, 2018 NATURAL RESOURCES 322 N. Commercial, Suite 110 Bellingham, WA 98225 Telephone: (360) 778-6230 FAX: (360) 778-6231 www.whatcomcoun!y.uS RE: Pollution Identification and Correction (PIC) Program- Jordan Creek An informational presentation will be provided by Public Works staff regarding PIC Program work in the Jordan Creek- Lummi Bay watershed. Background and Purpose Lummi Bay is a critical shellfish growing area for Lummi Nation. Jordan Creek, which discharges into the northern portion of Lummi Bay exhibits bacteria levels that exceed both state and Lummi Nation water quality standards. In the past two years, increasing levels of bacteria have been observed in Lummi Bay resulting in the Washington State Department of Health classifying this shellfish growing area as "Of Concern" in the 2016 Annual Growing Area Review. Due to the continued increase of bacteria levels over the last year, we anticipate the area will be classified as "Threatened" in the 2017 Annual Growing Area Review. With the current seasonal closures of Portage Bay shellfish growing areas, a downgrade in Lummi Bay would have a significant adverse impact on Lummi tribal members. In December 2017, Lummi Nation sent a letter to the Washington State Department of Ecology to express concerns about declining water quality in Lummi Bay and to request that Ecology, in collaboration with other local and state agencies, take a proactive approach to reversing the pattern of increasing bacteria levels. This presentation will provide an overview of PIC Program efforts, under the Whatcom Clean Water Program, that will be undertaken in the Jordan Creek watershed in 2018. If you have any questions, please contact Erika at extension 6294. Attachment December 19, 2017 Ms. Maia Bellon, Director Department of Ecology P.O. Box 47600 Olympia, WA 98504-7600 SUBJECT: Jordan Creek Water Quality and Tribal Shellfish Beds in Lummi Bay Dear Maia, I am writing to express my concerns regarding deteriorating water quality in Lummi Bay, an important shellfish growing area on the Lummi Indian Reservation (Reservation) that is being impacted by fecal coliform contamination originating off -Reservation in the Jordan Creek watershed. Jordan Creek drains a watershed of approximately 4,097 acres, 3,870 acres of which are located upstream of the northern Reservation boundary, and discharges to Lummi Bay via the Northern Distributary of the Lummi River (Figure 1). As it flows onto the Reservation, Jordan Creek has had very high fecal coliform counts and has consistently failed to meet the Lummi Nation Water Quality Standard for fecal coliform since 1996. The chronic and continuous fecal coliform contamination in Jordan Creek is likely causing elevated fecal coliform counts in the Lummi Bay shellfish growing area, which lead to the National Shellfish Sanitation Program monitoring site nearest to the freshwater outlet of Jordan Creek to be placed in `Concerned' status in 20161. As such, it has become increasingly urgent that this longstanding problem be completely and permanently resolved. Potential sources of bacterial pollution in the Jordan Creek watershed include commercial agricultural facilities, hobby farms, on -site septic systems, and other non - point sources. Jordan Creek Water Quality: Jordan Creek is classified Class AA Freshwaters under the Water quality Standards for Surface Waters of the Lummi Indian Reservation (Lummi Administrative Regulation 17.07). The Class AA Freshwater fecal coliform criteria are: • Geometric mean not to exceed 50 colonies/100ml O 90t" percentile not to exceed 100 colonies/100mi • Minimum 30 samples used to calculate criteria Water quality at the monitoring site located where Jordan Creek enters the Reservation (site SW011) has consistently failed to meet both the geometric mean and the 90t" percentile fecal coliform criteria (Figure 2). As of May 2017, the fecal coliform geometric mean and 90" percentile at site SW011 were 123.7 colonies/100 ml and 728.2 colonies/100 ml, respectively. Due to the proximity of site SW011 to the Reservation boundary, off -Reservation sources of contamination into the Jordan Creek watershed are the only cause of elevated fecal coliform counts at site SW011. Downstream of the Reservation boundary, Jordan Creek combines with the Northern Distributary of the Lummi River, a relic channel of the Lummi River that no longer receives surface water flow from I A copy of the December 2016 WDOH Office of Environmental Health and Safety Annual Growing Area Review for Lummi Bay is enclosed for reference 9 Jordan Creek and the Watersheds 201742-11-i,•a2-46 Northern Distributary of the ® Surface Water Sample Site Lumml River Watersheds ° WaOOH sample site and Water Quality Sample ffvdrograahy(L=T�) Site Locations Lumml Reservation Boundary Figure 1. Jordan Creek/Northern Distributary of the Lummi River watershed and water quality sample site locations 2 10 2504 K11I1] F~ 0 1500 a U v E L .2 1000 a tJ is u N `L 500 It, z Observation 90th Percentile Geometric Mean 90th Percentile Criterion —Geometric Mean Criterion Figure 2. Fecal coliform trends at SWO11(Jordan Creek at Reservation boundary) from 1993 to May 2017, including sample results, geometric mean statistics, 90`h percentile statistics, and Class AA Freshwater fecal coliform criteria under the Water Quality Standards for Surface Waters of the Lummi Indian Reservation (Lummi Administrative Regulation 17.07). Fecal coliform observations capped at 2,500 CFU/100mi for this figure; actual values used for statistics calculation. the Lummi River. The Northern Distributary of the Lummi River also contributes fecal coliform into the watershed where it crosses the Reservation boundary (monitoring site SW010). However, this site typically has low flows, flows only intermittently, and is frequently stagnant, suggesting that this drainage is not the primary source of fecal coliform loading into the northeast region of Lummi Bay. Lummi Bay Water (Quality: In consultation with the Lummi Nation and pursuant to the Shellfish Consent Decree (Order Regarding Shellfish Sanitation, United States v. Washington [Shellfish], Civil Number 9213, Subproceeding 89-3, Western District of Washington, 1994), the Washington State Department of Health (DOH) is responsible to the federal Food and Drug Administration to ensure that the National Shellfish Sanitation Program (NSSP) standards for certification of shellfish growing waters are met on the Reservation. The NSSP fecal coliform criteria are: • Geometric mean not to exceed 14 colonies/100ml a 90th percentile not to exceed 43 colonies/100ml ® Minimum 30 samples used to calculate criteria National Shellfish Sanitation Program (NSSP) monitoring in Lummi Bay has recently found high fecal coliform counts at the monitoring site near the mouth of Jordan Creek/Northern Distributary of the Lummi River (site DOH286), which resulted in this site being placed in 'Concerned' status as of 3 11 December 2016 due to the 90'h percentile statistic. At year-end 2016, the 90u' percentile was 25.5 colonies/100ml — as of October 2017, the 90th percentile was 31.0 colonies/100ml (Figure 3). 80 ____ __w._. __.. . i 70 w _ .__._.... _ _._ __ _._ __..-. _ _----_.. 60 _.______ . __ _ _y_. __ _ , _ _ _ ____ __.._,_.. __ _ _ _ _. _._.. - ..--- r.. v 30 v �r ea. 20 ___.._ _ . . 10 ---_ _ __-_- ����o `��1�3i��`�g���`oy`�3`o� `9`Q 1,��o�y\1��a,�h,�,`ry�`oo`y��y$`y�,ti 4",Q`�`ti ry`�1tybhvN Observation 90th Percentile 11, --Geometric Mean _90th Percentile Criterion Geometric Mean Criterion Figure 3. Fecal coliform trends at DH286 (Lummi Bay nearest to outlet of Jordan Creek/Distributary of the North Lummi River) from 2002 to October 2017, including sample results, geometric mean statistics, 90th percentile statistics, and Class AA marine fecal coliform criteria under the Water Quality Standards for Surface Waters of the Lummi Indian Reservation (Lummi Administrative Regulation 17.07) and the National Shellfish Sanitation Program. This deterioration in water quality at site DON 286 in Lummi Bay is gravely concerning and it is clear that off -Reservation fecal coliform pollution is contributing to the problem. Because off -Reservation fecal coliform sources continue to adversely impact Lummi Nation waters, I am requesting that Ecology adopt a proactive approach to resolving elevated fecal coliform counts in the Jordan Creek watershed to avoid further degradation of water quality in Lummi Bay. Specifically, I am requesting that Ecology, in collaboration with other state and local agencies as appropriate: (1) commence ambient water quality monitoring in the Jordan Creek watershed; (2) conduct source identification tracking in the Jordan Creek watershed to determine the location and extent of bacterial sources; (3) conduct inspections of septic systems, commercial animal facilities, and hobby farms to ensure compliance and use of best management practices; (4) provide technical assistance to landowners in the Jordan Creek watershed for implementation of best management practices and farm plans to reduce bacterial loading; and (6)undertake enforcement actions as necessary. 4 12 Based on past experience in the Nooksack River watershed and the Portage Bay shellfish harvesting area closures, without continued technical assistance, compliance inspection activities, and water quality monitoring and source identification, the likelihood of continuing declining water quality or future downgrades of tribal shellfish beds in Lummi Bay is significantly increased. History has shown that a reactive management approach leads to closed shellfish beds — I look forward to working with you to avoid repeating past mistakes and impacts to tribal reserved Treaty resources and tribal shellfish harvesting areas. Please keep me informed regarding the actions that your agency takes in response to this request and please notify me (360-312-2328 or rnerlei@lummi-nsn.gov) or the Interim Water Resources Manager, Kara Kuhlman (360-312-2128 or karak@lummi-nsn.gov), of my staff to request any support needed from my department. Sincerely, i Merle Jefferson, E cutive Director Lummi Natural Resources Department Enclosure: 2016 Lummi Bay Annual Growing Area Review cc Doug Allen, WA Department of Ecology Bellingham Field Office Manager John Wiesman, DrPH, MPH, WA DOH Secretary of Health Rick Porso, WA DOH Shellfish Program Office Director Scott Berbells, WA DOH Shellfish Program Growing Area Section Manager Lawrence Sullivan, WA DOH Shellfish Program Growing Area Section Unit Supervisor Christine Psyk, EPA Region 10 Office of Water and Watersheds Acting Director Westley Foster, EPA Region 10 Tribal Coordinator Derek Sandison, WA Department of Agriculture Director Ginny Prest, WA Department of Agriculture Nutrient Management Program Manager Jon Hutchings, Whatcom County Public Works Director Gary Stoyka, Whatcom County Natural Resources Program Manager George Boggs, Whatcom Conservation District Executive Director 13 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2018-092 CLEARANCES Initial Date Date Received in Office Agenda Date Assigned to: Originator: CSS 2127118 I/fCo1uncil L� f_ � �� t \`�J E D MAR 0 6 2018 P T 6� COUNCIL 3113118 Natural Resources Division Head: CSS 2127118 Dept. Head: q /1 ,# Prosecutor: tJ- 03 /0 J AS Purchasing/Budget: Executive: TITLE OF DOCUMENT.• Presentation of 2017 Public Works Natural Resources Annual Report ATTACHMENTS. 2017 Public Works Natural Resources Annual Report SEPA review required? ( ) Yes ( X ) NO SEPA review completed? ( ) Yes ( ) NO Should Clerk schedule a hearing? ( ) Yes ( X ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Public Works Natural Resources Division staff will present the 2017 Public Works Natural Resources Annual Report to Council. COMMITTEE ACTION.• COUNCIL ACTION.• Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at. www.co.whatcom.wa.us/council. 14 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Natural Resources Division The mission of the Whatcom County Public Works Natural Resources Division is to protect public health, safety, and welfare and preserve the natural environment by providing services in the areas of water quality protection, water resource management, marine resource protection, salmon recovery, and other ecosystem - related natural resources. Funding for Natural Resources programs comes primarily from the Whatcom County Flood Control Zone District supplemented by state and federal grants. In 2017, a full time staff of 10 worked with assistance from part time interns to provide services in the following areas: • Invasive species control • Marine resource protection • Water quality protection • Salmon recovery • Water supply management • Environmental technical assistance Page 1 Clockwise from upper right: Wayne Drop plays the poop toss game at the Run with the Chums, sampling for aquatic invasive weeds in Lake Whatcom, improved Nooksack River side channel in Deming, diving into Silver Lake during an aquatic plant survey. 16 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Invasive Species Noxious Weeds Whatcom County's Noxious Weed Program focuses on working with landowners to control noxious weeds on their properties as required by state law. Noxious Weed staff provides landowners with advice and information for managing invasive weeds in many different environments: residential landscapes, pastures, forests, streambanks, lakes, marine shorelines, and wherever a difficult plant is creating problems. In addition, staff also partners with agencies and groups on local weed management projects where invasive plant problems cross multiple property lines. This includes managing knotweed along our roads and the Nooksack River, controlling flowering rush in Silver Lake, conducting Spartina surveys and management on our marine shorelines, and performing ongoing surveys of local lakes for early detection of invasive aquatic weeds. 2017 Accomplishments • Worked directly with approximately 800 landowners and land managers to address invasive weed problems • Provided information at 12 public events; gave 19 classes and trainings to local groups, landowners, managers, and agency staff • Conducted aquatic plant inventory and surveys on Lake Whatcom, Lake Samish, Lake Terrell, Silver Lake, and Cain Lake • Removed more than 12,000 pounds of noxious weeds by hand from county roadsides and sensitive areas Whatcom County Noxious Weed Field Inspector Cevan Schmitt (right) and Sonny Gohrman (left) of the Washington State Department of Agriculture clipping Spartina plants in a tide flat Page 2 17 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Aquatic Invasive Species In response to the threat of Aquatic Invasive Species (AIS), the City of Bellingham, Whatcom County, and Lake Whatcom Water and Sewer District created the Whatcom Boat Inspection Program. This program is supported through the ongoing collaboration of all three partners. In 2017, the Boat Inspection Program completed its sixth season of required inspections for all watercraft launching on Lake Whatcom and Lake Samish. The objective of the program is to prevent introducing AIS into our local waters. Zebra and quagga mussels, very serious threats to the health and functions of freshwater bodies, are among the targeted species of the Boat Inspection Program. Staff also inspect for other AIS, including aquatic plants like Eurasian watermilfoil. For more detail on 2017 program results visit the Whatcom Boat Inspections website and view the interactive story map at whatcomboatinspections.com/2017-story-map. 2017 Accomplishments • Conducted 12,150 watercraft inspections at Lake Whatcom and Lake Samish • Inspected watercraft that had previously visited 728 different waterbodies in 45 different states and provinces • Received over 1,635 visitors to AIS check stations asking for information on the program City of Bellingham AIS Inspector Randy Lewis inspecting a fishing boat for AIS Page 3 iff Whatcom County Public Works Natural Resources Division — 2017 Annual Report Marine Resources Whatcom County Marine Resources Committee Natural Resources provides staff support for the Whatcom County Marine Resources Committee (MRC). The MRC is a citizen -based committee comprised of 19 members working to address local marine issues and recommend remedial actions to local authorities. There are five interest groups represented on the MRC: Conservation and Environmental Interest, Economic Interest, Recreational Interest, Relevant Scientific Expertise, and Citizen At -Large. In addition, the MRC has representation from elected officials, local tribes, and local government staff. The MRC strives to raise awareness of marine issues and encourage marine stewardship through education and community events and to gather support for remedies consistent with the Northwest Straits Initiative Benchmarks for Performance. For more information on the MRC, visit www.mrc.whatcomcounty.org. 2017 Accomplishments • Co -hosted five public speaker events with the Whatcom Watershed Information Network (WWIN), including the two-day Baker to Bay Symposium and one -day Water Supply Symposium • Staffed local community outreach events promoting clean water and shellfish resources protection using the MRC display, fact sheets, and hands-on materials • Supported Whatcom Water Week and hosted two Water Week events • Completed preliminary habitat surveys for a pilot Olympia Oyster restoration project in north Chuckanut Bay • Completed design and production of the Jerry's Journey interpretive trail at Birch Bay State Park • Monitored bull kelp density at southwest Lummi Island, Aiston Preserve, Alden Bank, and Gulf Road beach in collaboration with the Northwest Straits Commission • Continued twice a month fecal coliform bacteria water quality sampling in north Chuckanut Bay to characterize seasonal variation of bacteria levels and inform water quality improvement efforts • Hosted monthly public meetings providing an opportunity for community members to engage in marine resource discussions and presentations • Conducted monthly forage fish spawning surveys at two beaches in Bellingham in collaboration with Washington Department of Fish and Wildlife and the Northwest Straits Commission • Launched the North Sound Stewards program, a pilot citizen science training program, in partnership with RE Sources for Sustainable Communities 11(A,71�W YYV VtJVN'Llf. / Page 4 19 Whatcom County Public Works Natural Resources Division — 2017 Annual Report MRC volunteers Doug Stark and Bob Seaman with live oysters at the MRC booth at Bellingham SeaFeast MRC Volunteers conducting kayak based bull kelp survey at Gulf Road beach Page 5 20 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Shellfish Protection Districts Natural Resources also supports the Birch Bay, Drayton Harbor, and Portage Bay Shellfish Protection Districts. These districts are established, according to state law, for shellfish growing areas that have been closed to shellfish harvest due to declining water quality. Each district has a citizen advisory committee to provide recommendations on the district's shellfish recovery plan. The primary purpose of the shellfish protection districts is to work with community members and partners to keep fecal coliform bacteria out of creeks and rivers flowing to shellfish beds so that year-round shellfish harvest is safe for human consumption. This work is accomplished through the Pollution Identification and Correction (PIC) program described on the next page. 2017 Accomplishments • Provided staff support for five shellfish protection district advisory committee meetings and additional data and outreach subcommittee meetings • Coordinated shellfish bed recovery efforts with the Washington State Department of Health • Completed annual shellfish protection district reports for each of the three districts • Additional work completed through the PIC program PIC program staff at the Drayton Harbor Shellebration celebrating the second year of reopened shellfish beds Page 6 21 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Water Quality Protection Pollution Identification and Correction (PIC) Program Whatcom County's Pollution Identification and Correction (PIC) program uses water quality monitoring data to identify priority areas for water quality improvement to meet public health and shellfish bed safety standards. The PIC program provides water quality monitoring, source tracking, community outreach and education, and technical and financial assistance to landowners for the purpose of keeping fecal coliform bacteria out of waterways. Natural Resources staff work closely with Whatcom County Health and Planning and Development Services; Whatcom Conservation District (WCD); Washington State Departments of Agriculture, Ecology, and Health; tribes; federal agencies; and other local organizations to identify and address potential bacteria sources. WCD: 29 farm plans completed and 30 best management practices (BMPs) installed • Mailed over 1,000 septic system rebate flyers and issued 82 rebates for septic system evaluation, equipment, or pumping costs totaling $19,850 • Provided six presentations for community groups, County Council, and agency workshops about water quality and the PIC program • Participated in 11 community outreach events including: Small Farm Expo, Whatcom (` Conservation District Native Plant Sale, Custer community meeting, GEMS (Girls in Engineering, Natural Resources staff Monette Boswell Math, and Science) Fair, Birch Bay Beach Fest, collecting a water quality sample Drayton Harbor Days, Northwest Washington Fair, Run with the Chums, Whatcom Water Week, Bellingham SeaFeast, and the 2"d annual Drayton Harbor Shellebration • Distributed over 150 dog waste pick-up kits • Completed two video shorts with focused water quality messages to use on the County website and Facebook page • Distributed 2,000 water quality newsletters • Improved public access to water quality information and current monitoring data on the Whatcom County website • Worked with partners to improve water quality outreach and data collection coordination Page 7 22 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Lake Whatcom Management Program The Lake Whatcom Management Program (LWMP) is a collaborative effort between Whatcom County, the City of Bellingham, and the Lake Whatcom Water and Sewer District to jointly implementprograms that improve water quality in Lake Whatcom. Natural Resources staff work within a larger LWMP team including staff from Whatcom County Public Works Stormwater and Maintenance and Operations, Whatcom County Health and Planning and Development Services Departments, City of Bellingham Public Works, and others. Currently, Natural Resources staff support the Lake Whatcom Total Maximum Daily Load (TMDL) response, the Lake Whatcom Homeowner Incentive Program (HIP), and education and outreach efforts within the overall LWMP. Natural Resources contributions to these program areas in 2017 are summarized below. For a complete summary of all LWMP accomplishments in 2017, visit www.lakewhatcom.whatcomcounty.org/resources and download the 2017 LWMP Progress Report. 2017 Accomplishments • Facilitated the formation of a Lake Whatcom Stormwater Utility Service Area to provide a supplemental local funding source to implement the Lake Whatcom Management Program • Worked with City of Bellingham and Whatcom Conservation District staff to implement the revised HIP including outreach to homeowners, training to certify HIP trained professionals, and developing program databases • Developed new, streamlined HIP procedures like expedited reimbursements and permitting • Facilitated LWMP Education Team meetings and participated in follow up to implement education and outreach objectives outlined in the LWMP five-year work plan Left: New Lake Whatcom Homeowner Incentive Program (HIP) homepage Right: New HIP -sponsored native landscaping area installed on school grounds in the Lake Whatcom watershed Page 8 23 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Salmon Recovery Salmon Recovery in Water Resource Inventory Area (WRIA) 1 is a collaboration between Whatcom County, the salmon co -managers (Lummi Nation, Nooksack Tribe, and Washington Department of Fish and Wildlife), City of Bellingham, small cities of Whatcom County, Nooksack Salmon Enhancement Association (NSEA), Whatcom Land Trust, Whatcom Conservation District, and many others in the community. The local vision of salmon recovery is to return self-sustaining salmonid runs to harvestable levels through the restoration of rivers and marine shorelines, promotion of natural habitat forming processes, careful use of hatcheries, and responsible harvest. Implementation of this vision is guided by the WRIA 1 Salmonid Recovery Plan, which was approved by local governments and the salmon co -managers in 2005 and incorporated into the federally approved Puget Sound Chinook Recovery Plan in 2006. The WRIA 1 Watershed Management Board guides plan implementation (more information on WRIA 1 below). Natural Resource staff participates in technical assessments that guide refinement of habitat protection and restoration priorities. Staff also conceives and develops project proposals, reviews annual salmon recovery projects proposed for grant funding, and helps integrate salmon recovery into projects done under other county programs such as River & Flood, Roads, and Stormwater. Learn more about WRIA 1 Salmon Recovery Program at salmonwrial.org. 2017 Accomplishments • Represented Whatcom County in WRIA 1 salmon recovery process including restoration project strategy revisions, project planning, and review and ranking of state and federal project funding proposals • Acquired grant funding for the Lower Mainstem Nooksack Salmon Habitat Assessment to provide salmon habitat restoration and protection information in support of integrated floodplain management plan development • Continued development of the WRIA 1 fish barrier correction strategy • Sponsored a Washington Conservation Corps (WCC) crew hosted jointly with the Nooksack Salmon Enhancement Association (NSEA) to support: water quality sampling; maintenance of salmon recovery, flood, stormwater, and instream flow augmentation structure project sites; and public education and outreach events • Reviewed development proposals in the floodplain for Endangered Species Act (ESA) compliance • Staffed community outreach events promoting knowledge about salmon and key actions needed to recover healthy salmon populations Maturing plantings and complex instream habitat formed by Acme Early Chinook project log jams Page 9 24 Whatcom County Public Works Natural Resources Division — 2017 Annual Report Water Resources Management and Watershed Planning The Natural Resources Division supports coordinated water resources and watershed planning efforts for Whatcom County. This support includes being the lead for integrated watershed management and Puget Sound Ecosystem recovery efforts for Water Resource Inventory Area (WRIA) 1, which includes the Nooksack River basin and adjoining smaller coastal watersheds. For more information on the WRIA 1 Watershed Management Project, visit wrialproiect.whatcomcounty.org. 2017 Major Accomplishments • Provided administrative support for integrated watershed planning efforts in Whatcom County including supporting the WRIA 1 Watershed Management Board,, WRIA 1 Management Team, Watershed Staff Team, Salmon Recovery Staff Team, and the WRIA 1 Planning Unit • Led Puget Sound ecosystem recovery coordination efforts in Whatcom County under the auspices of the Whatcom Local Integrating Organization (LIO) • Participated in preparation of near -term actions for the 2018 Puget Sound Action Agenda update • Initiated the fourth of four phases of the Lynden-Everson-Nooksack-Sumas groundwater flow model to provide an understanding of the interactions of groundwater and surface water and aid in water resource planning decisions • Participated on county -wide water supply task force • Participated on County task force to address the Hirst Supreme Court Decision on use of exempt wells • Provided technical input to the geological hazards and habitat conservation elements of the 2017 Critical Areas Ordinance updates • Managed the operation and maintenance of the Friday Creek flow augmentation structure to ensure in -stream flows are maintained to support aquatic life and are not impacted by domestic water withdrawals from Lake Samish Environmental Technical Assistance Natural Resources staff provide technical assistance to other Whatcom County programs, community groups, and government agencies in the program areas listed above. For example, staff evaluate geologic hazards, identify unknown weeds, provide project management and permitting support, and review and comment on technical documents. For More Information For more information on Whatcom County Public Works Natural Resources Programs call (360) 778-6230 or visit http:\\Whatcomcounty.us/308/Public-Works. Rockfall damage to a home near Lake Whatcom requiring technical assistance and response Page 10 25 Whatcom County Public Works Natural Resources Division — 2017 Annual Report whatcomboatinspections.com f C www.whatcomcounty.us/1072/Water-Quality 26 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2018 76 A CLEARANCES Initial Date Date Received in Council O ace Agenda Date Assigned to: Originator: 3/7/2018 3/13/2018 SCOTW Division Head: Dept. Head. Prosecutor: Purchasin /Bud et: Executive: TITLE OF DOCUMENT.• Discussion of recommendations outlined in Cascadia Law Group report ATTACHMENTS: SEPA review required? ( ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Should Clerk schedule a hearing ? ( ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Discussion of recommendations outlined in Cascadia Law Group report entitled Reducing Impacts from Fossil Fuel Projects COMMITTEE ACTION: COUNCIL ACTION. Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the Count y's website at: www.co.whatcom.wa.us/council. 27 Cascadia Law Group ENVIRONMENTAL ATTORNEYS Cascadia Law Group PLLC 1201 Third Avenue, Suite 320 Seattle, WA 98101 606 Columbia Street NW, Suite 212 Olympia, WA 98501 Rodney L. Brown, Jr. rbrown@cascadialaw.com 206.292.2605 Dennis McLerran dmclerran@cascadialaw.com 206.292.2646 Jeffrey D. Goltz jgoltz@cascadialaw.com 360.528.3026 a:] TABLE OF CONTENTS 1 Introduction.................................................................................. 5 2 Legal Issues.................................................................................6 2.1 Federal & State Constitutional Issues.......................................7 • 2.1.1 Commerce Clause .......—............................................................... 7 • 2.1.2 Supremacy Clause (Preemption)....................................................8 • 2.1.3 Equal Protection Clause................................................................10 • 2.1.4 Due Process Clause and the Takings Clause...............................10 2.2 Other Federal Issues..............................................................12 • 2.2.1 Treaty Fishing Rights....................................................................12 • 2.2.2 The Magnuson Amendment..........................................................14 2.3 State Land Use Law Issues....................................................15 • 2.3.1 Procedural Issues.........................................................................15 • 2.3.2 Takings Issues..............................................................................15 • 2.3.3 SEPA Compliance.........................................................................16 • 2.3.4 GMA & Shoreline Consistency Requirements...............................16 • 2.3.5 Protection of Fish Habitat Under State Law..................................16 3 Lessons From Review of Activity and Litigation in Other Jurisdictions .................................... .............................17 3.1 Portland, Oregon....................................................................17 3.2 Benicia, California...................................................................20 3.3 Some Preliminary Lessons Learned.......................................21 4 Recommendations....................................................................22 4.1 Bolster County Authorities Under the Major Projects Permit Review Process.. .................................................................... 22 4.2 Require a Conditional Use Permit for Certain Identified Uses.25 4.3 Prohibit Certain Uses...............................................................27 Reducing Impacts from Fossil Fuel Projects Page 2 of 293 February 23, 2018 29 4.4 A Hybrid Approach.................................................................28 4.5 Adopt Franchise Ordinances..................................................28 5 Overarching Recommendations.............................................29 5.1 Conformity and Internal Consistency......................................29 5.2 Major Project Permit Review Provisions.................................29 5.3 SEPA Policy Revisions...........................................................30 5.4 Provisions for Change of Use or Change of Occupancy ......... 30 5.5 Consistency Provisions Regarding DNR Aquatic Reserve, the Magnuson Amendment and Tribal Treaty Rights..............31 6 Appendices................................................................................32 6.1 Appendix 1: Additional Issues in Other Jurisdictions...............34 • 6.1.1 South Portland, Maine...................................................................34 6.1.2 Oakland, California........................................................................38 • 6.1.3 Vancouver, Washington................................................................38 • 6.1.4 Spokane, Washington...................................................................40 • 6.1.5 Tacoma, Washington.................................................................... 40 • 6.1.6 Hoquiam, Washington...................................................................41 • 6.1.7 Aberdeen, Washington..................................................................42 • 6.1.8 Coos County, Oregon...................................................................42 6.2 Appendix 2: Additional media reports regarding current status of fossil fuel actions in other jurisdictions ......................45 6.3 Appendix 3: Wal-Mart Stores, Inc. v. City of Turlock...............47 6.4 Appendix 4: Lighthouse v. Inslee complaint ............................70 6.5 Appendix 5: LUBA Decision 2017-001..................................124 6.6 Appendix 6: Oregon Court of Appeals decision ....................163 6.7 Appendix 7: U.S. Corps of Engineers 2016 Memorandum forRecord.............................................................................178 6.8 Appendix 8: Northwest Sea Farms v. United States Army Corpsof Eng'rs.....................................................................213 6.9 Appendix 9: DNR Commissioner's January 2017 Order Expanding Cherry Point Aquatic Reserve.............................225 Reducing Impacts from Fossil Fuel Projects Page 3 of 293 February 23, 2018 30 6.10 Appendix 10: Magnuson Amendment, 33 USC 476..............228 6.11 Appendix 11: Franchise Authority.........................................230 6.12 Appendix 12: WAC 197-11-660, Substantive authority and mitigation.............................................................................. 233 6.13 Appendix 13: Tacoma interim land use ordinance 2847 .......235 6.14 Appendix 14: Cascadia Law Group and attorneys responsible for this report.....................................................277 Reducing Impacts from Fossil Fuel Projects Page 4 of 293 February 23, 2018 31 1 Introduction The Whatcom County Council, with the concurrence of the Prosecuting Attorney, retained Cascadia Law Group to assist with reviewing options for ordinances to protect the local community from the impacts of proposed fossil fuel transshipment facilities in Whatcom County. This project is intended to implement the following provision in the Whatcom County Comprehensive Plan: The County shall undertake a study to be completed if possible by December of 2017 to examine existing County laws, including those related to public health, safety, development, building, zoning, permitting, electrical, nuisance, and fire codes, and develop recommendations for legal ways the County may choose to limit the negative impacts on public safety, transportation, the economy, and environment from crude oil, coal, liquefied petroleum gases, and natural gas exports from the Cherry Point UGA above levels in existence as of March 1, 2017. To provide clear guidance to current and future county councils on the County's legal rights, responsibilities and limitations regarding interpretation and application of project evaluation under Section 20.88.130 (Major Projects Permits) of the Whatcom County Code. The County should consider any legal advice freely submitted to the County by legal experts on behalf of a variety of stakeholder interests and make that advice publicly available. 1. Based on the above study, develop proposed Comprehensive Plan amendments and associated code and rule amendments for Council consideration as soon as possible. 2. Until the above -mentioned amendments are implemented, the Prosecuting Attorney and/or the County Administration should provide the County Council written notice of all known pre -application correspondence or permit application submittals and notices, federal, state, or local, that involve activity with the potential to expand the export of fossil fuels from Cherry Point. Reducing Impacts from Fossil Fuel Projects Page 5 of 293 February 23, 2018 32 On September 26 and October 17, 2017, we gave preliminary oral reports to the Council focused on two topics: ➢ A summary of legal issues, constitutional and otherwise, the Council must bear in mind in considering such an ordinance, in light of efforts by, and litigation in, other jurisdictions around the country. ➢ A review of the legal issues surrounding the already -enacted moratorium ordinance 2017-011 and previous versions of that moratorium.' In this written report, we provide the following research and analysis: ➢ We describe in more detail legal issues Whatcom County may face in undertaking any regulation to reduce impacts of fossil fuel facilities. We have conducted a review of similar efforts by other jurisdictions, some of which have resulted in litigation. We outline two of the most significant of those in the section below entitled "Lessons from Review of Activity and Litigation in Other Jurisdictions," and Appendix 1 of this report includes a more complete listing of our survey results. ➢ We include as Appendix 2 selected articles reporting on some of the recent activities in several jurisdictions involved in similar fossil fuel export reviews. ➢ We summarize options for the Council giving the pros and cons of each. ➢ We make recommendations regarding some of those options. 2 Legal Issues The legal issues generally fall into two categories: constitutional (mainly federal constitutional issues) and state land use. ' In preparing the presentations to the Council, we noted, in part from experience in other jurisdictions, that litigation over any such ordinance is reasonably probable, and public discussion of potential litigation and legal risks is likely to result in adverse legal consequences to the County. Accordingly, it was appropriate that the presentations were conducted in executive session. Reducing Impacts from Fossil Fuel Projects Page 6 of 293 February 23, 2018 33 2.1 Federal $ State Constitutional Issues 2.1.1 Commerce Clause Article I, section 8, clause 3 of the United States Constitution lists one of the enumerated powers of Congress as the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This is probably the constitutional issue of greatest concern to local governments attempting to protect their local interests in the face of proposed fossil fuel -related developments. The Supreme Court has determined that this is more than just an enumeration of federal powers. It has found that there are "negative implications" to this assignment of power that serve as limits on state and local power. It has articulated a three -prong test for use in reviewing state or local laws under the Commerce Clause. If a state or local enactment violates any of these, it would be invalid: Discrimination. First, the ordinance may not discriminate against interstate commerce. Essentially, this means that the ordinance may not treat out-of-state business interests less favorably than in -state interests. Typical of suspect legislation challenged under this prong are tax preferences for businesses located within a state. The discrimination may either be "facial," meaning that the text of the ordinance favors in -state interests, or the ordinance can have a "discriminatory purpose or effect." 2 Regulation of Extra -Territorial Conduct. Second, the ordinance may not regulate extra -territorial (out-of-state) conduct. State and local enactments are rarely invalidated on this basis, but every circuit court of appeals, except for the 5th Circuit, has included this prong in its dormant Commerce Clause analysis. Arguments of extraterritorial effect are often made by challengers to state and local laws. Balancing of Local Benefits and Impact on Commerce. Third, if the ordinance regulates interstate commerce, such regulation may not be "clearly excessive in relation to the putative local benefits." This is called the "Pike balancing test" after a Supreme Court case with that name. This last prong is where facts become important. It is 2 This latter issue was significant in,the City of Portland litigation discussed below. Reducing Impacts from Fossil Fuel Projects Page 7 of 293 February 23, 2018 34 important to focus on traditional land use and environmental considerations (e.g., public health and safety, compatibility of uses) to minimize exposure to claims that an ordinance is about restricting commerce. A clear record needs to be built around these traditional land use and public safety considerations and the Council must avoid findings, statements, or justifications that would lead to Commerce Clause concerns An example of how federal courts deal with land use context in Commerce Clause challenges is Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d 1023 (E.D. Cal. 2007). The Wal-Mart court granted summary judgment in favor of the City in a facial challenge to zoning regulations that prohibited "discount superstores," defined as stores of over 100,000 square feet containing both a warehouse store and a grocery store. The rationale for prohibiting superstores was based on traffic flows, air quality and prevention of "blight." The City cited independent studies that found discount superstores were detrimental to the viability of existing small shops and could lead to their failure and resulting urban blight. The court found that the ordinance did not violate Commerce Clause restrictions or run afoul of substantive due process concerns, because the City created a detailed record of a well -stated "rational basis" for the regulations. The Commerce Clause analysis held that the City's regulation applied equally to both in- and out-of-state businesses and did not discriminate. Wal-Mart is attached to this report as Appendix 3. 2.1.2 Supremacy Clause (Preemption) Article VI, clause 2, of the United States Constitution establishes that federal laws and treaties are "the supreme law of the land." Federal law "preemption" may be either "express" in that the federal statute prohibits certain state or local regulation, or it can be implied in one of two ways. It can "conflict" with local regulation, meaning that both the federal and the state regulatory provisions cannot co -exist, or it can be "field preemption," meaning that the federal regulatory program is so pervasive that there is no room for state regulation to operate. A number of federal statutes that regulate aspects of transportation or safety could preempt state or local regulation relating to fossil fuel projects. These include: Reducing Impacts from Fossil Fuel Projects February 23, 2018 Page 8 of 293 Commented [All: When discussing and providing direction to the Executive on what the County Council intends, a record is created regarding the County's rationale and intent that may be reviewed by a Court in a legal challenge. The Council should provide clear traditional police power reasons such as land use and environmental impacts on the local community and the Cherry Point aquatic area as the basis for taking action. Documenting these local concerns in reports and findings establishes a solid basis for action under the police powers recognized by the courts as traditional authorities of local government. There are a number of reports from the State Department of Natural Resources regarding the herring and aquatic resources that exist at Cherry Point. There are also Army Corps of Engineers' decision documents that document the treaty rights and fishing at and near Cherry Point that may be affected by additional development of piers and vessel traffic. 35 Federal Railway Safety Act (49 U.S.C. §20106(a)). The relevant language includes: (1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable. (2) A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety or security when the law, regulation, or order — (A) is necessary to eliminate or reduce an essentially local safety or security hazard; (B) is not incompatible with a law, regulation, or order of the United States Government; and (C) does not unreasonably burden interstate commerce. Interstate Commerce Commission Termination Act (49 U.S.C. §10101 atOeq!r). The ICCTA preempts laws that prevent or unreasonably interfere with railroad transportation, including matters regulated by the Surface Transportation Board (STB), such as the construction, operation, and abandonment of rail lines. Natural Gas Act (15 U.S.C. §717). The NGA preempts state and local regulation of pipelines approved by FERC. However, this does not preempt states from applying federal laws that are delegated to the states, such as the Clean Water Act's Section 401 water quality certification or the Coastal Zone Management Act (CZMA). Note that the CZMA incorporates local Shoreline Master Programs. Pipeline Safety Act (49 U.S.C. §60104(c)). The Pipeline Safety Act preempts states from regulating interstate pipelines. It states: "A State authority may not adopt or continue in force safety standards for interstate pipeline facilities or interstate pipeline transportation." However, a state may adopt more stringent safety standards for intrastate pipelines if the standards are compatible with the federal standards. Reducing Impacts from Fossil Fuel Projects Page 9 of 293 February 23, 2018 Commented [A2]: The County should stay away from directly regulating railway and pipeline safety concerns addressed directly by federal statutes as those are clearly within the province ofthe Federal government and locally pre-empted. 36 Hazardous Materials Transportation Act (49 U.S.C. §5125(a)-(b)). The HMTA preempts acts of states or localities that are inconsistent with federal regulations, would be an obstacle to carrying out the federal act, or, for a defined set of requirements, are not "substantively the same" as federal requirements. Ports and Waterways Safety Act (33 U.S.C. §1221 et seq.). The PWSA preempts state laws and regulations regarding vessel traffic in United States ports and waterways. See United States v. Locke, 529 U.S. 89 (2000). In addition, one recent court challenge to various state actions surrounding the proposed Millennium Bulk Terminal for coal export argues that the General Agreement on Tariffs and Trade (GATT) has a preemptive effect, since GATT Article XI states that "[n]o prohibition or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party ... on the exportation or sale for export of any product destined for the territory of any other contracting party." See Lighthouse Resources, Inc. v. Inslee, No. 3:18-cv-05005-RJB (W.D. Wash. Filed Jan. 3, 2018), the Complaint in which is attached to this report at Appendix 4. However, GATT's own Article XX does provide for exceptions where such restrictions may be necessary to protect human, animal or plant life, or health. 2.1.3 Equal Protection Clause The Equal Protection Clause of the 14th Amendment to the United States Constitution requires that no person be denied equal protection of the laws. Its counterpart in Article I, Section 12 of the Washington Constitution requires that no law grant to any citizens or corporation any privilege or immunity not also granted equally to other citizens or corporations. This is similar to the limitation in the Commerce Clause against discrimination against out-of-state interests. 2.1.4 Due Process Clause and the Takings Clause The Due Process Clause of the 14t" Amendment to the United States Constitution and its counterpart in Article I, Section 3 of the Washington Constitution have both a procedural and a substantive component. Reducing Impacts from Fossil Fuel Projects Page 10 of 293 February 23, 2018 37 Any state or local law regulating land use must provide procedural protections for those regulated. These procedural due process protections are typically met through notice, hearing, and public participation requirements of the Growth Management Act, the Shoreline Management Act, and the procedural provisions of local zoning and shoreline ordinances "Substantive Due Process" is more amorphous, but it has been applied to limit the reach of government regulation. State or local land use regulations must further some legitimate public purpose. In the context of land use and zoning cases the substantive due process requirement is met by establishing a police power or public health and safety purpose. An ordinance must be a "reasonable" exercise of the county's police power in order to pass muster under Article 11, § 11 of the Washington Constitution. A law is a reasonable regulation if it promotes public safety, health or welfare and bears a reasonable and substantial relation to accomplishing the purpose pursued. The wisdom, necessity, and expediency of the law are not for judicial determination, and an enactment may not be struck down as beyond the police power unless it is shown to be clearly unreasonable, arbitrary, or capricious. Weden v. San Juan County, 135 W n 2d 678, 692, 958 P.2d 273, (1998) (upholding a San Juan County ordinance banning jet skis on certain waters); see also Edmonds Shopping Center Associates v. City of Edmonds, 117 Wn.App. 344, 71 P.3d 233 (2003) (upholding an Edmonds ordinance banning new cardrooms and phasing out existing cardrooms over a five-year period). The Fifth Amendment of the United States Constitution also prohibits "taking" of property without just compensation. The Supreme Courts of both Washington and the United States have established a multi -part test for determining whether a taking has occurred. See Guimont v. Clarke, 121 Wn 2d 585, 854 P.2d 1 (1993), Edmonds Shopping Center Associates v. City of Edmonds, 117 W n. App. at 362; Lucas v. South Carolina Coastal Council, 505 US 1003, 112 S.Ct. 2886 (1992). There are two threshold questions. First, a court will determine whether the regulation destroys or derogates any fundamental attribute of property ownership, including the right to possess, to exclude others, to dispose of property, or to make some economically viable Reducing Impacts from Fossil Fuel Projects Page 11 of 293 February 23, 2018 use of the property. If the landowner claims less than a physical invasion or total taking and if a fundamental attribute of ownership is not otherwise implicated, the court proceeds to the second question. That question is whether the challenged regulation safeguards the public interest in health, safety, the environment, or the fiscal integrity of an area, or whether the regulation seeks less to prevent a harm than to impose on those regulated the requirement of providing an affirmative public benefit. If the answer to both questions is no, there is no taking. If the answer to one or both questions is yes, then additional analysis is required. The additional analysis includes consideration of two additional points. First, the court must determine whether the regulation advances a legitimate state interest. Second, the court would apply a balancing test to determine if the state interest in the regulation is outweighed by its adverse economic impact to the landowner, with particular attention to the regulation's economic impact on the property, the extent the regulation interferes with investment - backed expectations, and the character of the government action. Though a takings issue can likely be avoided in local regulation of fossil fuel facilities, it remains a frequently used argument in Washington land use litigation. To overcome a takings challenge, it will be important to ensure that there are other reasonable uses of the properties subject to new zoning. Accordingly, it is important to pay particular attention to allowing existing uses to continue, or to making sure the properties have reasonable alternative future uses under the zoning and shoreline codes These takings issues are discussed further in the section below on state land use issues. 2.2 Other Federal Issues The County should consider other federal issues as possible limitations to its authority, but also perhaps to defend against Commerce Clause or preemption claims. 2.2.1 Treaty Fishing Rights The treaties with Pacific Northwest Indian Nations protect a right to fish at usual and accustomed fishing grounds. See United States v. Washington, 443 U.S. 658 Reducing Impacts from Fossil Fuel Projects February 23, 2018 Page 12 of 293 Commented [A3]: Allowing existing uses to continue and reasonably expand will prevent claims that property rights have been "taken" under applicable legal standards. Further conversation regarding what code provisions should provide is necessary to give additional direction to Executive staff. If the Council is wanting to focus on restricting new uses such as additional piers, pipelines that don't serve an existing use or establishment of export terminals those uses can be made conditional uses, prohibited uses or uses subject to a discretionary review under a revised Major Projects process. Thresholds for triggering discretionary reviews could also be set in the County's codes, As discussed further in sections below, a "change of use" provision should be added to the County's codes. That would require a review of whether a new use or even a major addition to an existing use should be subject to additional environmental or discretionary land use reviews. The Council should discuss the effect, if any, of prior settlement agreements on restrictions on additional piers in the Cherry Point area with the County Prosecutor. 0T� (1979). In "Phase II" of that litigation, the right to take fish has been interpreted by the Ninth Circuit Court of Appeals to limit actions by the State of Washington and its local governments that may adversely impact fisheries habitat. While the parameters of such limitations on state and local action are still unclear, the Ninth Circuit's decision may be applied to impose an affirmative duty on state and local governments to protect habitat. The State of Washington has asked the United States Supreme Court to review a recent Ninth Circuit decision regarding treaty fishing rights violations caused by culverts the State built. See United States v. Washington, 853 F.3d 946 (9th Cir. 2017), rehearing denied and rehearing, en banc, denied 864 F.3d 1017, cart. granted Jan. 12, 2018 (Sup. Ct. No. 17-269). The case has now been accepted by the Supreme Court for review and may further refine the extent of the treaty fishing rights as applied to the facts presented by the culverts case. The State has argued, unsuccessfully so far, that the treaties do not create an affirmative duty in Washington to remedy defective culverts. The Western Washington Treaty Tribes can only bring such an action through a lawsuit initiated by the U.S. Department of Justice on their behalf as federal trustees. The U.S. and the Tribes have successfully asserted, up through appeals to the Ninth Circuit, that Washington does have an obligation under the treaties to remedy culverts that block fish passage. If their arguments prevail, then it may be possible that the treaty -rights rationale could be extended to other State actions impacting fisheries habitat. To the extent that state or local action is taken to protect fisheries habitat, the treaty rights decisions may be used as a defense to preemption. Certainly, in the context of any application of the Pike balancing test, the benefits of protection of fisheries habitat can be useful. For example, should the County decide to prohibit additional piers in its new shoreline or land use regulations, it might make a strong and justifiable rationale for that land use decision by citing treaty fishing rights as interpreted by the federal government in past decisions. As another option, the County could also defer to Federal interpretations of treaty rights in the context of necessary federal permits such as those of the Corps of Engineers. The treaty rights of the Lummi Nation were the basis for a Corps permit denial of the Gateway Pacific project's proposed pier. The County could decide not to change its land use and shoreline permitted uses and Reducing Impacts from Fossil Fuel Projects Page 13 of 293 February 23, 2018 M make a reference to having federal decisions made prior to a final county decision on new projects, or could make County decisions contingent on receiving federal approvals wherever treaty rights are considered as a matter of federal law. 2.2.2 The Magnuson Amendment Enacted to protect Puget Sound from adverse impacts of oil imports, the late Sen. Warren Magnuson's 1977 amendment to the Marine Mammal Protection Act likely would apply to exports of oil as well. It reads: Notwithstanding any other provision of law, on and after October 18, 1977, no officer, employee, or other official of the Federal Government shall, or shall have authority to, issue, renew, grant, or otherwise approve any permit, license, or other authority for constructing, renovating, modifying, or otherwise altering a terminal, dock, or other facility in, on, or immediately adjacent to, or affecting the navigable waters of Puget Sound, or any other navigable waters in the State of Washington east of Port Angeles, which will or may result in any increase in the volume of crude oil capable of being handled at any such facility (measured as of October 18, 1977), other than oil to be refined for consumption in the State of Washington. It limits federal authority to grant or issue permits that would result in an increase of the volume of crude oil handled at any given facility. If a local ordinance imposed a similar limit, the Magnuson Amendment could be used to defend it from any Commerce Clause or preemption claim, in that the local ordinance would not conflict with the federal law. The Amendment is attached to this report at Appendix 9. This issue has been raised regarding proposed developments at Cherry Point in the past, and is still before the Corps of Engineers and the courts with respect to a BP pier addition that was previously constructed. See Ocean Advocates, et al. v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005). We understand from discussions with the County Prosecutor's Office that a prior settlement agreement may have some bearing on the County's ability to impose limitations on additional docks within the Cherry Point Industrial District and adjacent shorelines. The Council should analyze this issue and seek advice from the County Prosecutor's Office regarding the intent, effect, and current applicability of the settlement agreement. Reducing Impacts from Fossil Fuel Projects February 23, 2018 Page 14 of 293 Commented [A4]: The County may wish to make findings that one reason new regulations ofadditional piers and uses that create significant additional vessel activity are needed is to protect herring stocks and traditional fisheries that exist off of Cherry Point. Citing past federal decisions as an additional rationale would bolster the findings by the County. The County could also make one of its decision making criterion be that project applicants provide a clear demonstration that a project affecting aquatic areas is consistent with tribal treaty rights through having obtained a Corps of Engineers' permit in advance of the County taking any action on new project permits. Once again, the Council should discuss the effect of prior settlement agreements with the County Prosecutor. Commented [AS]: The Magnuson Amendment is a limitation on the authority of federal agencies to issue permits that increase the volume of crude oil handled at any facility east of Port Angeles. The County could cite the Magnuson Amendment in its findings and could adopt decision snaking criteria that would require a showing that federal agencies have determined through a federal permitting decision that a new facility or expansion is consistent with the Magnuson Amendment. Similar to our recommendation on treaty rights, there could be a requirement that this be demonstrated prior to the County spending time and resources on making a local permitting decision. 41 2.3 State Land Use Law Issues Washington land use law provides multiple grounds for challenges. These include substantive and procedural due process claims, takings challenges, failure to maintain consistency with the Growth Management Act or the Shoreline Management Act, and failure to comply with the State Environmental Policy Act. We discuss each of these below. 2.3.1 Procedural Issues Under Constitutional due process requirements and state land use laws, state and local actions regulating land use must provide procedural protections for those regulated and the public being impacted. These reflect the need to provide notice and an opportunity to be heard where there is a property interest at stake. These procedural due process protections are typically met through notice, hearing and public participation requirements of the Growth Management Act, the Shoreline Management Act and the procedural provisions of local zoning and shoreline ordinances. Failure to comply strictly with these procedural requirements can lead to a successful challenge. Here, adoption and extensions of the existing moratorium present this issue and any final ordinance provisions must also comply. These process issues are a melding of constitutional and statutory law. The procedural protections of the GMA and SMA, though generally intended to satisfy constitutional due process concerns, may go beyond what the constitution actually requires. 2.3.2 Takings Issues Takings law remains one of the more confusing and difficult areas of land use law. The Fifth and Fourteenth Amendments of the United States Constitution prohibit "taking" of property without just compensation. The Growth Management Act incorporates these constitutional restrictions into state statute; among its development "goals" is RCW 36.70A.020(6): ,Property rights. Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions." Reducing Impacts from Fossil Fuel Projects Page 15 of 293 February 23, 2018 42 2.3.3 SEPA Compliance The State Environmental Policy Act (SEPA), Chapter 43.21 C RCW, requires state and local governments to review environmental impacts of proposed actions, including those under the Growth Management Act. Governments must make a threshold determination of whether the impacts of the proposed action are "significant adverse effects" that require preparation of an Environmental Impact Statement. The RCW was modified after adoption of the Growth Management Act to allow integration of SEPA analysis with GMA planning processes and documents. As it takes any final action, the County will need to carefully consider compliance with SEPA. See, e.g., Spokane County v. E. Wash. Growth Mgmt. Hearings Bd., 179 Wn. 2d 1015, 318 P.3d 279 (2014). This could involve either the adoption of a Declaration of Nonsignificance or the preparation of an Environmental Impact Statement. Following the proper procedures under SEPA and filing a timely "Notice of Action Taken" can limit County exposure to a SEPA challenge,. 2.3.4 GMA & Shoreline Consistency Requirements Washington case law and statutes require consistency of comprehensive plans, development regulations, and shoreline regulations with the enabling statutes and regulations. See, e.g., Olympic Stewardship Foundation v. Environmental and Land Use Hearings Office, 199 Wn. App. 668, 399 P.3d 562 (2017) (interpreting the provisions of the Growth Management Act, RCW 36.70A). The County will have to make a careful effort to ensure there are adequate findings to establish that a new development regulation is consistent with the goals of the Growth Management Act, the county's adopted comprehensive plan, and the Shoreline Management Act and guidelines. 2.3.5 Protection of Fish Habitat Under State Law Extending beyond treaty rights, the County could certainly identify protection of fisheries and habitat as a legitimate state and local interest. Policies of both the Shoreline Management Act and the Growth Management Act identify protection of valuable shoreline and aquatic resources and habitat as legitimate state and local Reducing Impacts from Fossil Fuel Projects February 23, 2018 Page 16 of 293 Commented [A6]: The County must initiate a proper SEPA review of any land use changes. Commented [A7]: The County will need to review consistency of any zoning code or shoreline ordinance amendments with the Comprehensive Plan and the County's Shoreline Master Program as well as the Growth Management Act and the Shoreline Management Act. If amendments are required these must occur prior to any new regulations being finalized. A moratorium may be extended as long as the County is making reasonable progress in adopting final code provisions. W interests See, e.g., RCW 90.58.020, Legislative findings —State policy enunciated — Use preference; RCW 36.70A.172(1): In designating and protecting critical areas under this chapter, counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries. 3 Lessons From Review of Activity and Litigation in Other Jurisdictions In recent years many local governments have attempted to impose some type of limitation on facilities relating to fossil fuels. Here, we discuss how actions in two jurisdictions highlight the most important legal principles: in the City of Portland, Oregon, and in the City of Benicia, California. (In Appendix 1 we also discuss actions in a number of other communities.) Finally, we offer some "lessons learned" from these experiences in other jurisdictions. 3.1 Portland, Oregon In December 2016, the Portland City Council adopted an ordinance that identified "Bulk Fossil Fuel Terminals" as a regulated land use, characterized (1) by marine, railroad, or pipeline access and (2) either (a) storage capacity in excess of 2 million gallons or (b) trans -load facilities. It prohibited new Bulk Fossil Fuel Terminals in base zones and the expansion of existing terminals. The record before the Council contains substantial articulations of local environmental and safety concerns, particularly regarding seismic risks. The Columbia Pacific Building Trades Council, the Portland Business Alliance, and other business groups challenged the ordinance before the Oregon Land Use Board of Appeals (LUBA) on a number of constitutional and statutory grounds. As part of a Commerce Clause argument, the challengers cited oral statements made by council members as evidence that the ordinance was intended to discriminate against interstate commerce. The LUBA invalidated the ordinance on Commerce Clause grounds and for inconsistency with Oregon's Growth Management Act. Note that only Reducing Impacts from Fossil Fuel Projects Page 17 of 293 February 23, 2018 Commented [Aft As stated in an earlier comment, findings related to protection of fisheries could bolster a land use decision. Placing appropriate reports and studies in the record would bolster the defense of any new regulations intended to avoid impacts on important fisheries. one member of the LUBA decided the case; the other two members recused themselves. See LUBA Decision 2017-001, Columbia Pacific Building Trades Council v. City of Portland, attached as Appendix 5. Regarding the Commerce Clause claim, the LUBA held that the ordinance was not discriminatory on its face. However, because the LUBA determined that the fossil fuel terminals also served as a regional hub for such fuels, it stated: "Under these circumstances, we do not believe the city can adopt zoning amendments that restrict FFTs to their existing number and capacity, without at least considering the impact of the amendments on the flow of fossil fuel to the region and the state." The LUBA also held that the ordinance did not satisfy the Pike balancing test, stating "[r]educed to essentials, the FFT amendments represent the city's attempt to isolate itself to some extent from the national and international economy in fossil fuels." The LUBA also addressed issues regarding consistency with the Oregon Growth Management Act. Normally, the LUBA would decide state law issues first, and if there were violations, remand the matter without reaching constitutional issues. However, here, the LUBA decided it was more efficient to reach the Commerce Clause issue. However, it also gave what it termed "somewhat advisory" decisions on the state land use issues. Accordingly, it held that the City did not demonstrate, through appropriate findings, that the Ordinance was consistent with the Portland Comprehensive Plan and various state planning requirements and goals, and was not "coordinated with the plans of affected governmental units" as required by a statewide planning goal. The City appealed the LUBA decision to the Oregon Court of Appeals, which recently reversed the LUBA rulings on dormant Commerce Clause grounds and consistency with the transportation goals of the Oregon Growth Management Act. However, the Court upheld the LUBA finding that the City of Portland had not presented substantial evidence to support a finding that fossil fuel use is likely to plateau and decline in future years. See Columbia Pacific Building Trades Council v. City of Portland, 289 Or. App.739 (2018), included in Appendix 6. The dormant Commerce Reducing Impacts from Fossil Fuel Projects Page 18 of 293 February 23, 2018 45 Clause analysis in this case is helpful to understand how a similar challenge can be anticipated if Whatcom County adopts limits on fossil fuel terminals. The Oregon Court indicated that the first step in the analysis is to determine whether the law regulates evenhandedly with only incidental effects on interstate commerce, or instead discriminates against interstate commerce. The Court states that discrimination simply means differential treatment of in -state and out-of-state economic interests that benefits the former and burdens the latter. The Building Trades Council and the Western States Petroleum Association (WSPA) contended that the zoning amendments disfavored out-of-state sellers and advantaged in -state interests by creating exceptions for local terminal operators. However, the Court held that the in- state and out-of-state entities here were not similar entities, and that in the absence of actual or prospective competition between them there could be no local preference. The local entities were providers of petroleum products to in -state end users, but the possible newly prohibited facilities would cater to export and out-of-state markets. The Court further found that there could not be discrimination against large out-of-state refiners and exporters because Oregon has none of those in the state to favor. The Court also rejected the argument that the zoning amendments illegally sought to prevent "unwanted commerce." The Building Trades Council and WSPA contended the Portland zoning regulations were similar to what had been found unlawful by the U.S. Supreme Court in a New Jersey landfill case where the state had excluded importation of out-of-state waste. See Philadelphia v. New Jersey, 437 US 617, 98 S. Ct.2531 (1978). The Court distinguished the New Jersey case by holding that the Portland zoning amendments do not bar importation of fossil fuels into the state but merely place restrictions on the size of terminals that may be used for exports. The Court further held that the burden was on the challengers to demonstrate that any burden on interstate commerce is clearly excessive in relation to the putative local benefits. The City of Portland had made numerous findings regarding the local benefits of the restrictions, and the Court held that local zoning ordinances have a presumption of validity. Reducing Impacts from Fossil Fuel Projects Page 19 of 293 February 23, 2018 The challengers to the Portland ordinance have filed a motion with the Oregon Court of Appeals asking it to reconsider its decision. Assuming that motion will be denied, an appeal to the Oregon Supreme Court is possible. However, even while that case continues, its rulings to date demonstrate several important legal principles. One is that setting forth the context for local regulations and making clear findings regarding the local police power rationale behind an ordinance can be important in overcoming a Commerce Clause challenge. Second, while it is crucial that local zoning regulations not be designed to protect substantially similar local interests over out-of-state competitors, courts will likely consider carefully whether entities that claim discriminatory effect actually are in fact competitors. And, finally, a presumption of validity is given to local zoning regulations, so it is the challenger to the regulations who bears the burden of proving discriminatory effect. 3.2 Benicia, California The Benicia Planning Commission denied a conditional use permit for a crude oil off-loading facility proposed to serve an existing Valero refinery that historically received crude oil from Alaska and foreign sources. The environmental study found that the transport of crude oil by train on the 70 miles of track leading to the refinery was hazardous, although an accident was predicted only once every 110 years. The study also found that the crude intended to be shipped from North Dakota and the Canadian tar sands area was more flammable than most other crude oils. Valero challenged the local land use decision before the federal Surface Transportation Board (STB) arguing that the local action was preempted by the Interstate Commerce Termination Act. The STB upheld the Planning Commission's land use decision. Though the STB recognized the broad preemptive effect of 49 U.S.C. §10501, it held that the local decision did not attempt to regulate transportation by a rail carrier. The STB noted that federal preemption could extend to off-loading facilities if the activities are performed or controlled by the rail carrier, but Valero "made no allegation that it is a rail carrier or that it would be performing off-loading under the auspices of a rail carrier." Reducing Impacts from Fossil Fuel Projects Page 20 of 293 February 23, 2018 47 The STB also provided guidance for future cases, finding that state and local regulation is permissible where it does not unreasonably interfere with rail transportation (such as generally applicable electrical or fire codes), and that if the off-loading facility were to be built, any mitigation conditions unreasonably interfering with the railroad's operations would be preempted. After the STB ruled, the City Council adopted the decision of the Planning Commission. Valero informed the City that it would not be taking further action to challenge the City's decision. 3.3 Some Preliminary Lessons Learned After reviewing these actions and ensuing litigation, those described in Appendix 1, and our earlier analysis of legal issues here, the following lessons emerge: ➢ Where there is a project opponent to a given ordinance, litigation challenging it is likely. ➢ Whatcom County would need to build a strong factual record to support any ordinance. It should focus on local environmental and health impacts. Such findings are important in defenses against Commerce Clause challenges and to support compliance with state land use laws. ➢ The County should emphasize truly unique impacts. Portland tried this by focusing on the seismic sensitivity of its industrial area where the fuel terminals would be located. (Though this apparently was not enough for the LUBA decision, Portland officials believe that this was important to justify its ordinance.) Here, the County could consider fisheries and other unique characteristics that the County is trying to protect. (And under Ninth Circuit treaty rights cases, it is possible that the County may have an affirmative obligation to protect fish habitat.) ➢ The County should consider making a "fair share" argument in order to justify restrictions on future projects without imperiling existing operations in the County. In other words, the County is happy to accept its fair share of impacts from fossil fuel facilities, but the new projects create impacts that are more than what is fair. ➢ The County may not "intend" to discriminate or otherwise regulate interstate commerce. Accordingly, county officials should avoid making public comments on any "purpose" that goes beyond protection of local impacts, Reducing Impacts from Fossil Fuel Projects Page 21 of 293 February 23, 2018 such as need to limit use of fossil fuels in other countries. Those comments can find their way into a court record and could support a Commerce Clause claim. An example is the City of South Portland, Maine litigation (described in Appendix 1) where the trial court was unable to grant a summary judgment in favor of the City on dormant Commerce Clause grounds because there were statements on the record that made it unclear whether the purpose of local zoning regulations was based on a police power rationale or another impermissible purpose. ➢ The County should avoid any regulation of rail traffic, or at least should evaluate rail regulations very carefully. So many federal statutes govern rail that a limited legal area is left in which states and localities can properly regulate. ➢ Because the State has powers that are not preempted by federal law, the County should work with the Governors Office and the Department of Ecology to reach agreement on the applicability of the State's authority under the Clean Water Act Section 401 and Coastal Zone Management Act. Note that these State powers have led to the recent denials of major coal and oil projects. ➢ Future decisions in pending litigation, such as decisions in any further appeal regarding the City of Portland's ordinance and the South Portland, Maine zoning provisions (outlined in Appendix 1), will likely give more guidance to Whatcom County. 4 Recommendations In the paragraphs below, we outline the key options we recommend the County Council take under consideration. Each has differing policy implications, and the County must decide which best meet its overall objectives. The options range from bolstering the discretionary authority of the County Council with respect to approving and mitigating the impacts of proposed uses, to possibly prohibiting certain uses. 4.1 Bolster County Authorities Under the Major Projects Permit Review Process The current Cherry Point Heavy Industrial District requires new projects to undergo a County Council review under the provisions of Chapter 20.88 for Major Project Permits. We suggest that the current code provisions be substantially bolstered by making it clearer that this is a discretionary review that must meet key decision - Reducing Impacts from Fossil Fuel Projects Page 22 of 293 February 23, 2018 We making criteria. We also recommend providing clearer authority in the process for requiring mitigation of project impacts on the community and the environment. One new element would be adding a requirement that a "Development Agreement" be negotiated with project proponents to agree on the required mitigation. The code could also provide authority for bonding and insurance to ensure that any agreed -upon community improvements are installed on a timely basis, and that a liability insurance requirement for potentially hazardous activities guards against risks to the',community. While there would still be a legal requirement that a rational nexus exist between any project impacts and required mitigation, establishing clearer authorizing language in the Major Project Permit process would create clearer expectations from the County for project applicants. Codes of other jurisdictions offer many examples for the kinds of discretionary decision -making criteria that could be added to the Major Project Permit process. The list below is provided as a generic set of example discretionary provisions for consideration, paraphrased from other Western Washington local zoning codes: ➢ Any use established shall be consistent with the Comprehensive Plan, the Shoreline Master Program, and all standards established under zoning and shoreline regulations. ➢ Any use shall be located, planned and designed in such a manner that it is consistent with the health, safety, convenience, and general welfare of citizens residing or working in the community. ➢ A use shall not be approved if it would generate excess noise, noxious or offensive emissions or other nuisances that may be injurious or to the detriment of a significant portion of the community. ➢ A use shall only be approved after a clear demonstration that public services necessary or desirable for support of the use are available or will be provided by the project developer. These may include, but shall not be limited to, the availability of utilities to serve the site, transportation systems including vehicular, pedestrian and public transportation systems, educational, police and fire facilities and necessary social and health services. ➢ There shall be a demonstrated need for the use within the community at large which shall not be contrary to the public interest. Reducing Impacts from Fossil Fuel Projects Page 23 of 293 February 23, 2018 Commented [A9]: The Major Projects Review process should be revised to make it clear that it is a discretionary review. The County should develop decision making criteria that provide the ability to deny a permit if it does not meet land use compatibility criteria. For projects that are approvable, the Major Projects provisions should establish clear requirements that a "Development Agreement" be negotiated that provides for a bond or other appropriate financial assurance from project sponsors to ensure required community improvements are provided on a timely basis. A liability insurance requirement should also be required to provide appropriate coverage for local emergency response or damages that might result from hazardous activities. Clear guidance should be given to Executive Staff regarding what uses will be required to have discretionary reviews and what thresholds for expansion of existing uses should be established. The Council could decide that no additional limits are necessary for expansion of existing uses or that a threshold be set for requiring discretionary review. 50 ➢ Any use will be designed, constructed, operated, and maintained to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity. ➢ Any use must demonstrate that it will not be hazardous or disturbing to existing or future uses of the neighborhood. ➢ Any use must demonstrate that it will be serviced adequately by essential public facilities such as highways, streets, police and fire protection, drainage facilities, refuse disposal, water and sewers, and schools or that the persons or agencies responsible for the establishment of the proposed use shall be able to adequately provide for any such services. ➢ Any use must demonstrate that it will not create excessive additional requirements at public cost for public facilities and services and will not be detrimental to the economic welfare of the community; alternately, the applicant must provide mitigation for such added public costs. ➢ Any use must demonstrate that it will not result in the destruction, loss, or damage of any natural, scenic, or historic feature of major importance. The list above provides only generic examples of what some other local codes have included. The Major Project Permits criteria here could also include provisions tailored to Whatcom County and to the issues the Cherry Point Heavy Industrial District presents. A decision -making criterion could be added that requires any necessary state leases to have been already acquired for any piers or aquatic lands improvements, and to have already met any federal permitting needs, including properly addressing tribal treaty rights or the provisions of the Magnuson Amendment. This would not have the County enforcing the provisions of state or federal law; it would merely have the County requiring a demonstration in advance of County approvals that all federal and state approvals have been ;I ompleted. Alternatively, the County could make acquisition of such state orfederal approvals a condition of perfecting any local approval. The County could add other specific decision -making criteria too, for such issues as requiring it to be established that a new use would create no adverse effects on the endangered Cherry Point herring stocks or salmon fisheries, or other such specific concerns the County may wish a discretionary review to address. Reducing Impacts from Fossil Fuel Projects February 23, 2018 Page 24 of 293 Commented IAl01: Similar to the comments above regarding federal permitting, we would recommend one of the County's decision -making criterion for piers or uses that impact aquatic lands adjacent to Cherry Point be that State approvals for tideland leases by the Department of Natural Resources and by the Department of Ecology for Coastal Zone Management and 401 water quality certifications be completed in advance of permit applications to the County. While there is an option to allow state permits and approvals to be acquired in parallel with county permitting processes, because ofthe strict State leasing provisions for additional piers the County could expend very substantial time and resources without any assurance a project will meet federal and state standards. If the County Council wishes to allow parallel permit processing, a discretionary criterion could still be added to County codes requiring acquisition of State and Federal permits and certifications before any local permits become effective. 51 4.2 Require a Conditional Use Permit for Certain Identified Uses This option would require amending the County's Cherry Point Heavy Industrial District and the Shoreline Master Program regulations to require that a conditional use permit be acquired for uses such as new petroleum tank farms, fossil fuel distribution facilities, additional piers, and other uses that can be further defined. As set forth previously, the Council will need to consult with the County Prosecutor's Office regarding the potential effect of prior settlement agreements on further regulation of additional piers. For the land use code amendments, the decision -making criteria for a conditional use discretionary process could be the same, or nearly the same, as the type identified above for a discretionary Major Project Permit'process. The conditional use criteria would need to focus on traditional police power concerns such as public health and safety, environmental impacts, and compatibility of the proposed use with the community. However, under the Shoreline Management Act requiring a conditional use permit for shoreline uses has special status. Shoreline Conditional Use Permits must be reviewed and approved by the Department of Ecology's shoreline permit review staff, and must meet the state rule criteria found at WAC 173-27-160: Review criteria for conditional use permits. The purpose of a conditional use permit is to provide a system within the master program which allows flexibility in the application of use regulations in a manner consistent with the policies of RCW 90.58.020. In authorizing a conditional use, special conditions may be attached to the permit by local government or the department to prevent undesirable effects of the proposed use and/or to assure consistency of the project with the act and the local master program. (1) Uses which are classified or set forth in the applicable master program as conditional uses may be authorized provided the applicant demonstrates all of the following: (a) That the proposed use is consistent with the policies of RCW 90.58.020 and the master program; (b) That the proposed use will not interfere with the normal public use of public shorelines; (c) That the proposed use of the site and design of the project is compatible with other authorized uses within the area and with uses planned for the area under the comprehensive plan and shoreline master program; (d) That the proposed use will cause no significant adverse effects to the shoreline environment in which it is to be located; and Reducing Impacts from Fossil Fuel Projects Page 25 of 293 February 23, 2018 Commented [All]: We recommend the County put discretionary criteria into the Major Projects review process rather than create a new land use code conditional use permit process. The effect would ultimately be the same, which is providing a discretionary review for land use compatibility before a permit is issued. The discretionary criteria for a Major Projects permit could be the same as those normally required for a conditional use permit. Because the land use code already has a Major Projects review process the code can be amended to add new discretionary review criteria and clear process structure. However, as noted below, we recommend that new facilities within the jurisdiction of the Shoreline Management Act be required to obtain a shoreline conditional use permit as that is typically the device used under the Shoreline Management Act for review of sensitive aquatic uses. 52 (e) That the public interest suffers no substantial detrimental effect. (2) In the granting of all conditional use permits, consideration shall be given to the cumulative impact of additional requests for like actions in the area. For example, if conditional use permits were granted for other developments in the area where similar circumstances exist, the total of the conditional uses shall also remain consistent with the policies of RCW 90.58.020 and shall not produce substantial adverse effects to the shoreline environment. (3) Other uses which are not classified or set forth in the applicable master program may be authorized as conditional uses provided the applicant can demonstrate consistency with the requirements of this section and the requirements for conditional uses contained in the master program. (4) Uses which are specifically prohibited by the master program may not be authorized pursuant to either subsection (1) or (2) of this section. Requiring certain defined uses to obtain a land use code conditional use permit and a shoreline conditional use permit can be an effective means for the County to exercise its discretion when hard and fast "one size fits all" criteria may be difficult to apply. Affirmative findings of consistency with the decision -making criteria must be made, and the potential for denial of a use inconsistent with the criteria is implicit. Of course, the record must demonstrate a rational basis for such a decision. This would also create solid arguments that a legal challenge to the provisions would be premature prior to a specific application of the regulations to a specific project. Requiring a shoreline conditional use creates the opportunity to make a decision on the basis of impacts to the important aquatic uses of the shoreline areas adjacent to Cherry Point. These include the herring fishery and other treaty fisheries that have been the subject of recent Corps of Engineers decision making. (The 2016 Corps denial of the Gateway Pacific permit in favor of Lummi Nation treaty fishing rights is attached at Appendix 7; at Appendix 8 is the seminal court decision underlying the Corps' de minimis analysis, NW). This also would allow consideration of the analysis contained in documents completed by the State Department of Natural Resources for the Cherry Point Aquatic Reserve, which has been extensive. (The 2017 Commissioner's order enlarging the Reserve is attached at Appendix 9, and a PDF of the Reserve's amended 190-page Management Plan for the Reserve may be downloaded from DNR at Reducing Impacts from Fossil Fuel Projects Page 26 of 293 February 23, 2018 53 httos:llwww.dnr.wa.govloublicationslacir resv co mgmtplan amend 201702.pdf7id7o ms.) And finally, since the Department of Ecology must review shoreline conditional use permits, this would allow another state agency to consider the impact of the leasing restrictions DNR recently adopted for the ;Reserve',. This option will require amendments to the land use code and to the shoreline master program. Amendments to the shoreline master program are needed in any event, as it currently establishes a priority for marine terminals with oil and gas transfer within the Cherry Point shoreline area. 4.3 Prohibit Certain Uses Another powerful option that would create immediate certainty would be to prohibit a defined set of uses in the zoning code and the shoreline regulations for the Cherry Point Heavy Industrial Zone and the adjoining shoreline areas. Such an option is similar to what has been done in Portland, Oregon, and in South Portland, Maine. This option would require a thoughtful discussion of the specific uses that could be prohibited. A clear record about why any uses are prohibited would be necessary to demonstrate that the regulations do not burden interstate commerce, and are consistent with substantive due process and other grounds such as consistency with Growth Management Act policies and the comprehensive plan, the State Shoreline Management Act, and the local Shoreline Master Program. The basis for such provisions should rely on concerns about local health and safety, land use compatibility, and environmental impacts of the prohibited uses, including considerations under the Growth Management Act and the Shoreline Management Act. Should the County decide to pursue this option, it should bolster the record by citing the desire for consistency with the DNR's adjoining Cherry Point Aquatic Reserve, recent decisions by the Corps of Engineers regarding treaty fishing rights, and the provisions of the Magnuson Amendment. See Appendices 7 through 10. The record could also make clear that the County wishes to allow the continued use of the Cherry Point area by the existing two refineries and the aluminum smelter and could even make clear that expansions of the existing facilities is viewed positively. There could even be findings made that the County has accepted its fair share of such facilities in the state and Reducing Impacts from Fossil Fuel Projects Page 27 of 293 February 23, 2018 Commented [Al2]: Requiring a Shoreline Conditional Use permit recognizes the sensitive nature of adding uses that impact the endangered herring and tribal fisheries adjacent to Cherry Point. The state -specified shoreline conditional use criteria require consideration of cumulative impacts of past uses in the vicinity and also allow conditions to be attached to a shoreline conditional use permit should approval be appropriate. The additional layer of State Department of Ecology approval means the State agency would also be required to review consistency with the policies of the State Shoreline Management Act and the local Master Program. As noted in the text, this will require amendment of the County's Shoreline Master Program as it currently has use preferences for marine terminals with oil and gas transfer within the Cherry Point shoreline area. 54 region and wishes to limit the impacts on the community of a further concentration of such facilities. While prohibiting a defined set of uses would create certainty, it might also provide an opportunity for an immediate facial challenge to the validity of the regulation from a property owner or litigant who could meet standing requirements. This is why it would be important to have a strong record showing why zoning certain uses out is rational and is based on legitimate land use and environmental considerations. Because the state and federal governments have made past decisions that limit the uses that they will allow, a good argument can be made about the need or desirability for consistency between County regulations and those past land use decisions at the state and federal level. It might also be possible to prohibit uses beyond those denied by the State and Federal governments, though this should be evaluated very carefully before proceeding. 4.4 A Hybrid Approach The County could also choose to combine elements from each of the above options into a new ordinance. The paragraphs above create a menu of options that can be mixed and matched. For instance, the Major Project Permit provisions could be modified to provide additional discretionary criteria and the Shoreline regulations could be amended to require a shoreline conditional use for certain types of facilities. Either of these could be combined with making some uses prohibited as well. The County could also be explicit about how its policies protect existing uses and limit (or not) the expansion of existing uses under any of these options as Oell Any final option will require findings that are clear about the basis for the County's actions and must take into account the legal tests for consistency with the Commerce Clause and adoption of land use regulations as set forth more completely in the Legal Issues section of this report. 4.5 Adopt Franchise Ordinances Finally, the County Council could also adopt a franchise ordinance relating to interstate pipelines. Other jurisdictions have adopted franchise ordinances aimed at interstate pipelines, but the courts have usually limited the local government's ability to Reducing Impacts from Fossil Fuel Projects February 23, 2018 Page 28 of 293 Commented ]A13]: The County Council should give the Executive and staff clear direction regarding what types of expansions of existing uses would be permitted. A distinction can be made regarding additions to the existing refineries and other existing Cherry Point uses that are consistent with existing Federal and State restrictions. The County Council should give direction regarding which uses would require new discretionary approvals under a revised Major Projects review process. For instance, those could include new pipelines, or new pipelines that do not serve local uses, fossil fuel terminals or other uses the Council believes should require additional discretionary review for land use and shoreline compatibility before being allowed. Of course, an alternative is providing direction that some uses should be completely prohibited rather than only requiring a discretionary review. Appropriate reports, studies and findings would bolster a decision to require the code revisions. 55 impose conditions beyond those relating to construction and maintenance. In other words, any attempt to impose safety conditions beyond those required by the federal government for interstate pipelines likely would be preempted. We have included further discussion of franchise authority in Appendix 11. 5 Overarching Recommendations In this section, we make several overarching recommendations to the County regardless of which zoning and shoreline code amendments are selected. 5.1 Conformity and Internal Consistency The Washington State Growth Management Act (GMA) requires consistency with the policies of the GMA and local comprehensive plans and land use regulations. An effort needs to be made to ensure that whatever option is chosen is consistent with GMA policies and that the various provisions are internally consistent. That is, the Shoreline Master Program, the zoning ordinance provisions, and any procedural requirements must be consistent with each other and with the applicable provisions of Whatcom County's land use ordinances. An amendment process must ensure that the final option chosen is consistent throughout Whatcom County's various Comprehensive Plan, Shoreline Master Program policies, and shoreline regulations and zoning Fegulations. 5.2 Major Project Permit Review Provisions We recommend that the County develop new Master Site Planning provisions that would be applicable to the Cherry Point Heavy Industrial District. These would include a number of elements that would be applicable under several of the options discussed above. These include: ➢ Require an application fee covering the County's review costs including costs for EIS preparation be paid up front or in increments as the process' proceeds. ➢ Provide for a Development Agreement that obligates the developer to pay costs of all traffic and other environmental impact mitigation identified in the SEPA review and discretionary project review by the Planning Department, Hearing Examiner, or County Council, should a Master Site Plan or Reducing Impacts from Fossil Fuel Projects Page 29 of 293 February 23, 2018 Commented [A14]: Clear direction should be given to the County Prosecutor's Office and to Executive staff that the total package must be reviewed for internal consistency and consistency with the existing Comprehensive Plan, the Shoreline Master Program and other local and State land use and shoreline regulations. Necessary amendments to other code and plan provisions will likely be necessary to create that consistency. I Commented [Al5]: Clear direction should be given that ecovering County review costs be part of the code Commented package. 56 conditional use be approved. When such decisions are made, however, any mitigating conditions would need to be proportional with the impacts identified for the development in an Environmental Impact Statement or discretionary decision documents prepared by the County as the record would need to show appropriate justification for such mitigation!. ➢ Amend the Code to give the Planning Department, the County's Hearing Examiner, or the County Council the discretion to require a bond or insurance policy (or combination of these) to ensure that all development commitments for transportation or other improvements and mitigation are followed through to completion and that any special safety hazards to the community are insured @gainst. 5.3 SEPA Policy Revisions We recommend the County review its current SEPA policies to be sure they provide a clear basis for mitigating environmental impacts of a major facility the County may approve, and just as importantly a clear basis for denial if the County determines key environmental impacts cannot be mitigated. The State Environmental Policy Act does provide that a project may be denied after an EIS is completed where it is decided that unacceptable adverse impacts cannot be mitigated. However, clear SEPA policies must be adopted by local ordinance to provide a basis for such a denial or even appropriate conditioning of a project. See WAC 197-11-660, attached to this report as Appendix 112� 5.4 Provisions for Change of Use or Change of Occupancy Many jurisdictions' ordinances provide a process so that any proposed change of use or occupancy at existing facilities is reviewed for consistency with current codes and ordinances, for flagging needed discretionary land use permits, and for ensuring SEPA review where needed to address adverse environmental impacts. We recommend the County consider adopting a provision to allow a simple, ministerial planning staff approval of a change of occupancy or use where such new use remains consistent with current code provisions and is below SEPA review thresholds. This same provision should also create a clear obligation to review and properly address or mitigate impacts of change of occupancy or use that are above SEPA thresholds or otherwise require a discretionary keview. Reducing Impacts from Fossil Fuel Projects Page 30 of 293 February 23, 2018 Commented [Al 6]: As discussed in the comments above, a Development Agreement provision creates a vehicle for ensuring conditions and requirements of any permit are in the form of an enforceable document. Commented [Al 7]: As noted in earlier comments, these provisions would create financial assurance that public improvements and public safety are adequately provided for. Commented [Al 8]: We recommend the County Council direct the County Prosecutor and Executive staff review existing SEPA policies and determine if they are adequate for providing SEPA conditioning and denial authority to the County. Commented [Al9]: Direction to add code provisions that require a review of changes of use and occupancy is also something we recommend. This is a common code provision in other jurisdictions but we did not find it in current County land use codes. This will ensure appropriate land use and environmental reviews occur when an existing use is significantly modified. 57 5.5 Consistency Provisions Regarding DNR Aquatic Reserve, the Magnuson Amendment and Tribal Treaty Rights While the County is not charged directly with enforcing state or federal laws and treaty obligations, the County can provide in its reviews that there be evidence showing that project applicants have taken appropriate steps to address state and federal requirements. For instance, as part of a discretionary review, one element that could be required is that state leases must have been acquired and federal permitting requirements must have been met, including those that require properly addressing tribal treaty rights. For example, the Corps of Engineers recently denied an additional pier for the Gateway Pacific project because the Corps concluded that the project would violate treaty fishing rights. See Appendix 7. The County could expend substantial time and resources to go through a complete project review and approval process only to find out later that a state tideland lease or Corps permit could not be obtained. In addition, the County could make clear that a State Section 401 Water Quality Certification and a Coastal Zone Management Federal Consistency Determination must be issued by the state prior to any County action. See: https:llapps.aria.wa.gov/perm ithardbookIyermitdeta iIJ43 and htts:lla s.oria.wa. ovl ermithandbookl ermitdetai1146. Accordingly, while the County would not be directly enforcing a federal or state law or obligation, the codes can be written to require a showing that necessary state and federal permits and certifications have been acquired and that there would be no adverse impact on treaty fishing ,'rights An alternative would be a clear provision that any County permits are issued conditionally upon acquiring all necessary state and federal permits. In addition, the County's SEPA policies should make more clear that SEPA documents are required to contain analysis of and demonstrate consistency with state and federal laws and obligations, such as consistency with tribal treaty rights. Reducing Impacts from Fossil Fuel Projects February 23, 2018 Page 31 of 293 Commented [A20]: As discussed in an earlier comment, direction to add this as part of the decision -making criteria would avoid the expenditure of County resources on projects that cannot obtain necessary federal and state approvals. 6 Appendices Appendix 1: Additional issues in other jurisdictions Appendix 2: Additional media reports regarding current status of fossil fuel actions in other jurisdictions Appendix 3: Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d 1023, (E. D. Cal. 2007) Appendix 4: Lighthouse v. Inslee complaint, No. 3:18-cv-05005-RJB (W.D. Wash.) Appendix 5: LUBA Decision 2017-001, Columbia Pacific Building Trades Council v. City of Portland Appendix 6: Oregon Court of Appeals Decision, 289 Ore. App. 729 Appendix 7: U.S. Corps of Engineers 2016 Memorandum for Record: Gateway Pacific Terminal Project and Lummi Nation's Usual and Accustomed Treaty Fishing Rights at Cherry Point, Whatcom County Appendix 8: DNR Commissioner's January 2017 Order Expanding Cherry Point Aquatic Reserve Appendix 9: Magnuson Amendment, 33 USC 476 Appendix 10: Franchise Authority Appendix 11: WAC 197-11-660, Substantive authority and mitigation Appendix 12: Cascadia Law Group and the attorneys responsible for this report Reducing Impacts from Fossil Fuel Projects Page 32 of 293 February 23, 2018 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. WHATCOM COUNTY COUNCIL Special Committee of the Whole January 30, 2018 CALL TO ORDER Council Chair Rud Browne called the meeting to order at 10:45 a.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. ROLL CALL Present: Tim Ballew, Barbara Brenner, Rud Browne, Barry Buchanan, Tyler Byrd, Todd Donovan, and Satpal Sidhu. Absent: None. SPECIAL ORDER OF BUSINESS 1. ANNUAL REORGANIZATION OF THE WHATCOM COUNTY COUNCIL (FINALIZATION OF COUNCIL ASSIGNMENTS) (AB2018-021) Councilmembers discussed who could potentially fill the five Chair positions of the Council committees. Traditionally, neither the Council Chair nor newly -elected councilmembers chair a committee. Dana Brown -Davis, Clerk of the Council, answered questions on committee quorum rules and appointing councilmembers as alternates to the Lummi Island Ferry Advisory Committee. Donovan moved to remove himself as representative to the Portage Bay Shellfish Protection District and to nominate and appoint Councilmember Ballew to the position. Board. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Ballew moved to nominate and appoint himself to the Developmental Disabilities The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Special Committee of the Whole (AM), 1/30/2018, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Brenner moved to nominate and appoint Ballew to the Public Works and Health Committee. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Donovan moved to nominate and appoint Ballew to the Natural Resources Committee. Group. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Donovan moved to nominate and appoint Ballew to the Lake Whatcom Policy The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Donovan moved to remove himself as representative to the Council of Governments (COG) and appoint Ballew to the position. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Brenner moved to table the Lummi Island Ferry Advisory Committee alternate appointments. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) OTHER BUSINESS There was no other business. Special Committee of the Whole (AM), 1/30/2018, Page 2 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. ADJOURN The meeting adjourned at 10:56 a.m. The Council approved these minutes on , 2018. ATTEST: Dana Brown -Davis, Council Clerk Jill Nixon, Minutes Transcription WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Rud Browne, Council Chair 62 Special Committee of the Whole (AM), 1/30/2018, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. WHATCOM COUNTY COUNCIL Special Committee of the Whole January 30, 2018 CALL TO ORDER Council Chair Rud Browne called the meeting to order at 1:32 p.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. ROLL CALL Present: Tim Ballew, Barbara Brenner, Rud Browne, Barry Buchanan, Tyler Byrd, Todd Donovan, and Satpal Sidhu. Absent: None. COMMITTEE DISCUSSION 1. DISCUSSION OF AN APPEAL OF THE HEARING EXAMINER'S DECISION ON FILE NO. CUP2015-0003, FILED BY JERRY PATE, REGARDING A PROPOSED NEW WIRELESS COMMUNICATIONS FACILITY WHICH INCLUDES A 150 FOOT TALL STEEL MONOPOLE, WITH AN INITIAL ANTENNA ARRAY CONSISTING OF TWELVE PANEL ANTENNAS AND ONE SIX FOOT WIDE MICROWAVE DISH ANTENNA (AB2017-355) Browne stated that discussion of agenda item one may take place in executive session pursuant to RCW42.30.110 (1)(i). Executive session will conclude no later than 2:00 p.m. If the executive session ends beyond the stated conclusion time, he will step out of the meeting to make a public announcement. Buchanan moved to go into executive session until no later than 2:00 p.m. to discuss the agenda items pursuant to RCW citations as announced by the Council Chair. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None (0) (Clerk's Note: The committee came out of executive session at 1:50 p.m.) COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL Special Committee of the Whole (PM), 1/30/2018, Page 1 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. 1. DISCUSSION OF ESSB 6091 (HIRST AGREEMENT) AND A PROPOSED EMERGENCY INTERIM ORDINANCE RELATING TO THE USE OF PERMIT EXEMPT WATER WITHDRAWALS FOR DEVELOPMENT PURPOSES (ORDINANCE SCHEDULED FOR COUNCIL ACTION THIS EVENING) (AB2018- 057) Karen Frakes, Prosecutor's Office, gave a staff report and answered questions on the emergency interim ordinance process. Mark Personius, Planning and Development Services Department, gave a staff report on the differences between the effect of the emergency interim ordinance scheduled for adoption at the evening meeting and the interim ordinance scheduled for introduction at the evening meeting. He answered questions on the definition of "legal availability," the requirements from Engrossed Substitute Senate Bill (ESSB) 6091, whether applicants will continue to be required to hire hydrogeologists to prove legal availability, whether anyone on the County Council was involved in writing the ordinance, and the process for updating the watershed management plan by February 2019. The following staff answered questions: • Gary Stoyka, Public Works Department • Jack Louws, County Executive • Amy Keenan, Planning and Development Services Department Councilmembers and staff discussed how they have to come up with a watershed management plan update by February 2019, permit applicants versus the State paying for mitigation, input from State legislators, deadlines, State law's precedence, whether the Whereas statements are legally binding and how they serve as findings of fact to support the ordinance for coming forward as an emergency interim ordinance, State Environmental Policy Act (SEPA) requirements and determination of non -significance (DNS), and cluster language in the code. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 3:13 p.m. The Council approved these minutes on , 2018. ATTEST: WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dana Brown -Davis, Council Clerk Rud Browne, Council Chair M Special Committee of the Whole (PM), 1/30/2018, Page 2 1 2 3 4 5 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Jill Nixon, Minutes Transcription Special Committee of the Whole (PM), 1/30/2018, Page 3 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. WHATCOM COUNTY COUNCIL Regular County Council Meeting January 30, 2018 CALL TO ORDER Council Chair Rud Browne called the meeting to order at 7:00 p.m. in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. ROLL CALL Present: Tim Ballew, Barbara Brenner, Rud Browne, Barry Buchanan, Tyler Byrd, Todd Donovan, and Satpal Sidhu. Absent: None. FLAG SALUTE ANNOUNCEMENTS 1. CONSIDERATION OF AN APPEAL OF THE HEARING EXAMINER'S DECISION ON FILE NO. CUP2015-0003, FILED BY JERRY PATE, REGARDING A PROPOSED NEW WIRELESS COMMUNICATIONS FACILITY WHICH INCLUDES A 150 FOOT TALL STEEL MONOPOLE, WITH AN INITIAL ANTENNA ARRAY CONSISTING OF TWELVE PANEL ANTENNAS AND ONE SIX FOOT WIDE MICROWAVE DISH ANTENNA (AB2017-355) Browne reported for the Special Committee of the Whole. Brenner moved to uphold the Hearing Examiner's decision. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) MINUTES CONSENT Buchanan moved to approve Minutes Consent items one through eight. The motion was seconded. Browne moved to withdraw item seven from consent. The motion was seconded. Regular County Council Meeting, 1/30/2018, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. The motion to withdraw carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) The motion to approve items one through six and eight carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 1. COUNTY COUNCIL FOR OCTOBER 10, 2017 2. SPECIAL COMMITTEE OF THE WHOLE FOR OCTOBER 24, 2017 3. COUNTY COUNCIL FOR OCTOBER 24, 2017 4. SPECIAL COMMITTEE OF THE WHOLE FOR NOVEMBER 8, 2017 S. COMMITTEE OF THE WHOLE FOR NOVEMBER 8, 2017 6. COUNTY COUNCIL FOR NOVEMBER 8, 2017 7. SURFACE WATER WORK SESSION FOR NOVEMBER 14, 2017 Buchanan moved to approve the minutes. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Buchanan, Byrd, Donovan, and Sidhu (6) Nays: None(0) Abstains: Browne (1) S. COMMITTEE OF THE WHOLE FOR NOVEMBER 21, 2017 PUBLIC HEARINGS 1. RESOLUTION CLARIFYING 2018 PROPERTY TAX LEVY ORDINANCES (AB2018-040) Browne opened the public hearing, and hearing no one, closed the public hearing. Brenner moved to approve the resolution. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Regular County Council Meeting, 1/30/2018, Page 2 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. OPEN SESSION The following people spoke about the State legislative Hirst fix by Engrossed Substitute Senate Bill (ESSB) 6091 and the proposed emergency interim ordinance (AB2018-057) : • Debbie (inaudible) • John Westerfield • Jeremiah Ramsey • Denise Thompson • Mary Kay Robinson • Jane Agard • Bud Breakey • Ben Elenbaas • Paul Isaacson • Matthew Goggin • Jay Markarian • Larry Helm • John Soine • Rosemary Vanbeek • Theresa Sygitowicz • Luke White • Brent McMillan • Roger Almskaar, Citizens Alliance for Property Rights • Perry Eskridge, Whatcom Association of Realtors • Natalie McClendon • Robin Dexter • Patty Hammer The following people spoke about other issues: • Gary Honcoop spoke about Planning Commission appointments. • Ben Elenbaas also spoke about Planning Commission appointments. • John Maberry spoke about the Planning Commission appointments. • Joy Gilfilen, Restorative Community Coalition, spoke about the Incarceration Prevention and Reduction Task Force appointments, amending the Task Force ordinance regarding membership, and repairs to the jail. • Brad Rader spoke about the Planning Commission appointments. • Rob Dhaliwal spoke about the Planning Commission appointments. • Larry Helm also spoke about the Planning Commission appointments. • Jim Dickinson spoke about his application for membership on the Lummi Island Ferry Advisory Committee. • Theresa Sygitowicz submitted handouts (on file) and also spoke about appointments to the Planning Commission, Flood Control Zone District Advisory Committee, and Acme/Van Zandt Flood Subzone. • Dana Briggs spoke about homeless issues in Whatcom County. OTHER ITEMS Regular County Council Meeting, 1/30/2018, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. 7. EMERGENCY ORDINANCE (INTERIM) REPEALING ORDINANCE 2017-057 AND ADOPTING AMENDMENTS TO THE WHATCOM COUNTY COMPREHENSIVE PLAN AND WHATCOM COUNTY CODE TITLE 15 (BUILDINGS AND CONSTRUCTION), TITLE 20 (ZONING), TITLE 21 (LAND DIVISION REGULATIONS), AND TITLE 24 (HEALTH CODE), RELATING TO WATER RESOURCES (AB2018-057) Browne reported for the Special Committee of the Whole. Brenner moved to adopt the substitute ordinance as distributed on January 30, 2018 at 11:45 a.m. The motion was seconded. Councilmembers discussed whether or not this problem is an emergency, thanked staff for their quick work on developing the ordinance after the State's adoption of Engrossed Substitute Senate Bill (ESSB) 6091, and discussed the lack of time for review and discussion, not going to the Planning Commission, the State Environmental Policy Act (SEPA) determination of non -significance, local control, engaging in a good legislative process, implementing the water resources inventory area (WRIA) 1 plan, the importance of maintaining local control, finding a long-term solution, County liability, working within the State's legislation, keeping the citizens involved as they continue to work on water issues, the work councilmembers have done to solve the problem, and verifying untrue comments about what councilmembers have or have not said or done. Karen Frakes, Prosecutor's Office, explained the differences between this emergency interim ordinance and the interim ordinance being introduced later in this evening. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, and Sidhu (6) Nays: Donovan (1) (Clerk's Note: the Council took a break at 8:51 to 9:04 p.m.) CONSENT AGENDA Sidhu reported for the Finance and Administrative Services Committee and moved to approve Consent Agenda items one through eight. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 1. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND THE WASHINGTON STATE DEPARTMENT OF TRANSPORTATION TO OBLIGATE FEDERAL FUNDS FOR PRELIMINARY ENGINEERING AND ENVIRONMENTAL PERMITTING FOR THE GUARDRAIL SAFETY PROGRAM CRP NO. 918002, IN THE AMOUNT OF $110,000 (AB2018-046) Regular County Council Meeting, 1/30/2018, Page 4 •• 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. 2. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY AND WHATCOM CONSERVATION DISTRICT TO MODIFY THE SCOPE OF WORK TO PROVIDE ADDITIONAL ASSISTANCE TO SUPPORT HOMEOWNERS PARTICIPATING IN THE HOMEOWNER INCENTIVE DO-IT-YOURSELF NATIVE LANDSCAPING PROGRAM, IN 2018 IN THE AMOUNT OF $33,698 FOR A TOTAL AMENDED CONTRACT AMOUNT OF $305,492 (AB2018-047) 3. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO AN INTERLOCAL AGREEMENT BETWEEN WHATCOM COUNTY AND WHATCOM COUNTY FIRE PROTECTION DISTRICTS 1, 4, 5, 7, 8, 11, 14, 16, 17, 18, 19, AND 21, BELLINGHAM FIRE DEPARTMENT, LYNDEN FIRE DEPARTMENT, AND SOUTH WHATCOM FIRE AUTHORITY FOR BASIC LIFE SUPPORT AND FIRST RESPONSE SERVICES THROUGH DECEMBER 31, 2022 (AB2018-048) 4. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND WASHINGTON DEPARTMENT OF HEALTH TO RECEIVE FUNDING FOR PUBLIC HEALTH PROGRAMS, IN THE AMOUNT OF $1,294,039 (AB2018-049) S. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO AUTHORIZE PURCHASE OF AUTO BODY REPAIR SERVICES FROM VENDOR GITT'S AUTOBODY USING THE WASHINGTON STATE CONTRACT #05015, IN AN AMOUNT NOT TO EXCEED $70,000 (AB2018-050) 6. REQUEST APPROVAL FOR THE COUNTY EXECUTIVE TO AUTHORIZE PURCHASE OF 25 REPLACEMENT TASERS AND RELATED ACCESSORIES FROM VENDOR AXON ENTERPRISE, INC. USING WASHINGTON STATE CONTRACT #02315, IN THE AMOUNT OF $40,490.21 (AB2018-051) 7. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT BETWEEN WHATCOM COUNTY AND ELECTION SYSTEMS & SOFTWARE LLC (ES&S) FOR ACQUISITION, INSTALLATION, TRAINING, AND FIRST YEAR MAINTENANCE OF ES&S MAIL BALLOT VERIFIER EQUIPMENT, IN THE AMOUNT OF $89,095 (AB2018-052) 8. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY AND NORTH SOUND BEHAVIORAL HEALTH ORGANIZATION TO CLARIFY THE TERMS AND CONDITIONS OF COST REIMBURSEMENT (AB2018-053) OTHER ITEMS 1. ORDINANCE AMENDING THE 2018 WHATCOM COUNTY BUDGET, THIRD REQUEST, IN THE AMOUNT OF $1,888,113 (AB2018-037) Sidhu reported for the Finance and Administrative Services Committee and moved to adopt the ordinance. 70 Regular County Council Meeting, 1/30/2018, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Jack Louws, County Executive, answered questions on the electronic patient care reporting system and having better success measurements before approving the budget, the administration's responsibility to do the best job possible and the contracting process providing more detail. Staff and councilmembers discussed the process for Council appropriating money and then approving contracts. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 2. ORDINANCE APPROVING THE FIRST AMENDMENT TO PROJECT BUDGET NO. 2 (JAIL IMPROVEMENT FUND) OF THE 2011 BUDGET (AS ESTABLISHED THROUGH ORDINANCE 2011-031) TO ADD $350,000 OF EXPENDITURE AUTHORITY, FOR A TOTAL AMENDED PROJECT BUDGET AMOUNT OF $3,467,700 (AB2018-038) Sidhu reported for the Finance and Administrative Services Committee and moved to adopt the ordinance. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 3. ORDINANCE INCREASING TREASURER PETTY CASH FUND (AB2018-039) Sidhu reported for the Finance and Administrative Services Committee and moved to adopt the ordinance. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 4. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO A CONTRACT AMENDMENT BETWEEN WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT AND THE NATURE CONSERVANCY TO ALLOCATE THE SECOND YEAR OF FEDERAL FUNDING FOR THE DEMING LEVEE IMPROVEMENT PROJECT AND THE LOWER NOOKSACK RIVER GEOMORPHIC ASSESSMENT IN THE AMOUNT OF $150,000, FOR A TOTAL AMENDED CONTRACT AMOUNT OF $400,000 (COUNCIL ACTING AS THE WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT BOARD OF SUPERVISORS) (AB2018-043) Sidhu reported for the Finance and Administrative Services Committee and moved to approve the request. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Regular County Council Meeting, 1/30/2018, Page 6 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Nays: None(0) 5. REQUEST AUTHORIZATION FOR THE COUNTY EXECUTIVE TO ENTER INTO AN INTERLOCAL AGREEMENT BETWEEN WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT AND WHATCOM CONSERVATION DISTRICT TO ENHANCE AND SUPPORT ELEMENTS OF WHATCOM COUNTY'S POLLUTION IDENTIFICATION AND CORRECTION PROGRAM, IN THE AMOUNT OF $55,000 (COUNCIL ACTING AS THE WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT BOARD OF SUPERVISORS) (AB2018-044) Sidhu reported for the Finance and Administrative Services Committee and moved to approve the request. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 6. RESOLUTION ACCEPTING THE TREASURER'S LIST OF PETITIONS FOR TAX REFUNDS (AB2018-045) Sidhu reported for the Finance and Administrative Services Committee and moved to approve the request. area. Steve Oliver, Treasurer, answered questions on the tax implication of downzoning an The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 8. APPROVAL OF SPECIAL STANDING COUNCIL MEETING DATES FOR 2018 (ADDING HEALTH BOARD AND LAKE WHATCOM JOINT COUNCILS AND COMMISSION MEETING DATES TO THE COUNCIL'S SCHEDULE) (AB2018- 027) Buchanan moved to approve the request. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) COUNCIL APPOINTMENTS TO BOARDS, COMMISSIONS, AND COMMITTEES 1. ANNUAL APPOINTMENTS TO COUNCIL -APPOINTED POSITIONS ON CITIZEN BOARDS, COMMISSIONS, AND COMMITTEES (FROM JANUARY 16) (AB2018- 029) 72 Regular County Council Meeting, 1/30/2018, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. Sidhu moved to accept and consider the late applications for this item and the next two items on the agenda. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) (Clerk's Note: See attached voting forms for Council appointments, Attachment A.) 2. ANNUAL APPOINTMENTS TO FLOOD CONTROL ZONE DISTRICT ADVISORY COMMITTEE, AND FLOOD CONTROL SUB -ZONES ADVISORY COMMITTEE (COUNCIL ACTING AS THE WHATCOM COUNTY FLOOD CONTROL ZONE DISTRICT BOARD OF SUPERVISORS) (FROM JANUARY 16) (AB2018-030) (Clerk's Note: See the above item regarding consideration of late applications and the attached voting forms for Board of Supervisors appointments, Attachment B.) 3. APPOINTMENTS TO THE CLIMATE IMPACT ADVISORY (AB2018-028) (Clerk's Note: See the above item regarding consideration of late applications.) Browne moved to vote for 11 candidates each. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) (Clerk's Note: See the attached voting forms for Council appointments, Round 1, Attachment C.) Donovan moved to approve the appointment of all the applicants who received at least four votes: Seth Fleetwood, Sharon Shewmake, Derek Gremban, Alex Ramel, Kate Blystone, Treva Gabrish, William Harman, and Gabriel Westergreen. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Donovan moved to vote for three people from the list of applicants who received three votes in the first round: Grossman, Hartsoch, Kershner, Miller, and Verburg. The motion was seconded. Byrd moved to amend the motion to also include Rachael Mueller. Regular County Council Meeting, 1/30/2018, Page 8 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. The motion was seconded. The motion to amend carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, and Donovan (6) Nays: Sidhu (1) The motion as amended carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) (Clerk's Note: See the attached voting forms for Council appointments, Round 2, Attachment D.) Browne stated the Council needs to assign staggered terms to the appointed committee members. Six members will have three year terms and five members will have two year terms. Sidhu moved that people who got the most votes, the first six, will have a full term and the other five will have a partial term. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Byrd moved to approve the appointment of Eric Grossman, David Kershner, and Tim Miller. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Dana Brown -Davis, Clerk of the Council, stated there are eight top vote recipients, not three. Donovan moved to assign Harmon, Westergreen, Miller, Kershner, and Grossman to two-year terms and the remaining committee members to three-year terms: Fleetwood, Shewmake, Gremban, Ramel, Blystone and Gabrish. The motion was seconded. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) 74 Regular County Council Meeting, 1/30/2018, Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. The Council appointed the following applicants to the Climate Impact Advisory Committee: • Three -Year Terms: Seth Fleetwood, Sharon Shewmake, Derek Gremban, Alex Ramel, Kate Blystone, Treva Gabrish • Two -Year Terms: William Harman, Gabriel Westergreen, Eric Grossman, David Kershner, and Tim Miller EXECUTIVE APPOINTMENTS TO BOARDS, COMMISSIONS, AND COMMITTEES I. REQUEST CONFIRMATION OF THE EXECUTIVE'S APPOINTMENTS TO BOARDS, COMMITTEES, AND COMMISSIONS FOR THE YEAR 2018 (AB2018- 054) Byrd moved to confirm the appointments. The motion was seconded. Byrd withdrew the Rural Library Board. The motion to confirm all appointments, except the Rural Library Board, carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) vote: The motion to confirm the Rural Library Board appointments carried by the following Ayes: Ballew, Brenner, Browne, Buchanan, Donovan, and Sidhu (6) Nays: None(0) Abstains: Byrd (1) INTRODUCTION ITEMS Sidhu moved to accept the Introduction Items. The motion was seconded. The following staff answered questions: • Mark Personius, Planning and Development Services Department • Dana Brown -Davis, Clerk of the Council Staff and councilmembers discussed the process for making amendments in committee. The motion carried by the following vote: Ayes: Ballew, Brenner, Browne, Buchanan, Byrd, Donovan, and Sidhu (7) Nays: None(0) Regular County Council Meeting, 1/30/2018, Page 10 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document is a draft and is provided as a courtesy. This document is not to be considered as the final minutes. All information contained herein is subject to change upon further review and approval by the Whatcom County Council. 1. ORDINANCE ADOPTING AMENDMENTS TO THE URBAN FRINGE SUBAREA PLAN, WHATCOM COUNTY COMPREHENSIVE PLAN, AND WHATCOM COUNTY ZONING CODE (AB2018-055) 2. ORDINANCE ADOPTING AMENDMENTS TO WHATCOM COUNTY CODE TITLE 2, ADMINISTRATION AND PERSONNEL; TITLE 9, PUBLIC PEACE, MORALS AND WELFARE; TITLE 15, BUILDING AND CONSTRUCTION; TITLE 16, ENVIRONMENT; TITLE 20, ZONING; TITLE 21, LAND DIVISION REGULATIONS; TITLE 23, SHORELINE MANAGEMENT PROGRAM; TITLE 24, HEALTH; AND CREATING A NEW TITLE 22, LAND USE AND DEVELOPMENT PROCEDURES, TO RELOCATE AND REVISE PROCEDURES FOR LAND USE AND DEVELOPMENT RELATED PROJECT PERMITS AND LEGISLATIVE ACTIONS CODE (AB2018-056) 3. ORDINANCE (INTERIM) REPEALING ORDINANCE 2017-057 AND ADOPTING AMENDMENTS TO THE WHATCOM COUNTY COMPREHENSIVE PLAN AND WHATCOM COUNTY CODE TITLE 15 (BUILDINGS AND CONSTRUCTION), TITLE 20 (ZONING), TITLE 21 (LAND DIVISION REGULATIONS), AND TITLE 24 (HEALTH CODE), RELATING TO WATER RESOURCES (AB2018-057A) COMMITTEE REPORTS, OTHER ITEMS, AND COUNCILMEMBER UPDATES Committee chairs gave committee reports. Councilmembers gave updates on recent activities and upcoming events. ADJOURN The meeting adjourned at 11:30 p.m. The County Council approved these minutes on , 2018. ATTEST: Dana Brown -Davis, Council Clerk Jill Nixon, Minutes Transcription WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Rud Browne, Council Chair 76 Regular County Council Meeting, 1/30/2018, Page it WHATCOM COUNTY COUNCIL Regular Council Meeting Minutes Attachment A AB2018-029 Ballew Brenner Browne Buchanan Byrd Donovan Sidhu Result DRAYTON HARBOR SHELLFISH PROTECTION DISTRICT ADVISORY COMMITTEE: Donovan nominated 7-0 Richard Beauregard Yes Yes Yes Yes Yes Yes Yes INCARCERATION PREVENTION & REDUCTION TASK FORCE - Community Health Center: Buchanan nominated Kate Hansen Yes Yes Yes Yes No Yes Yes 6-1 INCARCERATION PREVENTION & REDUCTION TASK FORCE - EMS: Buchanan nominated Jerry DeBruin Yes Yes Yes Yes Y Yes Yes 7-0 INCARCERATION PREVENTION & REDUCTION TASK FORCE - CommunityAction A enc nan nominated Byron Manering Yes Yes Yes Ye Yes Yes 7-0 Moonwater Yes Yes Yes Ye Yes Yes 7-1 INCARCERATION PREVENTION & REDUCTION TASK FORCE - Consumer an nominated Deborah Hawley Yes Yes Ye Yes Yes Yes 7-0 INCARCERATION PREVENTION & REDUCTION TASK FORCE - Citizen: Barry Mchale, nominated by Byrd 0 Lisa McShane, nominated b Sidhu Yes Yes es Yes Yes Wendy Miller, nominated by Brenner Yes LUMMI ISLAND FERRY ADVISORY COMMITTEE - Resident/Property Owner: Donovan nominated 5 2 Elizabeth Louis I Yes Yes Yes Yes Yes 2 James Dickinson Yes 5 Patricia Dunn ��&e Yes Yes Yes Yes Yes Yes 7 LUMMI ISLAND FERRY ADVISO MITTEE - Off -Island resident/ ro ert owner: Donovan nominated Crispin Colburn es Yes Yes Yes Yes Yes Imb 7-0 PLANNING COMMISSION - District 5: Donov inated Kelvin Barton, nominated by Tyle Byrd Yes Yes 2 Natalie McClendon, nominated by Todd Donova?IqIL, es 7 Yes Yes Yes Yes 5 PLANNING COMM 1111k District 1 : Byrd nominated Jon Maberry Yes I Yes Yes Yes Yes Yes Yes 7-0 PLANNING COMMISSION - DisflV 1 or 5: Buchanan nominated Kelvin Barton Yes Yes Yes Yes Yes 5 Jacob Tilbury 0 Rachel Nybert 0 Andrew Reding Yes Yes 2 PORTAGE BAY SHELLFISH PROTECTION DISTRICT: Brenner nominated Andy Ross I Yes Yes Yes Yes Yes Yes Yes 7-0 Regular County Council Meeting, 1/30/2018, Page 12 77 WHATCOM COUNTY COUNCIL Regular Council Meeting Minutes Attachment A AB2018-029 I Ballew Brenner Browne Buchanan Byrd Donovan Sidhu I Result SOLID WASTE ADVISORY COMMITTEE - Citizen 11 Lisa Friend Yes Yes Yes Yes Yes Yes Yes 7-0 SOLID WASTE ADVISORY COMMITTEE - Public Interest Group (full term position): Mark Peterson, nominated by Brenner Yes Yes Yes Yes Yes Yes Yes 7 Priscilla Brotherton, nominated by Buchanan Robert Hendricks, nominated by Brenner 0 0 SOLID WASTE ADVISORY COMMITTEE - Public Interest Group (partial term positiaAWd nominat Robert Hendricks Yes Yes Yes]1jFs Yes s Yes 7-0 SOLID WASTE ADVISORY COMMITTEE - Waste Recycling Industry: Byrd nominated AL Kevin Moore j Yes Yes Yes d11L YgW Yes Yes Yes 7-0 SOLID WASTE ADVISORY COMMITTEE - Waste Collection Industry: B rd nomiNated Troy Lautenbach Yes YesYes Yes Yes 7-0 WILDLIFE ADVISORY COMMITTEE - Technical Expertise 'ions : Frank Bob Yes Yes s Yes Yes Yes Yes 7-0 Joel Ingram Vikki Jackson Stephen Nyman Fenner Yarborough Canaan Cowles Christoper Kazimer WILDLIFE ADVISORY COMMITTEE -AQenera tions): Joan Drinkwin, nrinated by Byrd Yesql&Yes I Yes Yes Yes Yes Yes 7 Marvin Hoekema, nominated by Byrd Gregory Green, noAL by Byrd Ifes Yes Yes Yes Yes Yes Yes 7 es Yes Yes Yes Yes Yes 6 Rob Rich, nominated by Byrd Wendy Harris, nominated by Donovan Yes Yes Yes Yes Yes 5 Yes Yes Yes 3 Regular County Council Meeting, 1/30/2018, Page 13 78 WHATCOM COUNTY COUNCIL Regular Council Meeting Minutes Attachment B AB2018-030 I Ballew Brenner Browne Buchanan Byrd Donovan Sidhu Result FLOOD CONTROL ZONE DISTRICT ADVISORY COMMITTEE - Geographical Areas: Byrd nominated Michael Schoneveld J. Thomas Brewster Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes 7 5 Marvin Hoekema Yes Yes Yes Yes Yes 5 Holly O'Neil Yes Yes Yes Yes Yes 5 Theresa Sygitowicz Yes Yes Yes Yes 4 Steve Seymour Yes Yes 2 FLOOD CONTROL ZONE DISTRICT ADV. COMM. - Geographical Area Pa m : Byrd n ed Holly H'Neil Yes I Yes Yes Yes Yes 7-0 FLOOD CONTROL ZONE DISTRICT ADVISORY COMMITTEE - Special Districts: BAaanan nominated Scott Hulse Yes Yes Yes Yes Yes lowYes Yes Ron Bronsema FLOOD CONTROL ZONE DISTRICT ADVISORY COMMITTEE - Impacted Cities: Browne nominated 7-0 7-0 Kyle Christensen Yes I Yes Yes Y Yes kiLes Yes FLOOD CONTROL ZONE DISTRICT ADVISORY COM TEE - Alternates: B rd n minated Theresa Sygitowicz (0 Yes No om) Yes Yes Yes Yes 5-0 Brenner absent Steve Seymore FLOOD CONTROL SUBZONE ADVISORY COMMITTEE- VOTE 1: B rd nominated ACMENAN ZANDT Theresa Sygitowicz Ste<Powe F Yes I Yes — es Yes Yes Yes Yes 4 Yes Yes 5 Cin Yes Yes Yes Yes 4 Val Yes Yes 3 Holl Wes Yes Yes Yes 4 ACMENANI SUBZONE ADVISORY COMMITTEE- VOTE 2: B rd nominated Theresa4 S itowiczYes VFLOODCONML Yes Yes Cindy FabbriYes Yes Yes Yes Yes 5 Holly O'Neil Yes Yes Yes Yes 5 LYNDEN/EVERSON FLOOD CONTROL SUBZONE ADVISORY COMMITTEE (33): Brenner nominated Hank Roorda Yes Yes Yes Yes Yes Yes Yes 7-0 Joel VandeHoef Regular County Council Meeting, 1/30/2018, Page 14 79 WHATCOM COUNTY COUNCIL Regular Council Meeting Minutes Attachment C AB2018-029 I Ballew Brenner Browne Buchanan Byrd Donovan Sidhu Result CLIMATE IMPACT ADVISORY COMMITTEE - ROUND 1: Donovan nominated Yes 1 John All William Angel Yes 1 Charles Barnhart 0 Tiffany Bell Yes Yes 2 Lynn Billin ton Yes Yes 2 KATE BLYSTONE Yes Yes Yes Yes 4 John Bosche Yes 1 Ginny Broadhurst esA 2 Clara Jean Carmean 0 Francis Fitzgerald Yes 1 SETH FLEETWOOD Yes Yes Yes Yes Yes Yes 6 Kristin Forck AM 0 Erin Fortenberry 1 Patrick Freeland Yes4 Fes 7. 1 TREVA GABRISH Yes Yes Yes 4 DEREK GREMBAN Yes Yees Yes s 5 Eric Grossman Yes Yes 3 WILLIAM HARMAN Yes Yess Yes 4 Jacob Hartsoch Yes Yes 3 C. Kenneth Heck Yes 1 Renee Holt 0 Tim Johnson Yes 1 David Kershner Yes Yes ' Yes 3 Lee Laney 0 George Lawrence YeTRW 1 Jocelyn Leroux Yes 1 Jill Maclntyre Witt Yes 1 Laura McKinne Yes Yes 2 Sean Mertens 0 Tim Miller Yes Yes Yes 3 Rachael Mueller Yes Yes 2 Dana Osfer Yes 1 Sandy Paris 0 Jenny Rae Yes Yes 2 LEX RAMEL Yes Yes Yes Yes Yes 5 Ro Riesenberg 0 Jo c Segal 0 SHARON EWMAKE Yes Yes Yes Yes Yes Yes 6 Lauren 0 Edward U 0 James VerbAqAWYes Yes Yes 3 Colin Wahl 0 GABRIEL WESTERGREEN Yes Yes Yes Yes 4 Sam Winters 0 0 Nora Workman -Weaver The Council appointed the followinglin round 1: Kate Blystone, Treva Gabrish, William Harman, Gabriel Westergreen, Derek Gremban, Alex Ramel, Seth Fleetwood, Sharon Shewmake Regular County Council Meeting, 1/30/2018, Page 15 80 WHATCOM COUNTY COUNCIL Regular Council Meeting Minutes Attachment D AB2018-029 I Ballew Brenner Browne Buchanan CLIMATE IMPACT ADVISORY COMMITTEE - ROUND 2: Donovan nominated ERIC Jacob GROSSMAN Hartsoch Yes Yes Yes Yes DAVID KERSHNER Yes Yes Yes TIM MILLER Yes Yes Rachel Meuller Yes Yes James Verburg Yes The Council appointed the following in round two: Tim Miller, Eric Grossman, C M t 'A Donovan Sidhu I Result Yes Yes Yes Yes Yes Yes Yes 4 3 4 5 3 3 Regular County Council Meeting, 1/30/2018, Page 16 81 WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2018 78 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: 2/14/2018 2/27/2018 Introduction Division Head: 3/13/18 Finance/Council Dept. Head: Prosecutor: Purchasin /Bud et: Executive: TITLE OF DOCUMENT. Ordinance amending WCC 9.44.030 - Public Peace, Morals, and Welfare ATTACHMENTS: SEPA review required? ( ) Yes ( ) NO Should Clerk schedule a hearing ? ( ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: SUMMARYSTATEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Ordinance amending WCC 9.44.030 - Public Peace, Morals, and Welfare COMMITTEE ACTION: COUNCIL ACTION. 2/27/18: Introduced 7-0 Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/council. E:M PROPOSED: P-A's office INTRODUCTION: February 27, 2018 ORDINANCE NO. AMENDING WHATCOM COUNTY CODE 9.44.030, PUBLIC PEACE, MORALS, AND WELFARE WHEREAS, Whatcom County Code (WCC) 9.44.030 sets forth the penalty for a breach of the peace violation; and WHEREAS, the breach of the peace prohibition in WCC 9.44.010 is essentially a noise ordinance and a violation is currently punishable as a misdemeanor; and WHEREAS, treating such a violation as a criminal offense results in a penalty that is too harsh; and WHEREAS, Whatcom County law enforcement rarely, if ever, cites to this code violation; and WHEREAS, it would be in the best interest of the public to amend the penalty to a class 2 civil infraction. NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that Whatcom County Code Section 9.44.030 is hereby amended as follows: 9.44.030 Penalty. A violation of this chapter shall constitute a ....".a^.. ^F class 2 civil infraction punishable as set forth in RCW 7.80.120(1)(b). ADOPTED this day of , 2018. WHATCOM COUNTY COUNCIL ATTEST: WHATCOM COUNTY, WASHINGTON Dana Brown -Davis, Clerk of the Council APPROVYD AS TO FORM: aren N. Frakes Civil Deputy Prosecutor Rud Browne Council Chair ( ) Approved ( ) Denied Jack Louws, County Executive Date Signed: WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2018-093 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: SS 311118 - lVl 3113118 Council Division Head: q l Dept. Head: HAT COM COUNTY Prosecutor: COUNCIL Purchasing/Budget: Executive: c 1 el TITLE OF 1)6CUVEi7NT.• Request for County Council confirmation for County Executive's appointment of Mark Personius for Planning & Development Services Director effective 3126118 pursuant to Whatcom County Code Section 2.32 ATTACHMENTS: SEPA review required? ( ) Yes ( ) NO Should Clerk schedule a hearing? ( ) Yes ( ) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Mark Personius has worked for Whatcom County's Planning and Development Services department since 2012. He began as the Division Manager for Long Range Planning and has served as the Assistant Director since 2015. Prior to Whatcom County Mark worked for 10 years as an independent Growth Management Consultant as well as the Planning Director for EarthTech from 1994-2002. He has over 7 additional years of Planning experience early in his career in the state of Florida. Mark possesses certification from the American Institute of Certified Planners (AICP). He obtained his Bachelor's degree in Geography from Humboldt State University and has completed graduate studies in Geography/Urban Planning at the University of Minnesota. The appointment of Mark Personius is supported by representatives of the BIAW, Realtors Association and Sustainable Connections as well as the Directors of Public Works, Health Department and Human Resources whom all served as members of the screening committee for the selection process. COMMITTEE ACTION: COUNCIL ACTION.• Related County Contract #: Related File Numbers: Ordinance or Resolution Number. Please Note: Once adopted and signed, ordinances and.resolutions are available for viewing and printing on the County's website at. www.co.whatcom.wa.us/council. WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2018-094 CLEARANCES Initial Date Date Received in Council Office Agenda Date Assigned to: Originator: JT 11120117 �� E; V 3113118 /Council �.. Division Head: AD 12112117 Dept. Head: c Vie i Prosecutor: ,- '1;? " WHATCOM COUNTY Purchasing/Budget: 1 // I-Ag Executive: c TITLE OF DOCUMENT. - Contract between Whatcom County and Compass Health ATTACHMENTS: 1. Memo to County Executive 2. Contract Information Sheet 3. 2 Originals of Contract SEPA review required? ( ) Yes ( X) NO Should Clerk schedule a hearing? ( ) Yes (X ) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) The purpose of this contract is to provide mental health treatment services to youth ages 13 - 24 who utilize the services of Northwest Youth Services. COMMITTEE ACTION.• COUNCILACTION. Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at. www.co.whatcom.wa.us/council. He,alth Department TO: FROM: RE: DATE: Jack Louws, County Executive Ako Regina A. Delahunt, Director Youth Mental Health Support Services Contract February 13, 2018 Regina lahunt, Director RECEIVED FEB 2 12018 JACK LOUWS OUN I-Y EXECUTIVE Enclosed are two (2) originals of a contract between Whatcom County and Compass Health for your review and signature. Background and Purpose The purpose of this contract is to place a Compass Health professional at Northwest Youth Services to provide mental health services to youth ages 13 — 24. Mental health services will decrease the likelihood of ongoing substance abuse, suicidal ideation, and other behavioral health related risks. Services are intended to promote wellness and optimize opportunities for achieving safe and stable housing. Funding Amount and Source The source of funding for this contract, in an amount not to exceed $44,330, is the Behavioral Health Program fund. Funding for this contract is included in the 2018 budget and Council approval is required as funding exceeds $40,000. This contract was awarded under RFQ 17-67. This contract begins January 1, 2018, and was delayed in processing due to a last minute change in contractors. The original awardee decided against pursuing the contract, so the award and subsequent contract negotiations with Compass Health were delayed. Please contact Perry Mowery at extension 6059 you have any questions regarding this agreement. Encl. 509 Girard Street Bellingham, WA 98225-4005 360.778.6000 1 FAX 360.778.6001 WhatcomCountyHealth g, WhatcomCoHealth 0 Whatcom County � 1500 North State Street HEALTH Bellingham, WA 98225-4551 360.778.6100 1 FAX 360.778.6101 Department www.whatcomcounty.us/health WHATCOM COUNTY CONTRACT Whatcom County Contract No. INFORMATION SHEET do Igo A D G 0 Originating Department: Health Division/Program: (i.e. Dept. Division and Program) 8510 Human Services / 855020 Mental Health Contract or Grant Administrator: Perry Mowery Contractor's / Agency Name: Compass Health Is this a New Contract? If not, is this an Amendment or Renewal to an Existing Contract? Yes ❑ I No ❑ Yes ® No ❑ If Amendment or Renewal, (per WCC 3.08.100 (a)) Original Contract #: Does contract require Council Approval? Yes ® No ❑ If No, include WCC: (see Whatcom County Codes 3.06.010, 3.08,090 and 3.08.100) Is this a grant agreement? If yes, grantor agency contract number(s): CFDA#: Yes ❑ I No ® Is this contract grant funded? If yes, Whatcom County grant contract number(s): Yes ❑ No ® Is this contract the result of a RFP or Bid process? I IContract 17 — 67 Cost Center: 124100 Yes ® I No ❑ I If yes, RFP and Bid number(s): Is this agreement excluded from E-Verify? I No ❑ 1 Yes ® If no, include Attachment D Contractor Declaration form. It YE6, indicate exclusion(s) below: ❑ Professional services agreement for certified/licensed professional. ® Contract work is for less than $100,000. ❑ Contract for Commercial off the shelf items (COTS). ❑ Contract work is for less than 120 days. ❑ Work related subcontract less than $25,000, ❑ Interlocal Agreement (between Governments). ❑ Public Works - Local Agency/Federally Funded FHWA. Contract Amount:(sum of original contract amount and any prior amendments): Council approval required for, all property leases, contracts or bid awards exceeding $40,000, and professional service contract amendments that have an increase greater than $10,000 or 10% of contract amount, whichever is greater, except when: 1. Exercising an option contained in a contract previously approved by the council. 2. Contract is for design, construction, r-o-w acquisition, professional services, or other capital costs approved by council in a capital budget appropriation ordinance. 3. Bid or award is for supplies or equipment included approved in the budget. 4. Contract is for manufacturer's technical support and hardware maintenance of electronic systems and/or technical support and software maintenance from the developer of proprietary software currently used by Whatcom County. $ 44,330 This Amendment Amount: $ 1 Total Amended Amount: $ Summary of Scope: The purpose of this contract is to reduce risks associated with poor mental health and substance abuse among youth seeking care at Whatcom Northwest Youth Services (NWYS). Services provided will be oriented toward youth and young adults who utilize the services of NWYS. Term of Contract: 1 Year Expiration Date: 12/31/2018 Contract Routing: 1. Prepared by: J I Date: 11/20/17 2. Attomey signoff: I RB 3. AS Finance reviewed: 4. IT reviewed (if IT related): 5. Contractor signed: 6. Submitted to Exec.: 7. Council approved (if necessary): 8. Executive signed: 9. Original to Council: M Date: 1 /3/2018 Date: -2//&//8 Date: Date: s 7—IS' Date: Date: Date: Date: r-*b CONTRAUT �9'aIFOQ0 CONTRACT FOR SERVICES AGREEMENT [Insert additional specific name for your clarification] Compass Health, hereinafter called Contractor, and Whatcom County, hereinafter referred to as County, agree and contract as set forth in this Agreement, including: General Conditions, pp. 3 to 8 , Exhibit A (Scope of Work), pp. 9 to 10 Exhibit B (Compensation), pp. 11 to 1 Exhibit C (Certificate of Insurance). Copies of these items are attached hereto and incorporated herein by this reference as if fully set forth herein. The term of this Agreement shall commence on the 1st day of January, 2018, and shall, unless terminated or renewed as elsewhere provided in the Agreement, terminate on the 31st day of December, 2018. The general purpose or objective of this Agreement is to provide mental health services to youth at Northwest Youth Services, as more fully and definitively described in Exhibit A hereto. The language of Exhibit A controls in case of any conflict between it and that provided here. The maximum consideration for the initial term of this agreement or for any renewal term shall not exceed $44,330. The Contract Number, set forth above, shall be included on all billings or correspondence in connection therewith. Contractor acknowledges and by signing this contract agrees that the Indemnification provisions set forth in Paragraphs 11.1, 21.1, 30.1, 31.2, 32.1, 34.2, and 34.3, if included, are totally and fully part of this contract and have been mutually negotiated by the parties. IN WITNESS WHEREOF, the parties have executed this Agreement this - day of K - 2018. CONTRACTOR: Compass Health Tom Sebastian, Executive Director STATE OF WASHINGTON ) ss. COUNTY OF1 d_ ) . title of On this _ day of F '91 , 2018, before me personally appeared 0 f � �, d l�fae known to be the (title) ( (Company) and who executed the above instrument and who acknowled ed to me the act of signing and sealing thereof. NOTARY PUBLIC in and for the S(IJ of Washington, residing at f- My commission expires `+ CONTRACTOR INFORMATION: Compass Health Tom Sebastian, Executive Director PO Box 3810/4526 Federal Ave. Everett, WA 98213-8810 Phone: 425-349-6200 Tom. Sebastian(DCompaSSh.org H L_010118_MHSvcs_CompassHealth Page 1 of 62 E:1:3 WHATCOM COUNTY: Recommended for Approval: F 3 r ; Anne Deacon, Human Services Manager Date Re4 ,�i6 Regina elahunt, Director Approved as to fgfrn s Royce_ �'66 ingham; Prosecuting Attorney A oved: Accepted for Whatcom County: By: Jack Louws, Whatcom County Executive STATE OF WASHINGTON ) ) ss COUNTY OF WHATCOM ) 1 r __ Date Date On this day of , 2018, before me personally appeared Jack Louws, to me known to be the Executive of Whatcom County, who executed the above instrument and who acknowledged to me the act of signing and sealing thereof. NOTARY PUBLIC in and for the State of Washington, residing at My commission expires H L_010118_M H Svcs_Compass Health Page 2 of'�2, GENERAL CONDITIONS Series 00-09: Provisions Related to Scope and Nature of Services 0.1 Scope of Services: The Contractor agrees to provide to the County services and any materials as set forth in the project narrative identified as Exhibit "A", during the agreement period. No material, labor, or facilities will be furnished by the County, unless otherwise provided for in the Agreement. Series 10-19: Provisions Related to Term and Termination 10.1 Term: Services provided by Contractor prior to or after the term of this contract shall be performed at the expense of Contractor and are not compensable under this contract unless both parties hereto agree to such provision in writing. The term of this Agreement may be extended by mutual agreement of the parties; provided, however, that the Agreement is in writing and signed by both parties. 10.2 Extension: The duration of this Agreement may be extended by mutual written consent of the parties, for a period of up to one year, and for a total of no longer than three years. 11.1 Termination for Default: If the Contractor defaults by failing to perform any of the obligations of the contract or becomes insolvent or is declared bankrupt or commits any act of bankruptcy or insolvency or makes an assignment for the benefit of creditors, the County may, by depositing written notice to the Contractor in the U.S. mail, first class postage prepaid, terminate the contract, and at the County's option, obtain performance of the work elsewhere. Termination shall be effective upon Contractor's receipt of the written notice, or within three (3) days of the mailing of the notice, whichever occurs first. If the contract is terminated for default, the Contractor shall not be entitled to receive any further payments under the contract until all work called for has been fully performed. Any extra cost or damage to the County resulting from such default(s) shall be deducted from any money due or coming due to the Contractor. The Contractor shall bear any extra expenses incurred by the County in completing the work, including all increased costs for completing the work, and all damage sustained, or which may be sustained by the County by reason of such default. 11.2 Termination for Reduction in Funding: In the event that funding from State, Federal or other sources is withdrawn, reduced, or limited in any way after the effective date of this Agreement, and prior to its normal completion, the County may summarily terminate this Agreement as to -the funds withdrawn, reduced, or limited, notwithstanding any other termination provisions of this Agreement. If the level of funding withdrawn, reduced or limited is so great that the County deems that the continuation of the programs covered by this Agreement is no longer in the best interest of the County, the County may summarily terminate this Agreement in whole, notwithstanding any other termination provisions of this Agreement. Termination under this section shall be effective upon receipt of written notice as specified herein, or within three days of the mailing of the notice, whichever occurs first. 11.3 Termination for Public Convenience: The County may terminate the Agreement in whole or in part whenever the County determines, in its sole discretion, that such termination is in the interests of the County. Whenever the Agreement is terminated in accordance with this paragraph, the Contractor shall be entitled to payment for actual work performed at unit contract prices for completed items of work. An equitable adjustment in the contract price for partially completed items of work will be made, but such adjustment shall not include provision for loss of anticipated profit on deleted or uncompleted work. Termination of this Agreement by the County at any time during the term, whether for default or convenience, shall not constitute breach of contract by the County. Series 20-29: Provisions Related to Consideration and Payments 20.1 Accounting and Payment for Contractor Services: Payment to the Contractor for services rendered under this Agreement shall be as set forth in Exhibit "B." Where Exhibit "B" requires payments by the County, payment shall be based upon written claims supported, unless otherwise provided in Exhibit "B," by documentation of units of work actually performed and amounts earned, including, where appropriate, the actual number of days worked each month, total number of hours for the month, and the total dollar payment requested, so as to comply with municipal auditing requirements. Unless specifically stated in Exhibit "B" or approved in writing in advance by the official executing this Agreement for the County or his designee (hereinafter referred to as the "Administrative Officer") the County will not reimburse the Contractor for any costs or expenses incurred by the Contractor in the performance of this contract. Where required, the County shall, upon receipt of appropriate H L_010118_MHSvcs_CompassHealth Page 3 of a Z, documentation, compensate the Contractor, no more often than monthly, in accordance with the County's customary procedures, pursuant to the fee schedule set forth in Exhibit "B." 21.1 Taxes: The Contractor understands and acknowledges that the County will not withhold Federal or State income taxes. Where required by State or Federal law, the Contractor authorizes the County to withhold for any taxes other than income taxes (i.e., Medicare). All compensation received by the Contractor will be reported to the Internal Revenue Service at the end of the calendar year in accordance with the applicable IRS regulations. It is the responsibility of the Contractor to make the necessary estimated tax payments throughout the year, if any, and the Contractor is solely liable for any tax obligation arising from the Contractor's performance of this Agreement. The Contractor hereby agrees to indemnify the County against any demand to pay taxes arising from the Contractor's failure to pay taxes on compensation earned pursuant to this Agreement. The County will pay sales and use taxes imposed on goods or services acquired hereunder as required by law. The Contractor must pay all other taxes, including, but not limited to, Business and Occupation Tax, taxes based on the Contractor's gross or net income, or personal property to which the County does not hold title. The County is exempt from Federal Excise Tax. 22.1 Withholding Payment: In the event the County's Administrative Officer determines that the Contractor has failed to perform any obligation under this Agreement within the times set forth in this Agreement, then the County may withhold from amounts otherwise due and payable to Contractor the amount determined by the County as necessary to cure the default, until the Administrative Officer determines that such failure to perform has been cured. Withholding under this clause shall not be deemed a breach entitling Contractor to termination or damages, provided that the County promptly gives notice in writing to the Contractor of the nature of the default or failure to perform, and in no case more than 10 days after it determines to withhold amounts otherwise due. A determination of the Administrative Officer set forth in a notice to the Contractor of the action required and/or the amount required to cure any alleged failure to perform shall be deemed conclusive, except to the extent that the Contractor acts within the times and in strict accord with the provisions of the Disputes clause of this Agreement. The County may act in accordance with any determination of the Administrative Officer which has become conclusive under this clause, without prejudice to any other remedy under the Agreement, to take all or any of the following actions: (1) cure any failure or default, (2) to pay any amount so required to be paid and to charge the same to the account of the Contractor, (3) to set off any amount so paid or incurred from amounts due or to become due the Contractor. In the event the Contractor obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to Contractor by reason of good faith withholding by the County under this clause. 23.1 Labor Standards: The Contractor agrees to comply with all applicable state and federal requirements, including but not limited to those pertaining to payment of wages and working conditions, in accordance with RCW 39.12.040, the Prevailing Wage Act; the Americans with Disabilities Act of 1990; the Davis -Bacon Act; and the Contract Work Hours and Safety Standards Act providing for weekly payment of prevailing wages, minimum overtime pay, and providing that no laborer or mechanic shall be required to work in surroundings or under conditions which are unsanitary, hazardous, or dangerous to health and safety as determined by regulations promulgated by the Federal Secretary of Labor and the State of Washington. Series 30-39: Provisions Related to Administration of Agreement 30.1 Independent Contractor: The Contractor's services shall be furnished by the Contractor as an independent contractor, and nothing herein contained shall be construed to create a relationship of employer -employee or master -servant, but all payments made hereunder and all services performed shall be made and performed pursuant to this Agreement by the Contractor as an independent contractor. The Contractor acknowledges that the entire compensation for this Agreement is specified in Exhibit "B" and the Contractor is not entitled to any benefits including, but not limited to: vacation pay, holiday pay, sick leave pay, medical, dental, or other insurance benefits, or any other rights or privileges afforded to employees of the County. The Contractor represents that he/she/it maintains a separate place of business, serves clients other than the County, will report all income and expense accrued under this contract to the Internal Revenue Service, and has a tax account with the State of Washington Department of Revenue for payment of all sales and use and Business and Occupation taxes collected by the State of Washington. Contractor will defend, indemnify and hold harmless the County, its officers, agents or employees from any loss or expense, including, but not limited to, settlements, judgments, setoffs, attorneys' fees or costs incurred by reason of claims or demands because of breach of the provisions of this paragraph. 30.2 Assignment and Subcontracting_ The performance of all activities contemplated by this agreement shall be accomplished by the Contractor. No portion of this contract may be assigned or subcontracted to any other individual, firm or entity without the express and prior written approval of the County. HL_010118_MHSvcs_CompassHea1th Page 4 oftZ 91 30.3 No Guarantee of Employment: The performance of all or part of this contract by the Contractor shall not operate to vest any employment rights whatsoever and shall not be deemed to guarantee any employment of the Contractor or any employee of the Contractor or any subcontractor or any employee of any subcontractor by the County at the present time or in the future. 31.1 Ownership of Items Produced: When the Contractor creates any copyrightable materials or invents any patentable property, the Contractor may copyright or patent the same, but the County retains a royalty -free, nonexclusive and irrevocable license to reproduce, publish, recover, or otherwise use the materials or property and to authorize other governments to use the same for state or local governmental purposes. Contractor further agrees to make research, notes, and other work products produced in the performance of this Agreement available to the County upon request. 31.2 PatenUCopyright Infringement: Not Applicable 32.1 Confidentiality: The Contractor, its employees, subcontractors, and their employees shall maintain the confidentiality of all information provided by the County or acquired by the Contractor in performance of this Agreement, except upon the prior written consent of the County or an order entered by a court after having acquired jurisdiction over the County. Contractor shall immediately give to the County notice of any judicial proceeding seeking disclosure of such information. Contractor shall indemnify and hold harmless the County, its officials, agents or employees from all loss or expense, including, but not limited to, settlements, judgments, setoffs, attorneys' fees and costs resulting from Contractor's breach of this provision. 33.1 Right to Review: This contract is subject to review by any Federal, State or County auditor. The County or its designee shall have the right to review and monitor the financial and service components of this program by whatever means are deemed expedient by the Administrative Officer or by the County Auditor's Office. Such review may occur with or without notice and may include, but is not limited to, on -site inspection by County agents or employees, inspection of all records or other materials which the County deems pertinent to the Agreement and its performance, and any and all communications with or evaluations by service recipients under this Agreement. The Contractor shall preserve and maintain all financial records and records relating to the performance of work under this Agreement for three (3) years after contract termination, and shall make them available for such review, within Whatcom County, State of Washington, upon request. Contractor also agrees to notify the Administrative Officer in advance of any inspections, audits, or program review by any individual, agency, or governmental unit whose purpose is to review the services provided within the terms of this Agreement. If no advance notice is given to the Contractor, then the Contractor agrees to notify the Administrative Officer as soon as it is practical. 34.1 Proof of Insurance: The Contractor shall carry for the duration of this Agreement general liability and property damage insurance with the following minimums: Property Damage per occurrence - $500,000.00 (this amount may vary with circumstances) General Liability & Property Damage for bodily injury- $1,000,000.00 (this amount may vary with circumstances) A Certificate of insurance, that also identifies the County as an additional insured, is attached hereto as Exhibit "C". This insurance shall be considered as primary and shall waive all rights of subrogation. The County insurance shall be noncontributory. a. Professional Liability - $1,000,000 per occurrence: If the professional liability insurance is a claims made policy, and should the contractor discontinue coverage either during the term of this contract or within three years of completion, the contractor agrees to purchase tail coverage for a minimum of three years from the completion date of this contract or any amendment to this contract. 34.2 Industrial Insurance Waiver: With respect to the performance of this agreement and as to claims against the County, its officers, agents and employees, the Contractor expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its employees and agrees that the obligations to indemnify, defend and hold harmless provided in this agreement extend to any claim brought by or on behalf of any employee of the Contractor. This waiver is mutually negotiated by the parties to this agreement. 34.3 Defense & Indemnity Agreement: The Contractor agrees to defend, indemnify and save harmless the County, its appointed and elective officers and employees, from and against all loss or expense, including, but not limited to, judgments, settlements, attorneys' fees and costs by reason of any and all claims and demands upon the County, its elected or appointed officials or employees for damages because of personal or bodily injury, including death at any time resulting therefrom, sustained by any person or persons and on account of damage to property, including loss of use thereof, whether such injury to persons or damage to property is due to the negligence of the Contractor, its subcontractors, HL_010118_MHSvcs_Compass Health Page 5 of d Z M its successor or assigns, or its agents, servants, or employees, the County, its appointed or elected officers, employees or their agents, except only such injury or damage as shall have been occasioned by the sole negligence of the County or its appointed or elected officials or employees. In case of damages caused by the concurrent negligence of Contractor, its subcontractors, its successors or assigns, or its agents, servants, or employees, and the County, its appointed or elected officers, employees or their agents, then this indemnification provision is enforceable only to the extent of the negligence of the Contractor, its agents, or its employees. It is further provided that no liability shall attach to the County by reason of entering into this contract, except as expressly provided herein. The parties specifically agree that this agreement is for the benefit of the parties only and this agreement shall create no rights in any third party. 35.1 Non -Discrimination in Employment: The County's policy is to provide equal opportunity in all terms, conditions and privileges of employment for all qualified applicants and employees without regard to race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status. The Contractor shall comply with all laws prohibiting discrimination against any employee or applicant for employment on the grounds of race, color, creed, religion, national origin, sex, sexual orientation, age, marital status, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Furthermore, in those cases in which the Contractor is governed by such laws, the Contractor shall take affirmative action to insure that applicants are employed, and treated during employment, without regard to their race, color, creed, religion, national origin, sex, age, marital status, sexual orientation, disability, or veteran status, except where such constitutes a bona fide occupational qualification. Such action shall include, but not be limited to: advertising, hiring, promotions, layoffs or terminations, rate of pay or other forms of compensation benefits, selection for training including apprenticeship, and participation in recreational and educational activities. In all solicitations or advertisements for employees placed by them or on their behalf, the Contractor shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. The foregoing provisions shall also be binding upon any subcontractor, provided that the foregoing provision shall not apply to contracts or subcontractors for standard commercial supplies or raw materials, or to sole proprietorships with no employees. 35.2 Non -Discrimination in Client Services: The Contractor shall not discriminate on the grounds of race, color, creed, religion, national origin, sex, age, marital status, sexual orientation, disability, or veteran status; or deny an individual or business any service or benefits under this Agreement; or subject an individual or business to segregation or separate treatment in any manner related to his/her/its receipt any service or services or other benefits provided under this Agreement; or deny an individual or business an opportunity to participate in any program provided by this Agreement. 36.1 Waiver of Noncompetition: Not Applicable 36.2 Conflict of Interest: If at any time prior to commencement of, or during the term of this Agreement, Contractor or any of its employees involved in the performance of this Agreement shall have or develop an interest in the subject matter of this Agreement that is potentially in conflict with the County's interest, then Contractor shall immediately notify the County of the same. The notification of the County shall be made with sufficient specificity to enable the County to make an informed judgment as to whether or not the County's interest may be compromised in any manner by the existence of the conflict, actual or potential. Thereafter, the County may require the Contractor to take reasonable steps to remove the conflict of interest. The County may also terminate this contract according to the provisions herein for termination. 37.1 Administration of Contract: This Agreement shall be subject to all laws, rules, and regulations of the United States of America, the State of Washington, and political subdivisions of the State of Washington. The Contractor also agrees to comply with applicable federal, state, county or municipal standards for licensing, certification and operation of facilities and programs, and accreditation and licensing of individuals. The County hereby appoints, and the Contractor hereby accepts, the Whatcom County Executive, and his or her designee, as the County's representative, hereinafter referred to as the Administrative Officer, for the purposes of administering the provisions of this Agreement, including the County's right to receive and act on all reports and documents, and any auditing performed by the County related to this Agreement. The Administrative Officer for purposes of this agreement is: Perry Mowery, Human Services Supervisor Whatcom County Health Department 509 Girard Street Bellingham, WA 98225 (360)778-6059 HL_010118_M &cs_CompassHealth Page 6 of 07, 93 PMowery anco.whatcom.wa.us 37.2 Notice: Except as set forth elsewhere in the Agreement, for all purposes under this Agreement except service of process, notice shall be given by the Contractor to the County's Administrative Officer under this Agreement. Notice to the Contractor for all purposes under this Agreement shall be given to the address provided by the Contractor herein above in the "Contractor Information" section. Notice may be given by delivery or by depositing in the US Mail, first class, postage prepaid. 38.1 Certification of Public Works Contractor's Status under State Law: Not Applicable 38.2 Certification Regarding Federal Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transactions: The Contractor further certifies, by executing this contract, that neither it nor its principles is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or Agency. The Contractor also agrees that it shall not knowingly enter into any lower tier covered transactions (a transaction between the Contractor and any other person) with a person who is proposed for debarment, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, and the Contractor agrees to include this clause titled "Certification Regarding Federal Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction" without modification, in all lower tier covered transactions and in all solicitations for lower tier transactions. The "Excluded Parties List System in the System for Award Management (SAM) website is available to research this information at WWW.SAM.GOV. Contractor shall immediately notify Whatcom County if, during the term of this Contract, Contractor becomes debarred. 38.3 E-Verify: Not Applicable Series 40-49: Provisions Related to Interpretation of Agreement and Resolution of Disputes 40.1 Modifications: Either party may request changes in the Agreement. Any and all agreed modifications, to be valid and binding upon either party, shall be in writing and signed by both of the parties. 40.2 Contractor Commitments, Warranties and Representations: Not Applicable 41.1 Severability: If any term or condition of this contract or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this contract are declared severable. 41.2 Waiver: Waiver of any breach or condition of this contract shall not be deemed a waiver of any prior or subsequent breach. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. The failure of the County to insist upon strict performance of any of the covenants and agreements of this Agreement, or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such, or any other covenants or agreements, but the same shall be and remain in full force and effect. 42.1 Disputes: a. General: Differences between the Contractor and the County, arising under and by virtue of the Contract Documents, shall be brought to the attention of the County at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. Except for such objections as are made of record in the manner hereinafter specified and within the time limits stated, the records, orders, rulings, instructions, and decisions of the Administrative Officer shall be final and conclusive. b. Notice of Potential Claims: The Contractor shall not be entitled to additional compensation which otherwise may be payable, or to extension of time for (1) any act or failure to act by the Administrative Officer or the County, or (2) the happening of any event or occurrence, unless the Contractor has given the County a written Notice of Potential Claim within ten (10) days of the commencement of the act, failure, or event giving rise to the claim, and before final payment by the County. The written Notice of Potential Claim shall set forth the reasons for which the Contractor believes additional compensation or extension of time is due, the nature of the cost involved, and insofar as possible, the HL_010118_MHSvcs_CompassHea1th Page 7 of J ,i amount of the potential claim. Contractor shall keep full and complete daily records of the work performed, labor and material used, and all costs and additional time claimed to be additional. c. Detailed Claim: The Contractor shall not be entitled to claim any such additional compensation, or extension of time, unless within thirty (30) days of the accomplishment of the portion of the work from which the claim arose, and before final payment by the County, the Contractor has given the County a detailed written statement of each element of cost or other compensation requested and of all elements of additional time required, and copies of any supporting documents evidencing the amount or the extension of time claimed to be due. Arbitration: Other than claims for injunctive relief brought by a party hereto (which may be brought either in court or pursuant to this arbitration provision), and consistent with the provisions hereinabove, any claim, dispute or controversy between the parties under, arising out of, or related to this Agreement or otherwise, including issues of specific performance, shall be determined by arbitration in Bellingham, Washington, under the applicable American Arbitration Association (AAA) rules in effect on the date hereof, as modified by this Agreement. There shall be one arbitrator selected by the parties within ten (10) days of the arbitration demand, or if not, by the AAA or any other group having similar credentials. Any issue about whether a claim is covered by this Agreement shall be determined by the arbitrator. The arbitrator shall apply substantive law and may award injunctive relief, equitable relief (including specific performance), or any other remedy available from a judge, including expenses, costs and attorney fees to the prevailing party and pre -award interest, but shall not have the power to award punitive damages. The decision of the arbitrator shall be final and binding and an order confirming the award or judgment upon the award may be entered in any court having jurisdiction. The parties agree that the decision of the arbitrator shall be the sole and exclusive remedy between them regarding any dispute presented or pled before the arbitrator. At the request of either party made not later than forty-five (45) days after the arbitration demand, the parties agree to submit the dispute to nonbinding mediation, which shall not delay the arbitration hearing date; provided, that either party may decline to mediate and proceed with arbitration. Unless otherwise specified herein, this Agreement shall be governed by the laws of Whatcom County and the State of Washington. 43.1 Venue and Choice of Law: In the event that any litigation should arise concerning the construction or interpretation of any of the terms of this Agreement, the venue of such action of litigation shall be in the courts of the State of Washington in and for the County of Whatcom. This Agreement shall be governed by the laws of the State of Washington. 44.1 Survival: The provisions of paragraphs 11.1, 11.2, 11.3 , 21.1, 22.1, 30.1, 31.1, 31.2, 32.1, 33.1, 34.2, 34.3, 36.1, 40.2, 41.2, 42.1, and 43.1, if utilized, shall survive, notwithstanding the termination or invalidity of this Agreement for any reason. 45.1 Entire Agreement: This written Agreement, comprised of the writings signed or otherwise identified and attached hereto, represents the entire Agreement between the parties and supersedes any prior oral statements, discussions or understandings between the parties. HL_010118_MHSvcs_CompassHea1th Page 8 of e?- 95 "EXHIBIT A" (SCOPE OF WORK) Background The 2017 Whatcom County Point -in -Time Homeless Count identified 175 individuals under the age of 18 as homeless. This was 24% of the total count. Homeless youth are at significant physical, mental, and emotional risk. Over 60% of youth surveyed in Whatcom County report experiencing anxiety in the past 30 days. One- third of Whatcom youth also report depression, with nearly 20% reporting they have considered suicide. Additionally, nearly one in three youth report using alcohol in the past month, while one in four report using marijuana in that same time frame. Mental health and substance use are interrelated. Poor mental health can increase the risk of substance use and substance use has been shown to greatly increase rates of attempted and completed suicides. Youth who use marijuana report nearly three times the amount of suicide contemplation, as well as attempted suicide. More broadly, many youth are struggling with issues that challenge their ability to connect and build resilience. About one in three (29%) twelfth grade students reported `feeling more alone than not' in the past year, and only 28% of students reported feeling satisfied with their lives. While most are looking forward to the future, about 15% demonstrated low hope for the future (source: Healthy Youth Survey). The services provided under this contract have been designed to reduce risks associated with poor mental health and substance use. Youth seeking care at Whatcom Northwest Youth Services (NWYS) struggle with a variety of stresses, traumas and anxieties. Services provided by a Compass Health provider located at NWYS will be oriented toward youth and young adults who utilize the services of NWYS. II. Statement of Work The contractor will: 1. Provide a Mental Health Provider to deliver services to individuals aged 13 — 24 that include, but are not limited to the following: • Screening and assessment of behavioral health issues for each client served • Developing formal and informal individualized service plans as appropriate • Connecting to treatment as indicated by screening, assessment and needs • Engaging and connecting to services identified in the individualized service plan • Referring to and coordinating with community resources and programs as appropriate for the identified needs of the individual • Providing Support and Case Management to assist in symptom stabilization and problem -solving • Creating a positive, supportive, and welcoming environment at NWYS for youth and young adults who are experiencing distress. 2. Ensure that services are provided 20 hours per week, excluding agency holidays 3. Develop and implement protocols for after-hours response in the event of a crisis. 4. Ensure access to clinical supervision for the Mental Health Provider no less than once every other week. H L_010118_MH Svcs_CompassHealth Page 9 of IV 5. Ensure that Mental Health Provider remains current and in good standing with licensure or agency affiliation as appropriate, and compliant with continuing education requirements. 6. Ensure services comply with all state and federal laws regulating confidentiality, as relevant. 111. Program Requirements Ensure all services are delivered by a Mental Health Provider, as defined by WAC, who is properly credentialed to provide mental health treatment in the state of Washington. The Mental Health Provider must demonstrate the ability, as a result of training and experience, to work effectively with youth and young adults, as well as a diverse population. IV. Reporting Requirements Monthly reports will be submitted and include the following information: • Number of individuals who received services • Number of individuals referred to ongoing mental health or substance use disorder services (assessment and/or treatment) V. Other Administrative Contract Requirements The contractor shall collaboratively develop a Memorandum of Understanding (MOU) with Northwest Youth Services to ensure the provision of consistent services. Specifics of the MOU will include: • A clear procedure for scheduled supervision meetings to support the mental health provider in provision of services to Northwest Youth Services clients. • Established goals and expectations of mental health services delivered to NWYS clients. • An established protocol for communication between the Contractor and Northwest Youth Services administration to ensure accurate and timely information sharing in regard to staff absences of both short and extended term duration. • An effective protocol the Contractor will use to ensure significant lead time of communicated information regarding changes in staff schedule, services, or personnel. HL_010118_MHSvcs_CompassHealth Page 10 of QZ/ 97 "EXHIBIT B" (COMPENSATION) LBudget and Funding The source of funding for this contract, in an amount not to exceed $44,330, is the local Behavioral Health Fund The budget for this program/project is as follows: Activity/Line Item Unit Cost Bud et Clinician II 52 weeks @ 20 hours $40,300 Indirect Cost Rate 10% $ 4,030 Total $44,330 II.lnvoicing 1. The Contractor shall submit itemized invoices on a monthly basis in a format approved by the County. 2. The Contractor shall submit invoices to (include PO #): Attention: Business Office Whatcom County Health Department 509 Girard Street Bellingham, WA 98225 3. Payment by the County will be considered timely if it is made within 30 days of the receipt and acceptance of billing information from Contractor. The County may withhold payment of an invoice if the Contractor submits it more than 30 days after the expiration of this contract. 4. Invoices must include the following statement, with an authorized signature and date: I certify that the materials have been furnished, the services rendered, or the labor performed as described on this invoice. 5. Duplication of Billed Costs or Payments for Service: The Contractor shall not bill the County for services performed or provided under this contract, and the County shall not pay the Contractor, if the Contractor has been or will be paid by any other source, including grants, for those costs used to perform or provide the services in this contract. The Contractor is responsible for any audit exceptions or disallowed amounts paid as a result of this contract. H L_010118_MHSvcs_CompassHealth Page 11 of pZ KV ACORD� CERTIFICATE OF LIABILITY INSURANCE 3/1/2018 DATE(MMIDDIYYYY) 2/23/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Lockton Companies 8110 E. Union Avenue Suite 700 Denver CO 80237ADDRESS: ANEA T AIC NNO Ext : aC No): E-MAIL N AFFORDING COVERAGE NA C# (303) 414-6000 INSURER A : Arch Specialty Insurance Company 21199 INSURED Compass Health, Inc. INSURER B : Philadelphia Indemnity Insurance Co. 18058 1075167 4526 Federal Avenue Everett, WA 98203 INSURER C IN E D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: 2741043 REVISION NUMBER: XXXXXXX THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL NSD SUER WVD POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MM/DD/YYYY LIMITS A A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE a OCCUR N N FLP005371304 WASHINGTON STOP GAP 3/1/2017 3/1/2017 3/1/2018 3/1/2018 EACH OCCURRENCE S 1,000,000 pRMAGE TO RENTED EMISrence $ 100,000 MED EXP (Any oneperson) 5,000 PERSONAL & ADV INJURY $ 1 OOO,OOO N'L AGGREGATE LIMIT APPLIES PER: POLICY JECT LOC POTHER: GENERAL AGGREGATE $ 3,000,000 PRODUCTS - COMP/OP AGG $ 3,000,000 $ B AUTOMOBILE LIABILITY ANY AUTO AAUTOS ONLY AUTOS ULED AUTOS ONLY X NON-OWNED ONEYO N N PHPK1614659 3/1/2017 3/1/2018 COMBINED SINGLE LIMIT Ea accident $ 1,000,000 X BODILY INJURY (Per person) $ X'Y{XXXX BODILY INJURY (Per accident) $ XXXX���� X PROPERTY accidenDAMAGE $ XXXXxxx $ XXX)CXX A UMBRELLA LIAR EXCESS LIAB OCCUR CLAIMS -MADE N N FLP005371304 3/1/2017 3/1/2018 EACH OCCURRENCE $ 2,000,000 X X AGGREGATE $ 2,000,000 DIED I I RETENTION $ $ XXXXXXX WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY CE-M R/PARTNER/EXECUnVE ❑ OFFICER/MEMBMB ER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N / A NOT APPLICABLE PER OTH- STATLITE ER E.L. EACH ACCIDENT $ X} {XXX E.L. DISEASE - EA EMPLOYEE $ XXXXXXX E.L. DISEASE - POLICY LIMIT V V xxxx Xt1At11�At1 A Professional Liability N N FLP005371304 3/1/2017 3/1/2018 $1M Each Claim / $3M Agg. DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Whatcom County Health Department is added as Additional Insured, but only with respects to operations of the Named Insured. GtK I II-IGA 1 t HULUtK GANGtLLA IIUN SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 2741043 AUTHORIZED REPRESENTATIVE Whatcom County Health Department 509 Girard Street Bellingham, WA 98225 ACORD 25 (20161031 ©1988- 015 ACORD CORPO ATION. All rights reserved The ACORD name and logo are registered marks of ACORD 99 aZ- WHATCOM COUNTY COUNCIL AGENDA BILL NO. 2018-095 CLEARANCES Initial Date Date Received in Council O ace A enda Date Assigned to: iBoard of Supervisors Originator: JNT 211212018 a l_ V E 10) � �� �', (�; 1 u � _: Mail 0 0 21 March 13, 2018 Division Head: � '�-p Dept. Head: 2 Prosecutor: dlg 02/13/18 COUNTY COUNCIL Purchasing/Budget: 3 Executive: J TITLE OF DOCUMENT: Agreement with Washington Department of Fish & Wildlife to receive federal EPA National Estuary Program funds to support Lower Nooksack River Floodplain Integrated Planning ATTACHMENTS: • Sub -recipient Agreement SEPA review required? ( ) Yes ( X) NO Should Clerk schedule a hearing? ( ) Yes (X) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE. (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) National Estuary Program (NEP) funds from the U.S. Environmental Protection Agency (EPA) and administered through the Washington Department of Fish and Wildlife will be used for technical studies and consultant services to support the floodplain integrated -planning update of the Lower Nooksack River Comprehensive Flood Hazard Management Plan. The sub -recipient agreement is for $750,000 in federal funds; local match is not required. COMMITTEE ACTION.• COUNCIL ACTION.• Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us/council. 100 WHATCOM COUNTY ��oM �o Jon Hutchings Public Works Dept. rP oti Director River and Flood Division 3 < 322 N. Commercial St., Suite 120 RECEIVED Bellingham, WA 98225 z �SH1NGMAR I re- 2018 MEMORANDUM JACK i. OUW COUNTY EXECUTIVE TO: The Honorable Members of the Whatcom County Flood Control Zone District Board of Supervisors THROUGH: Jon Hutchings, Public Works Directo FROM: Paula Harris, River & Flood Manager Gary Stoyka, Natural Resource Manage ,. RE: National Estuary Program Grant for Floodplain Integrated Planning DATE: February 20, 2018 Enclosed are two (2) originals of a sub -recipient agreement between Washington Department of Fish and Wildlife and Whatcom County Flood Control Zone District for your review and signature. ■ Requested Action Public Works respectfully requests that the County Executive, acting for the Whatcom County FCZD Board of Supervisors, execute the proposed agreement with the Washington Department of Fish and Wildlife to receive federal EPA National Estuary Program (NEP) funding for technical studies and consultant services in support of floodplain integrated planning. ■ Background and Purpose The Lower Nooksack River Comprehensive Flood Hazard Management Plan (CFHMP) was originally completed in 1999. That plan identified project concepts to reduce community flood risk in the lower 36 miles of the Nooksack River. The CFHMP adoption timing coincided with the federal Endangered Species Act listings of Chinook salmon, steelhead, and bull trout as threatened and the associated preparation of the WRIA 1 Salmonid Recovery Plan (2005). Flood and salmon recovery planning and project implementation over the last 18 years has occurred against the background of growing community awareness that floodplain lands are also essential to many long-established farming operations in Whatcom County. An approach to floodplain management that successfully integrates the needs of "fish/flood/farms" has the best potential to provide broad public benefits and successfully meet multiple objectives over the long-term. This grant will support technical studies and consultant services in support of the planning process. ■ Funding Amount and Source This grant for $750,000 is a National Estuary Program (NEP) grant from the U.S. EPA and administered by Washington Department of Fish and Wildlife. No local match is required. Please contact Paula at extension 6285, if you have any questions or concerns regarding the terms of this amendment. Encl V2.0 101 WHATCOM COUNTY CONTRACT Whatcom County Contract No. INFORMATION SHEET ® /90 3 0 0 12, Originating Department: Public Works Division/Program: (i.e. Dept. Division and Program) 9075 Flood / 907525 CFHMP Contract or Grant Administrator: Paula Harris, River & Flood Manager/District Engineer Contractor's / Agency Name: Washington Department of Fish & Wildlife Is this a New Contract? If not, is this an Amendment or Renewal to an Existing Contract? Yes ❑ No ❑ Yes ® No ❑ If Amendment or Renewal, (per WCC 3.08.100 (a)) Original Contract #: Does contract require Council Approval? Yes ® No ❑ If No, include WCC: (see Whatcom County Codes 3.06.010, 3.08.090 and 3.08.100) Is this a grant agreement? Yes ® No ❑ If yes, grantor agency contract number(s): 18-10194 CFDA#: 66.123 Is this contract grant funded? Yes ❑ No 15� If yes, Whatcom County grant contract number(s): Is this contract the result of a RFP or Bid process? Contract Yes ❑ No ® If yes, RFP and Bid number(s): Cost Center: 169104 Is this agreement excluded from E-Verify? No ❑ Yes ® If no, include Attachment D Contractor Declaration form. If YES, indicate exclusion(s) below: ❑ Professional services agreement for certified/licensed professional. ❑ Contract work is for less than $100,000. ❑ Contract for Commercial off the shelf items (COTS). ❑ Contract work is for less than 120 days. ❑ Work related subcontract less than $25,000. ® Interlocal Agreement (between Governments). ❑ Public Works - Local Agency/Federally Funded FHWA. Contract Amount:(sum of original contract Council approval required for; all property leases, contracts or bid awards exceeding amount and any prior amendments): $40,000, and professional service contract amendments that have an increase greater $ 750,000 than $10,000 or 10% of contract amount, whichever is greater, except when: l . Exercising an option contained in a contract previously approved by the council. This Amendment Amount: 2. Contract is for design, construction, r-o-w acquisition, professional services, or $ other capital costs approved by council in a capital budget appropriation ordinance. Total Amended Amount: $ 3. Bid or award is for supplies or equipment included approved in the budget. 4. Contract is for manufacturer's technical support and hardware maintenance of electronic systems and/or technical support and software maintenance from the developer of proprietary software currently used by Whatcom County. Summary of Scope: National Estuary Program funds from the EPA and administered through the Washington Department of Fish and Wildlife will be used for technical studies and consultant services to support the floodplain integrated planning update of the Lower Nooksack River Comprehensive Flood Hazard Management Plan. The sub -recipient agreement totals $750,000 in federal funds; local match is not required. Term of Contract: February 1, 2018 TExpiration Date: December 1, 2018 Contract Routing: 1. Prepared by: John N. Thompson Date: 2. Attorney signoff. Daniel L. Gibson r— p car 15 Date: 3. AS Finance reviewed: MCaldwell p / Date: 4. IT reviewed (if IT related): Date: 5. Contractor signed: Date: 6. Submitted to Exec.: Date: 7. Council approved (if necessary): Date: 8. Executive signed: Date: 9. Original to Council: Date: Last edited 10/31/16 2/ 12/2018 02113118 2/12/18 102 HATMA COUNT y vP u G F�aShLi1gt02 £ .%`�,. �. {r�nd? A...�' 3 '� L Department of FISH and GRANT AGREEMENT - EPA FUNDS 0/ Y03 00 WILDLIFE TITLE: Develop Data and Support for Floodplain WDFW NUMBER: 18-10194 Management Strategies GRANTEE: Whatcom County Flood Control Zone District CONTRACT PERIOD: 02/01/2018 to 12/01/2019 TYPE: Payable / Grant / Sub -Recipient Federal — CONTRACT VALUE: $750,000.00 EPA - #16-05251 A. PARTIES TO THIS CONTRACT This contract is entered into between the Washington State Department of Fish and Wildlife (WDFW), Post Office Box 43200, Olympia, WA 98504-3200; and Whatcom County Flood Control Zone District (Grantee), 322 Commercial St #120, Bellingham, WA 98225-4042; and shall be binding upon the agents and all persons acting by or through the parties. B. PURPOSE OF CONTRACT The purpose of this contract is to provide a grant award to the Grantee for the project specified herein. C. DESCRIPTION OF PROJECT The Grantee shall perform the project as described in Attachments, which are incorporated herein by this reference: Attachment - A- General Terms and Conditions Attachment - B - Contract/Project Summary Attachment - C - Special Terms and Conditions Attachment - D - Statement of Work The Grantee is a subrecipient of federal funds as identified under "Federal Funding Information" in Attachment -B. D. PERIOD OF PERFORMANCE The performance period under this contract shall commence on 02/01/2018 and terminate on 12/01/2019. No expenditures made before or after this period are eligible for reimbursement unless incorporated by written amendment into this contract. The contract may be terminated or the performance period extended pursuant to terms set forth in Attachment - A. E. COMPENSATION/ PAYMENT The total dollars provided by WDFW for this contract shall not exceed $750,000.00 minus any matching requirements identified in this contract. The Grantee shall be responsible for all project costs exceeding this amount. Only eligible reimbursement activities that are in direct support of the project deliverables identified in this contract will be reimbursed. Any additional services provided by the Grantee must have prior written approval of WDFW. Compensation for services rendered shall be payable upon receipt of properly completed invoices, which shall be submitted to the Project Manager by the Grantee not more often than monthly. The invoices shall describe the document to WDFW's satisfaction, a description of work performed, activities accomplished, or the progress of the project. The rates shall be in accordance with those herein agreed to. Payment shall be considered timely if made by WDFW within 30 days after receipt of properly completed invoices. Payment shall be sent to the address designated by the Grantee. WDFW may, in its sole discretion, terminate the contract or withhold payments claimed by the Grantee for the services rendered if the Grantee fails to satisfactorily comply with any term or conditions of this contract. F. RIGHTS AND OBLIGATIONS All rights and obligations of the parties of this contract are subject to this contract, including the Attachments, which are incorporated herein by this reference. By signing this contract the Grantee acknowledges that they have read, fully understand, and agree to be bound by all terms and conditions set forth in this contract. WDFW #18-10194 PAGE 1 OF 27 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192