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Home My WebLink Aboutord2023-040�GoM Co P °y 3� A tLR`SH1NG-to Whatcom County Agenda Bill Master Report File Number: AB2023-416 File ID: AB2023-416 Version: File Created: 06/14/2023 Entered by: Department: Council Office File Type: Assigned to: Council Agenda Date: 07/11/2023 e COUNTY COURTHOUSE 311 Grand Avenue, Ste #105 Bellingham, WA 98225-4038 (360)778-5010 Status: Adopted as Amended Ordinance Requiring a Public Hearing Primary Contact Email: DBrown@co.whatcom.wa.us TITLE FOR AGENDA ITEM: Final Action: 07/11/2023 Enactment #: ORD 2023-040 Ordinance amending Whatcom County Code Section 11.20.025, Flotation Devices on the South Fork of the Nooksack River, to better protect ESA -listed Chinook salmon SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: This ordinance amends Whatcom County Code 11.20.025, Flotation Devices on the South Fork of the Nooksack River, to better protect ESA -listed Chinook salmon by restricting the use of specific flotation devices on the South Fork between the dates of June I and October 31, except under certain circumstances. The provisions of this ordinance will be in effect until the number of the South Fork Nooksack Early Chinook natural -origin spawners reach 50% of the recovery goal of 9,900. HISTORY OF LEGISLATIVE FILE Date: Acting Body: Action: Sent To: 06/20/2023 Council SUBSTITUTE INTRODUCED Council FOR PUBLIC HEARING Aye: 4 Buchanan, Donovan, Frazey, and Galloway Nay: 3 Byrd, Elenbaas, and Kershner 07/11/2023 Council ADOPTED AS AMENDED Aye: 4 Buchanan, Donovan, Frazey, and Galloway Nay: 2 Byrd, and Elenbaas Absent: 1 Kershner Whatcom County Page 1 Printed on 711212023 Agenda Bill Master Report Continued (AB2023-416) Attachments: Substitute Ordinance Introduced 6.20.2023, South Fork Presentation, 2022 SEPA Determination, Joint Letter from Fish and Wildlife, Lummi Nation and Nooksack Indian Tribe, Letter from WRIA 1 Environmental Caucus, Presentation for 7.11.2023, Public Hearing Sign In Sheet Whatcom County Page 2 Printed on 711212023 1 PROPOSED BY: Galloway 2 INTRODUCTION DATE: 6/20/2023 3 ORDINANCE NO. 2023 - 040 4 5 AMENDING WHATCOM COUNTY CODE SECTION 11.20.025 (FLOTATION DEVICES 6 ON THE SOUTH FORK OF THE NOOKSACK RIVER) TO BETTER PROTECT ESA -LISTED 7 CHINOOK SALMON 8 9 WHEREAS, in 1999, Puget Sound Chinook were listed as "threatened" under the 10 federal Endangered Species Act, and recovery of both North Fork/Middle Fork Early Chinook 11 and South Fork Nooksack Early Chinook is considered essential for species delisting; and 12 13 WHEREAS, the early -timed spring Chinook salmon in the South Fork of the 14 Nooksack River are particularly imperiled, and their continued existence is at risk if no 15 action is taken to increase protection; and 16 17 WHEREAS, the South Fork Nooksack is identified as an impaired waterbody on 18 Ecology's 303(d) list for high stream temperature, which is a known stressor for salmon; 19 and 20 21 WHEREAS, in summer 2021, over 2,400 returning adult Chinook died on the South 22 Fork spawning grounds before they could spawn due to a disease outbreak exacerbated by 23 low river flows, high temperatures, and a lack of adequate habitat; and 24 25 WHEREAS, this mortality event prompted Lummi Nation to declare an emergency 26 and both Lummi Nation and the Nooksack Indian Tribe to petition Governor Inslee to 27 establish a crisis team to implement solutions to avoid future mortality events and to invest 28 $25.5 million to fund critically important actions in the South Fork; and 29 30 WHEREAS, the South Fork Nooksack River has been a top priority for habitat 31 restoration, with over $10 million invested from the Salmon Recovery Funding Board, and 32 significant river restoration projects completed by Lummi Nation and the Nooksack Indian 33 Tribe over the years; 34 35 WHEREAS, upcoming restoration projects spearheaded by Lummi Nation and the 36 Nooksack Indian Tribe have received over $9.4 million from federal funds and $13.4 million 37 from state funds 38 39 WHEREAS, the number of natural -origin spawners remain critically low and far 40 below the recovery goal of at least 9,900; and 41 42 WHEREAS, the impacts of hundreds of people recreating daily in the South Fork 43 during summer months when water temperatures are high further threaten the survival of 44 South Fork Nooksack Early Chinook and the millions of dollars invested in habitat 45 restoration; and 46 47 WHEREAS, log jams are a critically important feature of healthy salmon habitats 48 and constructing log jams is a key habitat restoration strategy, yet such extensive instream 49 restoration may have safety implications for recreational river users especially during in- 50 water construction; 51 52 WHEREAS, extremely low numbers of both Nooksack early Chinook populations 53 have reduced harvest opportunity for treaty and non -treaty recreational and commercial 54 fishers when fisheries are reduced or eliminated to protect these weak populations; 55 1 WHEREAS, the 1855 Treaty of Point Elliot reserved and the 1974 Boldt Decision 2 affirmed tribal fishing rights to Lummi Nation and the Nooksack Indian Tribe; and 3 4 WHEREAS, Whatcom County shall honor and uphold tribal treaty rights by taking 5 every possible measure to protect salmon; 6 7 WHEREAS, the Whatcom County Council also recognizes the importance and 8 multiple benefits of accessible and responsible outdoor recreation, and supports increased 9 education and outreach to ensure both a thriving environment and local economy; and 10 11 WHEREAS, the Whatcom County Council acknowledges and appreciates the letter 12 dated January 19, 2023, from the Whatcom County Parks and Recreation Commission 13 regarding recreation on the South Fork of the Nooksack River, and will continue to work 14 with them on these important issues; and 15 16 WHEREAS, in 2022 the Whatcom County SEPA Official reviewed a similar proposed 17 ordinance and issued a Determination of Non -Significance on July 25, 2022 (SEP2022- 18 00068); and 19 20 WHEREAS, the intent of this ordinance addresses the same general scope and scale 21 of the proposed action considered under SEP2022-00068; and 22 23 WHEREAS, the Whatcom County SEPA Official notified Council staff on June 14, 24 2023, that no further SEPA review is required for this ordinance and the current proposal 25 may rely on the previous 2022 SEPA determination. 26 27 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that: 28 29 SECTION 1. Whatcom County Code 11.20.025 is hereby amended as presented in Exhibit 30 A. 31 32 SECTION 2. Whatcom County shall seek relevant data from Washington Department of Fish 33 Wildlife, Lummi Nation or the Nooksack Indian Tribe, and report data to the County Council 34 annually. 35 36 SECTION 3. This ordinance shall be effective until Whatcom County receives data pursuant 37 to Secti,on.2Edbove that shows the number of South Fork Nooksack Early chinook natural- 38 on ,, spa�wn?er _he repched 50% of the recovery goal of 9,900. 40 J .A 6*WN lth day of Jul2023. 41 0:0 cOUNTY �i 42 = . , WHATCOM COUNTY COUNCIL 43 ATTE -r' _W TCOM TY, ASHINGTON 44 f 45 46 ' Dana Brown -Davis, Clerk of the ouncil -y uchanan, Council Chair 47 48 WHATCOM COUNTY EXECUTIVE 49 APPROVED AS TO FORM: WHATCOM COUNTY WASHINGTON 50 51 /s/Karen Frakes approved via email on 7/10/2023/MR 52 53 Karen Frakes, Civil Deputy Prosecutor Satpal Sidhu, County Executive 54 55 (�) Approved Denied 56 g -�_—`i2 57 Date Signed: % 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 EXHIBIT A WCC 11.20.025 WATER SKIING, SWIMMING AND SKIN DIVING REGULATIONS 11.20.025 Flotation devices on the South Fork of the Nooksack River. No person shall operate a paddleboard, innertube, inflatable flotation device, foam flotation device, limb -propelled flotation device, rubber raft, canoe, or kayak, unless the use is in the exercise of federal treaty rights, on the South Fork of the Nooksack River between the dates of June 1st and October 31st. The provisions of this section shall not apply to: A. Devices engaged principally in commercial operations constituting an act of interstate or foreign commerce or bona fide scientific research; B. Use for emergency purposes when there is reasonable belief that such use is necessary to protect or preserve persons, animals or property; C. Use by law enforcement agencies to enforce the above provisions; D. Department of Natural Resources -designated and Whatcom County -designated swimming/boating areas on the South Fork of the Nooksack River. (Ord. 2020-002 (Exh. A); Ord. 2019-046 (Exh. A); Ord. 2005-089 Exh. A).