BOARD OF MASON COUNTY COMMISSIONERS PROCEEDINGS
August 22, 2000
Chairperson John A. Bolender called the special meeting to order at 10:00 a.m. Commissioners Mary Jo Cady and Cynthia D. Olsen were in attendance.
B U S I N E S S
HEARING FISH & WILDLIFE CONSERVATION AREAS ORDINANCE
The Board held the public hearing to consider the adoption of the proposed revision of the Fish and Wildlife Habitat Conservation Area Ordinance.
Bob Fink, Planner, presented the staff report dated August 22, 2000 on the amendments to the Fish and Wildlife Habitat Conservation Area Ordinance. He explained that the regulations were reviewed and remanded by the Western Washington Growth Management Hearings Board on March 22, 2000. In their order they directed that the County act in response to the order no later than September 1, 2000.
The Planning Department working with consultants from Applied Environmental Services prepared a new draft dated August 15, 2000. The Planning Commission heard the proposal on August 21 and did not make a recommendation on the draft. Two changes were included; 1) Add existing and on-going agricultural activity to the list of exemptions contained in the section; 2) Amend the regulations that apply to Marine Development to address the Marine Activities.
Wayne Wright, Applied Environmental Services, introduced himself as becoming involved with the project the beginning of August.
He reviewed the proposed amendments in the 19-page document.
Pg 1 A. Purpose -- Added language at the end of paragraph 1 regarding having an approved Habitat Management Plan (HMP) as to what is on the property and what is required to be safe to meet Growth Management Act (GMA) and Endangered Species Act (ESA).
Pg 1 - B. Fish & Wildlife Habitat Conservation Areas (FWHCA) Categories It was noted this was the biggest change in the document. Originally there were two components to the ordinance. There was an aquatic management area and terrestrial management area. Stream buffers were fairly well defined and Fish and Wildlife buffers that were nebulously defined. They were trying to address the fact that riparian areas are not just for streams or fish. They are where most of the animals do live or corridors where they migrate to and from places. It was decided to develop one term of "Fish & Wildlife Habitat Conservation Areas."
They struck the word aquatic management and inserted the term Fish and Wildlife Habitat Conservation Areas throughout the document.
They identified the Washington Department of Fish & Wildlifes Priority Habitat and Species (PHS) Program database in terms of what wildlife species the County would be regulating in the ordinance. This is listed on Table 1. This is the most comprehensive database available. The other database available is the Fish & Wildlife and US Department of Fish & Wildlife. This list is more inclusive and much larger. It includes local species that the state feels are of concern.
Pg 2 8 (second sentence) Add "Those" species known . . ."
It was noted that the title on Table 1 should have a period after " . . . . May occur in Mason County." The rest of the line should be stricken.
Pg 2 8 (first sentence) After the word "sensitive," add "monitor and candidate species . . .."
Pg 3 - Table 2 was added for those species that are on the priority habitat and species list that are not protected by some listing in the federal or state government. These are animals that State Department of Fish & Wildlife has in the PHS program database, but have not received specific listing status.
They believed it was important that the intent be put on the record. These are the species where in the back of the document there is a process where any individual in Mason County can propose to get a species listed. It is not intended for the species to be part of the regulations at this time.
There was discussion on rewording Table 2 to something similar to "These are on the PHS list as existing in Mason County but are not listed and not governed by this ordinance."
The old Table 1 was deleted because it was incorporated previously.
Pg 3 - D 1 a Deleted the reference to Table 2
Pg 4 D1a Noted that the negotiations with the Tribes and petitioners discussed where the buffers would be measured. They added at the end of this section where they begin measuring the buffers regardless of the width of the buffer. The channel migration zone (CMZ) is the current thought process where they start managing river corridors and buffers. It came out very heavily in the GMA remand and this is the common knowledge for science on how to manage the riverine and riparian areas.
The Board discussed that the Skokomish Valley has a CMZ near the river where it visibly goes back and forth in the existing streambed. There is also a CMZ historical, which goes back to the walls of the valley. It was questioned if the County uses CMZ if they can add terminology, "as used and documented within the prior five years."
Mr. Wright commented he has given this some thought. He noted there are documents adopted for the Skokomish River Valley such as the Flood Hazard Management Plan. What some counties do on specific river systems that are problematic with respect to their ordinance is they add a specific section on that particular river. The fact that the Skokomish River has flood protection in it and that the channel is actually managed for the most part. The question is if the CMZ is active or not. He was not certain the answer for the Skokomish River. It is not the only regulations that apply to water, animal and land. There is a lot of overlay of regulations.
Under the 4 D rule, which came out July 10, 2000, they specifically identified the CMZ as that point by which buffers are set.
Pg 4 - 2 a Beginning with this section and then throughout the document they changed "Director" to "Mason County." The original language had "affected tribes" in the document and the Planning Commission suggested listing the specific names of the tribes in Mason County "Skokomish Tribe and/or the Squaxin Island Tribe." It was reiterated that a habitat management plan is required to reduce buffer. There are two ways to reduce a buffer; 1) buffer averaging with 25% reduction (no public hearing required); or 2) if the applicant does not buffer average or maintain the full measure of the buffer area a public hearing is required.
Pg 4 - Struck the sequence for buffer reductions because it is not being considered.
Pg 4 3 Provision for Increasing Buffer The science used was not just to establish a number for a buffer width. It was the science to set information like culverts and passing 100-year storms. It has combined fish and wildlife habitat as one like no other ordinance has done. The science was not just in the minimum number of 150 or 175 but the entire sum total of the ordinance. The reason the number was reduced was through public comment. They acknowledge through science that there are cases that are outside the 150 buffer that will require added protection.
Pg 5 3 d - If the County measures from CMZ, which is proposed, this section could be struck out.
Mr. Wright believed that the buffers when managed properly in the context of the ordinance would achieve GMA goals, especially with the tribes and states consulting and looking over.
How are buffers set in an area where the County has no jurisdiction. If it is under water it is DNR jurisdiction and requires a hydraulic project approval. The County can set policy and guidance and state they dont tolerate any impact unless some other jurisdiction permits it.
Pg 10 1b The County is stating clearing of vegetation (terrestrial, fresh water, or marine vegetation) is a prohibited activity. The Planning Commission is convinced that part of the reason of the salmon downfall is the lack and loss of impact to these areas. They didnt want anyone dragging nets or anchors over these areas.
Pg 14 - g References to "development" was changed to "activities." The term "mitigate" was changed to "avoid impacts to eelgrass and . . ." Through this ordinance if someone is proposing to do something that mucks around in these sensitive areas with any activity, the County is requesting the applicant to file a habitat management plan. This shows that the applicant is not going to tear up one of the fish and wildlife habitat conservation areas.
Pg 6 Table 3 The Fish & Wildlife Habitat Conservation Area Development Standards went back to minimum recommended buffers. In the See Section 17.01.110 G. 1,2,3 and K this was changed to 17.01.110.G.1.abc and G.2.g and J.
If the County was to impose buffers the question is how it would be enforced.
Pg 7 - Table 4 - A section was added to the "NOTE" at the bottom of the page. They strongly recognize adverse water quality impacts and their effects on fish and wildlife.
Pg 8 4 They discussed the request for re-assessment of the property if the possible devaluation of the property affected by a permit decision by the County. The devaluation occurred at the time the ordinance is adopted and not at the permitted request.
Bob Fink, Planner, explained that the document was referencing RCW 84.40.030 and RCW 84.41.030. The citation refers to the second reference. It states normally the Assessor sets up a revaluation schedule on a continuing basis. There is an exception that each Assessor May disregard any program of revaluation if requested by the property and change is appropriate the valuation of real property upon receipt of a notice of decision under RCW 36.70b.
There is an annual requirement that the County transmit to the Assessor on July 31 all land use regulations from the previous year.
The Board recessed from 11:25 a.m. - 11:35 a.m.
Pg 9 F3 - Add ". . .including existing and ongoing agriculture." at the end of the sentence.
Pg 9 F5 There was discussion if there were times it would be unnecessary for replacement of a danger tree and to place the downed danger tree within the buffer as habitat.
Mr. Wright responded there would be times it would be unnecessary for replacement.
Pg 10 G - In the first paragraph "aquatic management" is deleted and "Fish & Wildlife Habitat Conservation" is added. A section is added in the paragraph when a major new development is proposed with 1/4 mile of a listed species on location (den or nest site), as identified through the WDFW database; a preliminary review by a qualified fish and wildlife professional shall be provided to the county which shall determine if a FWHCA or its buffer is within the area of the development.
Pg 10 G - The Board requested that the last sentence read " . . . WDFW Priority Habitats and Species Program (PHS) database . . ." so it is clear which database is being used.
Pg 10 1 Those activities which need a Habitat Management Plan (HMP) were listed.
Pg 10 1c Major New Development Changes were made and referred back to subsection G. Added " . . or as approved through a variance or reasonable use exception . . ." They added another shellfish feature and stormwater design.
Pg 11 1 i Changed title to read "Road/Street Expansion & Construction."
Pg 13 b ii added on the last sentence ". . . (fences or enhanced native planting). . ."
Pg 13 b iv & c iv inserted "If development is proposed within a FWHCA or its buffer, a HMP is required."
Pg 16 I 2 a Deleted the "Aquatic Management Areas: The boundary for aquatic management areas" and added "The FWHCA boundary for streams . . . or channel migration zone (CMZ)."
Pg 16 I 2 b Deleted "Terrestrial Management Areas: The boundary of terrestrial management areas" and added "The FWHCA boundary for marine shorelines and lakes greater than 20 acres shall be the OHWM.
Pg 16 I 2 c Added "The boundary of all other FWHCAs . . ." It was also noted to be specific with the "affected tribes" by adding the names of Squaxin and Skokomish.
Pg 17 J The first sentence of this section was deleted as it was moved to another area of the document. They added the specific habitat management plan requirement for bald eagles. In lieu of the HMP, for eagles, there is a specific plan process and format.
The Board questioned if there is some language, which allows that when something comes off the endangered list the County no longer, has to follow this list.
It was noted this could be addressed annually when the regulations list is reviewed and there is new information such as a change in the status of a species, Table 1 could be changed.
Pg 18 2 b They had tied the identification of the species through the PHS program and it was dropped because there could be some species there is evidence that is different than the state list. It was added " . . listed in this ordinance;. . ." and deleted "identified within the Priority Habitat and Species Program as defined in this ordinance which includes species and habitats of local importance."
Pg 19 Added the definition of a Qualified Fish and Wildlife Professional. Also will add the definition through the federal register of the Channel Migration Zone.
The Board acknowledged the letter from Washington State Community, Trade and Economic Development (DCTED) dated August 22, 2000.
Bill Quigley expressed that State Climatologist George Taylor from the University of Oregon has indicated that there is not real science on habitat for fish. He voiced his concern about private property rights. He felt the private property rights need to be addressed and referred to RCW 36.70A.370.
The Board responded that the Attorney Generals opinion is on the record and has been considered in application of the ordinance. The written findings will be developed at the time the ordinance is adopted.
Bill Wells voiced concern about reasonable exceptions. There is the regulation, but then there will be exceptions allowed. He questioned if it will be an economic issue that if an applicant has money or knows the right people they will be allowed an exception.
The Board questioned if it would be better if there were no exceptions or a blanket ordinance or suggestions on how it might be improved.
Mr. Wells responded he did not think Mason County is ready for this. He stated the public is going to ask what it will cost for complying with the ordinance. He was also concerned about what the professionals can charge; what kind of fees the public will be looking at.
The Board interjected that the County doesnt have the authority to regulate commerce or set prices.
Mr. Wells asked if there is anything that protects the buyer of a property.
The Board responded there is a process that requires professionals to comply with regulations.
The Board noted that one of the contradictions in the Growth Management Act is one of the goals is to encourage and protect affordable housing. Yet, every regulation adds to the cost of housing.
Mr. Wells asked if the database from Fish & Wildlife is on line so the public can find out about property.
Bob Fink, Planner, stated the property owners can directly contact Fish & Wildlife and ask about their property and they will be told.
He questioned if the public wanted to represent themselves as an attorney if that could occur.
The Board responded, yes, to the level of their expertise as long as they meet the standards.
A question was raised if the Tribe is representing themselves as an independent nation why an applicant would need to gain approval from an independent nation.
The Board replied it is a complicated question, but the tribe is represented in the ordinance as a co-manager of the resource and not as an independent nation.
Richard Guest, Attorney for Skokomish Indian Tribe, noted they have not had enough opportunity to review the revisions for the ordinance. From the comments from Mr. Wright there will be a different hearing and they welcome the opportunity to have his expertise brought to the attention of the Western Washington Growth Management Hearings Board (WWGMHB). The Tribe has allocated a number of resources to this process. The Tribe is in the process of adopting its own comprehensive land use ordinance that has similar protections that were argued before the Board. The current frequent flooded ordinance has been found invalid and that area does need to be separately addressed and the Skokomish River addressed after this process.
Warren Dawes concurred with Mr. Guest that it would be a different hearing at the WWGMHB. They have not had a chance to review all of the aspects of the ordinance. He commented it has been very helpful to have the consultants to provide the information to this forum. It can only help to have these things explained. The buffers are minimum standards. It is necessary to bring best available science into the process when the minimum buffers are departed from. He appreciated the comments about the co-managers of the fisheries resource being the State and Tribes. He expressed he was sorry that the letter submitted by the Department of Fish & Wildlife was on an earlier draft. If the County has the time, he believed they would be happy to reissue it against the August 15 draft, which might be helpful. When looking to reduce a buffer, the County should go to the best available science to find the basis for that. It would be prudent to do what Fish & Wildlife is recommending for consultation and concurrence with the best available science managers which would give greater power to the decision that is being made.
Wes Johnson, Skokomish Valley, concurred with Mr. Guest and Mr. Dawes that the County will be well represented at the next WWGMHB hearing. He questioned about the paragraph at the top of page 4 of the document. The fact that this will be considered separately in an amendment. There is a request that when the amendment is done that it begins by stating what can be done in the Skokomish Valley. A positive statement would be beneficial on some general principles.
The Board questioned if Mr. Johnson, in his research, has been able to find a specific scientific basis to better justify the original position as opposed to what is being proposed.
There was discussion that the setbacks are variable. There is a provision in the ordinance, which allows them to be shrunk or expanded. There is a threshold and the applicant can go below it or above it, depending upon the particular conditions of the site. There isnt a uniform buffer that applies to every site. There is a variable buffer. If someone wants to identify the unique characteristics of the particular parcel of property they could potentially have a smaller buffer or they might have a larger buffer.
The process is intended to allow people to take into consideration the unique types of uses and characteristics on the site. The county is affording a reasonable use provision. If an applicant chose to start agriculture in an area that it didnt occur previously. It might be possible to do that agriculture according to best management practices (BMP). Many farmers have developed BMPs through the Conservation District. There is a procedure that could change the buffers.
The Board questioned how the ordinance could be adjusted to make it more user friendly.
Mr. Johnson stated, if the setbacks cannot be adjusted, there needs to be compensation or some incentive to the property owner for giving up the use of his property. He referred to page 9. F5 refers to removal of danger trees. It seems to restrict a property owner from taking a danger tree down and cutting it up for firewood.
He mentioned that on page 11 f Gravel Mining Notes gravel mining is discouraged. The residents of Skokomish Valley state if the gravel was removed from the river there would be a place for the river to flow.
Marv Faughender, Port of Shelton, after publication of the August 3 draft amendment to Fish & Wildlife Amendments was out, he had a call from the EDC Director that the Shelton Pocket gopher was on the list. The Shelton pocket gopher existed in three prairies. It became a factor back when all three prairies were farmed. This gopher developed and formed a sub species of pocket gophers. In the 1940s things began to change in the Bambi Farm and developed into other things. McEwan Prairie was purchased by Simpson Timber Company and planted into timber and became a timber growing area. Johns Prairie was developed into a more intensive industrial area having to do with wood products. The navy and air force bought and condemned most of Scotch Prairie which is where the airport is located. During that time, it was presumed that the Shelton pocket gopher thrived and did well. In 1955 it was identified as a separate species. In 1991 the Port of Shelton was asked to look at it to see if it was doing well. They found it has a habitat of grasslands, eats native grasses. It doesnt do well with second growth timber and kinnikinnick and Oregon grape or scotch bloom. They found there were a few left in McEwan Prairie. They were living in the county right-of-way in the ditches that were mowed by the mowers. In Johns Prairie there was a small group under the power lines where you turn in to MCRA and another small group that was back by the sawmills where there was three tracks that were separated by about 50. They lived in between those tracks. They were very small populations and definitely threatened. At that time they developed a plan and found 100 pairs or more. They have a plan, which is simple, as long as they keep large parts of the ground in grass production. A large part is sacred with the airport with its runways and safety zones. The other parts would be maintained as habitat. In 1991 they were mowing about 400 acres to keep the scotch bloom from taking over They have increased that to almost 600 acres they are mowing. It is the habitat of the Shelton Pocket Gopher.
Mr. Faughender urged the Board to move forward with the document.
Alice Wells asked if a property owner wants to develop their property and they have an HMP prepared and then an animal moves onto the property is it necessary to have another HMP done.
The Board stated an HMP is required when an applicant is proposing new development. As long as they do not want to develop any further an HMP is not necessary. If a neighbor were concerned about an eagle that moves in it would be an issue between Fish & Wildlife, the State and the individual.
Wes Johnson questioned if any of the setbacks would be considered a case for a taking.
The Board responded this is a legal question that could be presented to the Prosecutor for a written opinion.
Bill Wells stated most of the discussion has been centered on wetlands, streams, lakes, and waterbodies. They are dealing with terrestrial animals that do move around and are not necessarily associated in the publics mind with water. He asked if the terrestrial animals are protected by a buffer.
Wayne Wright interjected that the Habitat Management Plan (HMP) is a document that tells the owner and Mason County: 1) Where on a site any listed species exist; and 2) How the owner will live with the animals. It is fairly clear to determine where the animal exists. The buffer will depend on the species, the lay of the land, and what is being proposed to be done. The owner would consult with the agencies and Tribes to make sure there is quality information available. It was noted that pages 17 & 18 of the document address HMPs.
The Board noted they received two letters from state agencies, which they would like to fully review.
Cmmr. Cady/Olsen moved and seconded to continue the hearing to August 29 at 11:00 a.m. in Commission Chambers. Motion carried unanimously. B-aye; C-aye; O-aye.
The meeting adjourned at 1:21 p.m. due to no further business.
Rebecca S. Rogers
Clerk of the Board
BOARD OF COUNTY COMMISSIONERS
MASON COUNTY, WASHINGTON
John A. Bolender, Chairperson
Mary Jo Cady, Commissioner
Cynthia D. Olsen, Commissioner