WRIA 1 Watershed Management Project PLANNING UNIT MEETING January 21, 2009

Transcription

1 WRIA 1 Watershed Management Project PLANNING UNIT MEETING January 21, 2009 MEETING SUMMARY This summary should not be construed as formal minutes approved by participants. The Decision and Action Items will be approved by participants at the next Planning Unit meeting. The following participants of the WRIA 1 Planning Unit were present: Jon Hutchings Whatcom County Public Works Steve Jilk Public Utility District No.1 Mark Hubert Private Well Owners Roger Brown Water Districts Caucus Marian Beddill Environmental Caucus Doug Allen State Caucus Mark Sandal Small Cities Caucus Clare Fogelsong City of Bellingham Henry Bierlink Agriculture Caucus Skip Richards Non-Government Water Systems Caucus The following Staff/Facilitators were present: Joshua Fleischmann Whatcom County Peter Gill Whatcom County Mary Dumas Dumas & Associates, Inc. Professor Robert (Bob) Anderson Mediator Becky Peterson Geneva Consulting Rob Kelly Planning Unit Facilitator Dick Grout Washington Department of Ecology Approve Action and Decision Items from the June 18, 2008 Planning Unit Meeting Summary Members reviewed and approved the action and decision items from the June 18, 2008 Planning Unit Meeting Summary with no changes. It was noted that there was a typo on the last page, incorrectly stating May, rather than June, for the materials distributed for the June 18 th, 2008 Planning Unit Meeting Summary. Approve Agenda for This Meeting There were 2 additional agenda items proposed for the agenda. They were an Evaluation of WMP through its Adaptive Management Program, and a status report on the North Lynden Watershed Improvement District. These additions were added and the agenda was approved by consensus. DECISION Consensus decision to approve the January 21, 2009 meeting agenda Instream Flow Pilot Negotiations Mary Dumas and Prof. Robert (Bob) Anderson presented the status of the Instream Flow Pilot Negotiations. Bob discussed his role in the negotiations. Bob reviewed the negotiation framework that was created when the process began. At that time, the facilitators looked at all the claims in the 2 basins, and his recommendation was to have small 1

2 mediated stakeholder sessions. A recent change in the process occurred with his recommendation to negotiation participants to bring in Jean Baldrich, a fisheries biologist, who has experience in negotiating instream flow settlement agreements in other regions. Bob reminded the Planning Unit of the confidentiality agreement in place so he is limited to discussing basic information. He would, however, like to hear PU concerns recognizing that discussion is governed by the scope of the confidentiality agreement. Questions and Comments A Planning Unit member noted his/her concern and question was in regards to the process. Initially, the instream flow pilot projects were limited to two small basins. At the last Planning Unit meeting, the PU was told that pilot negotiations were at an impasse, and that Jay Manning, Dept. of Ecology, told negotiators they needed a plan to move the process forward. This resulted in negotiation participants considering expanding discussions to larger basins. As the area of negotiation grows, so does the number of people that may be affected. Given this, how do the negotiators propose to keep those people informed? Bob responded that one way may be to move forward with specifics from the pilot process. If the scope of the negotiations is broadened negotiation participants will need to consider when and how to broaden the process. Bob s view is that at the point in time in which the interests of a water right may be affected, the water right holder should be brought into the process. A member noted that in the Instream Flow Negotiation update that was distributed via by Mary Dumas, it appears that groups have merged and thus the stakeholders/intervening interests have expanded. Mary distinguished between a broadening of the geographical region and a broadened scope of who should be involved. A member commented that he/she did not see how the geographical region could be broadened without broadening the size of affected parties. A member asked what the Department of Ecology s opinion is about whether substantive progress has been made since the December 31, 2008 date that had previously been identified by Jay Manning as the deadline for making progress. A member responded that Ecology s view is that there has been progress. A member asked if caucuses that are signatories to the confidentiality agreement will be able to further discuss the negotiations. Bob noted that without consent of all of signatories, individual stakeholders should not publicly speak. A member asked if the caucuses that have signed confidentiality agreement can be engaged in conversations with MOA signatories. 2

3 Bob noted that there has not been enough MOA group discussion to expand it to the next level. A member asked who the signatories are. Bob noted that the Lummi Nation, Nooksack Tribe, the Bertrand Watershed Improvement District, Whatcom County, the City of Bellingham, the Department of Ecology, and Public Utility District #1 are the ones that have been meeting to look at issues in the WID and Middle Fork. A member asked if it is fair to say that no other affected parties have been notified to date Bob responded affirmatively. A member asked if there was any idea when more information will be released about an expanded geographic scope. Bob noted that within a fairly short time the facilitators will know if there is enough traction for the proposals under discussion and whether more people will need to be involved, noting that outcomes and release of information are at the discretion of MOA signatories. A member asked if anyone can say what the next steps might be and provide a timeline. Bob noted that there is a policy meeting next week and that if there is a substantive agreement on some of the issues, then this would be brought to PU for feedback, in accordance with the negotiation procedure. A member asked for clarification if the issues discussed will involve the 2 named basins. Bob replied affirmatively A member asked if the attorneys for the stakeholders are at the meetings. Bob responded that they typically attend. A member asked if Bob will make recommendations on who the signatories should be based on his past work experience. Bob responded affirmatively. A member asked when the negotiation process began. Mary responded that the negotiations began in A member noted that because of the confidentiality agreement the Planning Unit does not have much information about the process. 3

4 Bob noted that from his perspective if negotiations fail there will be basin-wide stream adjudication. This process would take multiple years delaying resolution and costing more money, and the judge would require mediation that would look a lot like the current negotiation process. Currently, involved parties are willing to move forward in order to stay out of courts. A member noted that s/he has reviewed the ISF Action Plan and questioned why the current process is better. Bob noted that with a critical mass of water right holders supporting the settlement, it is likely that a settlement agreement could be entered without the need to go through expensive individual litigation. A member noted that people want to see potential benefits, liabilities, and other possibilities before signing on the bottom line. Thus, parties will want some sort of solid agreement before opening it up to others to view. The question is how do you know when the agreement is solid enough to allow those outside of the confidentiality agreement to see it? Bob noted that it is not too difficult, as people at the table have voiced what their goals are. A member asked if the ISF Action Plan is still relevant, as it appears to be unilaterally modified by the MOA signatories. S/he noted that there should be a discussion of whether the ISF needs adaptive management, and what that process would look like. Bob noted that the ISF action plan still exists and that the pilots are embedded within it. A member is under the impression the pilots were initially proposed to test the ISF Action Plan and judge its success. The member still sees the pilots as valuable for this purpose. Mary noted that the PU has been updated as there have been shifts in the process. This information has been compiled and is available. A member noted that s/he never took the ISF Action Plan to be a precise game plan. It says Draft- Subject to Legal Review on it. This member s caucus never conducted a legal review; otherwise the WMP probably would not have passed. The member still feels like the ISF Action Plan is a useful guide and would like it to be updated to reflect the most recent version of what changed. Mary noted that she could provide a document of what has changed between June 2008 and the present. Changes prior to that are included in the ISF Evaluation Report and the ISF Negotiation Update that was provided at the June 2008 PU meeting. A member asked if it was correct that the ISF Action Plan has the final goal of changing the minimum flow of different reaches of creeks and streams. 4

5 Becky reminded the PU that the ISF Action Plan outlines a process to review and recommend flows in all of the WRIA 1 drainages. Recommended flows would go through Dept. of Ecology public process for rule-making. A member noted that while one part of the ISF Action Plan involves State responsibilities, which would result in changes to the rule, the other part of the Plan involves addressing Treaty Reserved Rights. A member asked during the entire WRIA 1 process, how many reaches of streams has had flows modified to date. A member replied that there was zero. A member noted that in the January 6, 2009, memo to the PU from Mary, it refers to a comprehensive management approach for WRIA 1. The member asked Bob about his approach for recommendations for water rights, which is discreet, whereas Mary s phrase could implicate land use, stormwater management, etc. The member asked if this was being discussed. Bob noted that ISF and flow regime would need to be satisfied for out-of-stream uses to take place, and that while other people may view water quality or stream buffers as the main issue, in his view ISF regime and corresponding out-of-stream use is primary. The facilitator noted that Bob s original questions were: (1) what questions do PU members have, and (2) what are matters of interest to PU members? It may be important for Bob to take feedback from the group about what is important to them. A member noted that their caucus wants adequate water, suitable for the needs of the ecosystem. Another member seconded that, but expressed that the PU needs more information for the next PU meeting. Until there is something to report, or unless a decision needs to be made, there is no point in meeting about the pilot process. The PU may need to meet for something, but not for an update. This member also expressed that the PU should be notified if those involved in the ISF process plan to contact individual members of PU caucuses before they are brought into that process, and the pertinent caucuses should be identified. A member asked if individuals involved in the negotiations have legal representation. Bob responded that they do not, and only the City of Bellingham and the Lummi Nation and Nooksack Tribe have representation present. A member encouraged the inclusion of other interests liberally, as it would be a mistake to ignore them. 5

6 A member agreed that there needs to be more information available before the PU meets again. Additionally, in looking at ISF and out-of-stream needs, it seems to this member there is a need to expand the membership of the confidentiality agreement. Bob noted that as the ISF negotiation process progresses, as with every negotiation like this, there needs to be thought about how all interested parties can become involved, given that money and time for legal counsel are considerations. A member asked if there is a suggestion to the PU about how more diverse interests can be represented. The reason for the question is that s/he is unsure if this is an issue the MOA signatories are considering, or is it an issue that the PU should be thinking about because that is the purpose of the caucus system. The caucus system was set up as a way for caucuses to represent interest groups and for caucuses with large constituents to pool resources and keep people in touch and involved. A member sees the caucus structure differently, noting that the structure was set up for the purpose of developing the WMP under state statute. Representation is a big problem for small, local governments. S/he feels it is important to recognize that there is a difference between working through a watershed management plan and dealing with substantive water rights issues, where issues are specific and varied. The member feels that this may be the point to look at a different structure that provides a process for any interested individual person to come to the table. A member asked which caucus representatives were absent from this meeting. The facilitator noted that the Fishers, Diking/Drainage, Land Development, Federal Government, Port of Bellingham, and Forestry caucuses were missing. Evaluation of WMP through its Adaptive Management Program Skip Richards, Non-Government Water System (NGWS) Caucus Representative, introduced the discussion regarding the WMP actions and adaptive management process. He noted that since the passage of the Detailed Implementation Plan (DIP), a couple of things have occurred. As a part of Whatcom County s County Water Resource Integration Program (CWRIP), the County took on from the DIP and failed to perform. Skip recently realized that the PU has been remiss in not focusing on that, according to what the PU already agreed to in the 2005 WMP. Skip asked if the PU and Joint Board have failed to comply with Adaptive Management of the 2005 WMP, specifically in the March 2000 Scope of Work sections 2.71 and He expressed that Whatcom County made unilateral decision about how to prioritize with respect to water resources and budget issues, and it seems that we are ignoring adaptive management and the Structure and Function Document that calls for decisions to be made in parallel by the Joint Board and the Planning Unit. Skip also noted that the County as the lead agency and the PU as a whole has a contract with Ecology to perform certain functions under the DIP to receive Phase IV money. Skip asked if failure of group to perform functions under the DIP jeopardizes availability of any future funds. 6

7 Other comments of the NGWS caucus presented by Skip were in regards to the revisions made to the WRIA 1 Watershed Project website section that discusses WRIA-wide programs. One of the items listed as progress on Plan Implementation is the CWRIP. The CWRIP did not originate with, nor is it a work product of, the PU and its association with the Plan should be removed. Skip stated that the gist of his comments is that there are transparency issues with the process, and that the process could erode if not addressed. Questions and Comments A member noted that the County cannot carry out the principal work of the DIP until it comes back to the PU to communicate accurately how its overall set of priorities coincides with the priorities of the DIP. S/he stated that the County s intent with the CWRIP was to use that process. Priorities in the DIP are high priorities in the CWRIP, and they are being carried out. Nothing in CWRIP disagrees with the DIP. A member noted that he disagreed, and that his opinion was that many of the DIP priorities are low on the CWRIP priority list, and that it is a violation of due process for the County to act independent of the WRIA 1 process. He challenged other PU members to look at the WMP, DIP, and CWIRP documents and ask themselves if the PU is doing what they agreed to do, and what does this mean for moving forward. A member asked if the internal priorities of any MOA signatory organization should be on the table for the PU to discuss. A member responded s/he does not feel that way, but that promises have been broken. An example stated was that there has not been a meeting about governance funding for WRIA, and that there is now half-a-million dollars being spent on a comp plan update to plan for growth when there isn t enough water to service the people that are already here. A member asked if the PU feels OK that the lead entity decided what their priorities are after they had already reached an agreement, or do they not care. A member felt that the key question is, what effort is being put forth lead to implementation. A member stated that the community was led to believe that the PU was the process for developing a long range watershed management plan for the community. S/he feels the CWRIP undermines the DIP. S/he wants to know the County s response is to the community for the process if the PU is not it. If the PU is the process, then what is the County s plan to demonstrate the commitment? A member noted that WRIA 1 Watershed Planning is in Phase IV Implementation, there is a DIP, and a process of implementing the ISF negotiations. It is only the second year of Phase IV funding so there is still time to implement actions in the plans. A member noted that from a manager standpoint, there must be a balance between process and implementation. The PU has approved a DIP, and those items are within County work plans 7

8 A member noted that the NGWS caucus representative has cited locations and dates in the DIP, and that by using DIP as a guide it would be possible to look at the things that have been committed to, define what the priority is, and to methodically go down the list. The NGWS will provide a memo outlining their concerns, and that this may be a discussion item for a future meeting. A member noted that all PU members should review the DIP along with the memorandum that the NGWS caucus will be preparing and distributing, which can be discussed at a future meeting. North Lynden Watershed Improvement District Henry Bierlink provided the status of the North Lynden WID. He noted that the district is organized just as the Bertrand WID is, but that the focus is different than in Bertrand. The North Lynden WID is more concerned with high flows, storms, other winter phenomena, and roadside ditches. Both WIDs are similar in that they work and communicate with Canada. Also, working with the City of Lynden is a priority. Utah State University Work Products Jon Hutchings and Peter Gill provided the status of USU work products. Although a DSS install that is reviewable has not yet been received, other work products have been and are being reviewed. The USU contract has not been renewed, and will not be renewed without discussion with the Joint Board. It looks like an operable Decision Support System with the original components will be delivered, but as the contract administrator Whatcom County is unwilling to engage USU in a contract without Joint Board consideration of other options. Questions and Comments A member asked how robust, stable, and calibrated the model was. Peter Gill replied that it is a complex piece of software, where small tweaks in the code could have a ripple effect on the output. He also noted that nobody has used the model enough to verify the quality of the data. A member noted that it was calibrated to a dataset and they were not sure how other data sets would work. S/he questioned if there had been discussion about hiring someone to work on the data sets. WRIA 1 Website Peter Gill introduced and reviewed enhancements to the new WRIA 1 Watershed Project website. Peter showed the PU the major pages, describing the types of information that can be found there. 8

9 Some of the highlights that he pointed out include the featured resource, the interactive monitoring maps, plan implementation, and the resource library. Questions and Comments A member noted that a reference to Whatcom County s Comprehensive Water Resource Integration Project should be removed from the Plan Implementation page. Peter replied that that it will be removed. A member asked if it would be possible to allow other organizations involved with this process to have a web page on the WRIA site. Peter responded that links to organizations pages is possible, and that something different than a link was a topic that could be discussed. Environmental Caucus Memo Marian Beddil, Environmental Caucus Representative, distributed a memo from the Environmental Caucus, and she read the following portions of it: Since the Planning Unit has no funding source and is thus no longer actively involved in real planning or other water related decisions for the WRIA 1 watershed, nor is it actively engaging in other water-related decision-making, it has become impossible for the Environmental Caucus to involve the environmental community in the manner that we are required to, under the agreements we made with them. We expect this is true for most of the other caucuses as well, which effectively makes the Planning Unit an empty shell with questionable legitimacy. There is no recent indication that the initiating governments now intend to provide the support necessary for the non-governmental caucuses to take the active role the HB2514, our enabling legislation, required in this process, and that many of us envisioned years ago. We suspect that those same governments may nevertheless use the existence of a Planning Unit either to increase opportunities for their own grant funding chances, or worse, to put off hard decisions, ostensibly to allow the WRIA 1 process to work. The few of us left actively engaged in the Environmental Caucus are no longer willing to give the WRIA-1 Planning Process whatever legitimacy our name on the roster, until now associated with the process, may imply. We thus request that the minutes, the website, and the formal documents reflect that as of today, an Environmental Caucus of the WRIA-1 program no longer exists. She then delivered a copy of her memo to the facilitator. The facilitator noted that there may be procedural issues that the PU may wish to address but that there was not time to address them at this meeting, as this issue was not on the agenda. 9

10 Questions and Comments A member noted that s/he predicted something like a caucus withdrawing from the process would happen. The member hopes that the Environmental Caucus can provide details of what it will take for them to become involved again. Next Planning Unit Meeting The facilitator asked the PU if there were any items for the agenda for the next meeting, and when would they like to meet. Questions and Comments A member would like two items on the agenda for the next meeting. One item is to see what is needed to resuscitate the process and respect the agreements that have been made, and to decide whether or not they were binding agreements. The second agenda item is to discuss procedures for when a caucus decides to leave the Planning Unit, or what happens when they stop showing up. A member asked if funding for meetings can be carried over from one year to the next. Becky responded, yes, and that there is funding for 3 more meetings this year A member noted that they wouldn t like to meet until there is something to report about the ISF Pilot process, but that too much time cannot pass without addressing the issues that have just been raised. This member would like to meet in March, at the latest. After some discussion, it was decided that the meeting would be held no later than June, preferably sooner. Decision and Action Items from the January 21, 2009 Planning Unit Meeting DECISIONS Consensus decision to approve the January 21, 2009 meeting agenda. Consensus decision to approve the June 18, 2008 meeting summary. Materials Distributed at the January 21, 2009 Planning Unit Meeting - January 21, 2009 Planning Unit Meeting Agenda (distributed via ) - June 18, 2008 Planning Unit Meeting Summary (distributed via ) - Instream Flow Pilot Negotiations update memo (distributed via ) - Statement of the Environmental Caucus of the WRIA 1 program 10