The Board of Island County Commissioners met in Special Session October 11, 1999, beginning at 8:00 a.m., in the Island County Courthouse Annex, Hearing Room, Coupeville, Wa. Commissions present included: Mike Shelton, Chairman, Wm. L. McDowell, Member, and William F. Thorn, Member.

The Chairman called the Special Session for the purpose of meeting in Executive Session with special legal counsel to discuss pending and/or potential litigation, as allowed under R.C.W. 42.30.110 (1) (i). The executive session lasted until 9:30 a.m. and no announcement was made at the time the Board met in Regular Session.

ATTEST: _______________________

Margaret Rosenkranz, Clerk of the Board

The Board of Island County Commissioners (including Diking Improvement District #4) met in Regular Session October 11, 1999, beginning at 9:30 a.m., in the Island County Courthouse Annex, Hearing Room, Coupeville, Wa., with Mike Shelton, Chairman, Wm. L. McDowell, Member, and Wm. F. Thorn, Member, present. By unanimous motion, the Board approved minutes from September 13 and 20, 1999 Regular Sessions, as well as September 20, 1999 September 24, 1999 Special Sessions.

The following vouchers/warrants were approved for payment by unanimous motion of the Board, as well as the approval of the September payroll:

Voucher (War.) #59496-59755………………………………………$534,470.07.

Certificate of Distinguished Performance to Linda Lee Martens as 1999 Outstanding Supervisor Northwest Washington Workforce Development Council.

On presentation by Dick Toft, Human Resource Director, the Board by unanimous motion, approved Personnel Action Authorization #106/99, Juvenile Court Services Director, Position

#1400.00 Replacement, with an effective PAA date of 11/12/99.

Charles S. Schufreider, Camano Island, serving as Island County’s Census 2000 Coordinator, submitted a written status report [GMA record doc. #4925] with regard to activities to date on the 2000 census. He attended training in Portland, Oregon, put on by the Department of Commerce, Census Bureau, on what Washington, Oregon and Idaho are doing to make sure everyone is counted in the 2000 census. Important to note that Island County experienced a 2.2% undercount in the last census. Each person counted represents an estimated $700 back to the State and local jurisdiction; 2.2% is almost 1400 people representing nearly one million dollars each year not coming back to the State and Island County. He has been working to get people together and form a Complete Count Committee (CCC), to help encourage people to fill out questionnaires which will arrive at the end of March or early April. Forming a CCC in Island County is complicated by the fact that he has to deal with two Local Census Operation Centers, one for Whidbey from Mt. Vernon, and for Camano, from Everett. Individuals to serve on the CCC will be recruited from government, business, church groups, social service agencies, schools, medial, service and community groups with the County. A National media campaign is planned for early next year. There are twelve prepared press releases to be used locally stressing the importance of Census 2000, along with Census 2000 posters designed to increase Census 2000 awareness. Questionnaire assistance centers will be established to help residents complete census questionnaires, with potential locations such as senior centers, food banks, businesses, churches, etc. His thought is that there should be two CCCs established in Island County: one for Camano, another for Whidbey. On Whidbey he needs to recruit a coordinator to assist. In 1990, 61% of the people nationally returned questionnaires leaving 39% that had to be revisited at their home by census enumerators. With the Census 2000 there will be a number of jobs open for six to eight weeks that pay between $10-13/hour.

Jane Koetje, Public Defenders Department, presented for approval of the Board, Amendment and Extension of Contract for provision of public defense legal services between Island County and Craig Platt, Platt & Associates, RM-BOICC-99-0074 for a two year period. The only changes to the in-place contract are:

• Deletion of Paragraph #8, Exclusivity effective 1/1/2000
• Modify Paragraph #9, Conflict of Interest, adds language to indicate that any conflicts that result as a private non-public defense representation will be reimbursed to Island County
• Payment section #12 -- different only in the amount shown, that being $313,026.00 during calendar year 2000.

Commissioner Thorn expressed some problem with the process extending the contract rather than having gone out for bid. He had no reason to think there is a problem or that anything other than a superb job had been done, rather it is the process involved, bothering him the contract has been in place nine years. Concern is that public perception is one that it is a closed processed.

Chairman Shelton commented that this particular contract did undergo RFT two years’ ago so in the overall term of the contract it has not been automatically renewed.

Commissioner McDowell moved approval of Amendment and Extension of Contract for provision of public defense legal services between Island County and Craig Platt, Platt & Associates, RM-BOICC-99-0074. Motion was seconded by Commissioner Shelton and carried by majority vote; Commissioner Thorn voted in opposition for the reasons so stated.

The Board, by unanimous motion, approved Guardian Ad-Litem Grant Agreement, Contract #SOO-31320-014 [#RM-BOICC-99-0077], between Island County and State of Washington Community, Trade & Economic Development Office of Crime Victims Advocacy, Washington State CASA/GAL Program, a two-year $10,000 per year for Guardian Ad-Litem Services, as presented by Mrs. Koetje.

Elizabeth McKay, Administrator, Juvenile Court Services, presented for approval and signature, Interlocal Agreement, #RM-JUV-99-0067, with the State Department of Social and Health Services related funding for BECCA services, i.e. at-risk youth, child-in-need-of-services, and truancy petitions. Maximum amount to be received is $69,804.76, for the period July 1, 1999 through June 30, 2001. As Mrs. McKay noted, this amount is a reduction from past amounts.

Deputy Prosecuting Attorney, on the Contract Review Form, commented his approval conditioned upon handwriting in and initialing bottom of Page 1: "The County does not consider this full reimbursement required by State law".

The Board, by unanimous motion, approved and signed, and initialed, Interlocal Agreement, #RM-JUV-99-0067, with the State Department of Social and Health Services, as presented.

Mrs. McKay presented for approval and signature, Interagency Agreement between State of Washington, Department of DSHS and Island County, #RM-JUV-99-0071, for provision of juvenile rehabilitation administration services for the period of 7/1/99 through 6/30/2000 for:

By unanimous motion, the Board approved and signed Interagency Agreement between State of Washington, Department of DSHS and Island County, #RM-JUV-99-0071, for provision of juvenile rehabilitation administration services for the period of July 1, 1999 through June 30, 2000.

A Public Hearing was held, as advertised and scheduled at 10:20 a.m., on Ordinance #C-113-99 (#CD-02-99) Amending Growth Management Act Development Regulations Regarding Lighting, amending ICC 17.03.180.R dealing with signs and lighting.

Staff: Larry Kwarsick, Public Works/Community Development Director

Public: Jane Koetje, Lagoon Point

Larry Kwarsick explained that during the process of reaching a settlement agreement with the Citizens Growth Management Coalition involving an appeal of the Non Residential Use Standards in a variety of Rural Zones, staff proposed, and the Board adopted, Ordinance #C-63-99 amending various Non Residential standards, and inadvertently deleted in that action an existing code provision dealing with lighting standards for other uses than Non Residential uses. He confirmed the limited intent of the proposed Ordinance was only to reinsert the existing language back into the ordinance to correct the error at 17.03.180R subparagraph 6, specifically:

"Lighting for Security in the R and RR zone for uses other than Non-Residential uses which are covered by subsection 5 above: Lighting fixtures shall be designed to direct light downward and avoid spill over onto abutting properties.".

The Board in the future will be holding a hearing on the recommendations of the Planning Commission dealing with a much more comprehensive ordinance with regard to signs and lighting [Ordinance #C-124-99, PLG-030-99 set for hearing on December 6, 1999 at 1:30 p.m.]. Again, today’s hearing as Mr. Kwarsick noted was only for the purpose of correcting an inadvertent error, and he recommended this action be taken to correct the mistake that was made.

Public Input. No one in the audience spoke either for or against proposal.

Commissioner McDowell reviewed the recommendation of the Planning Commission the Board received on October 4, 1999, to be heard at public hearing on December 6^th, with today’s proposed error correction on this particular section. The direction of the Planning Commission with regard to the issue of light shinning beyond the boundary, uses the words "direct rays of light do not spill over…." rather than "direct light downward and avoid spill over…" . He therefore proposed that 17.03.180 R, Subsection 6 read as follows:

"Lighting for Security in the R and RR zone for uses other than Non-Residential uses

which are covered by subsection 5 above: Lighting fixtures shall be designed so that direct rays of lighting do not spill over onto the abutting properties".

Mr. Kwarsick stated that the intent of the proposal was to reinsert basically verbatim what had been inadvertently deleted. He thought that the clarification proposed by Commissioner McDowell would be perfectly fine. Commissioners Shelton and Thorn agreed with the proposed change.

No comments were made by members of the public, either for or against the proposed modification.

By unanimous motion, the Board adopted Ordinance #C-113-99 (#CD-02-99) In the Matter of Amending the Island County Growth Management Act Development Regulations Regarding Lighting, as presented and amended, with 17.03.180 R, Subsection 6 to read:

"Lighting for Security in the R and RR zone for uses other than Non-Residential uses

which are covered by subsection 5 above: Lighting fixtures shall be designed so that direct rays of lighting do not spill over onto the abutting properties".
[GMA doc. #4865]

IN THE MATTER OF AMENDING THE ISLAND COUNTY GROWTH MANAGEMENT ACT DEVELOPMENT REGULATIONS REGARDING LIGHTING

) ORDINANCE C-113-99 ) CD-02-99 ) )

By unanimous motion, the Board scheduled a public hearing on Ordinance #C-129-99 (R-40-99) Establishing parking restrictions on Maple Grove Road, Camano Island, in the vicinity of Maple Grove Boat Ramp, to be held on November 8, 1999 at 7:00 p.m. at the Country Club Fire Station located at 1326 S. Elger Bay Road, Camano Island.

By unanimous motion, as presented and recommended for approval by Mr. Kwarsick, the Board approved Intergovernmental Cooperative Purchasing Agreement #RM-PW #992032 with Kitsap County, to allow that county to purchase off of Island County’s call for bids.

Before the Board for purposes of scheduling public hearings were three proposed ordinances :

1. Ordinance #C-131-99 (#PLG-045-99) Ordinance Adopting Findings and Legislative Intent – Type 5 Streams.

As Mr. Dearborn pointed out, these are the last three ordinances relating to critical areas and compliance with the Growth Board’s decision. The first ordinance adopts the Best Management Practices Manual. There are only a limited number of copies available today of the manual and those who wish to obtain a copy should leave their name and address with Larry Kwarsick. The second ordinance adopts further changes to the Critical Area Regulations responding to the Growth Board’s decision. The third ordinance adopts Findings and Legislative intent relating to previous action on Type 5 Stream buffers. The recommended date and time of public hearing is November 1, 1999 @ 1:30 p.m., with a pre-determined continuation date of November 15, 1999 @ 1:30 p.m .if the Board on November 1^st determines to consider amendments, and public testimony on November 15^th would be limited to those amendments. If the Board determines no amendments will be considered, the public hearing on November 15^th will be for the purpose of Board deliberation and final action. It will not be until after November 15^th that the Board of Commissioners will have taken all of the actions to comply with the Growth Board’s remand on critical areas. At that time, a request will be sent to the Growth Board to determine compliance so there will be no interim steps to do that.

By unanimous motion, the Board scheduled for public hearing on November 1, 1999 at 1:30 p.m., Ordinance #C-128-99 (#CD-03-99) – Adopting Best Management Practices (BMPs) for exemptions to the Island County Critical Area Ordinance, Chapter 17.02 ICC, and to reaffirm the adoption of BMPs to implement the clearing and grading & stormwater & surface water ordinances, Chapters 11.02 & 11.03 ICC [GMA doc. #4869]; Ordinance #C-130-99 (#PLG-033-99) Critical Area Ordinance #2, Additional Amendments to 17.02 [GMA doc. #4868] ; and Ordinance #C-131-99 (#PLG-045-99) Ordinance Adopting Findings and Legislative Intent – Type 5 Streams [GMA doc. #4872].

A Public Hearing was held on Ordinance #C-97-99 (PLG-019-99), to comply with the WWGMHB provisions relating to Critical Area Regulations in 17.02, continued from August 23 and September 13, 1999.

Staff/Consultant: Keith Dearborn; Alison Moss; Larry Kwarsick

Public: John Graham; Steve Erickson; Mark Goldsmith; Gary Piazzon [Attendance Sheet GMA doc. #4877. Others who attended but did not sign Attendance Sheet, included: Fred Frei, Jr.; Fred Frei Sr.; Marianne Edain; Susan Meyer

An amendment package from Alison Moss consisting of proposed amendments 1 through 8 to Ordinance #C-97-99 was presented to the Board and John Graham by Mr. Dearborn on October 4, 1999 [GMA doc. #4796], and Mr. Dearborn confirmed those amendments were sent to everyone who testified at the September 13^th hearing, either electronically, faxed or in some other way delivered to each of the people who testified. Also provided to all those people three memoranda provided by Adolphson & Associates addressing comments from Maxine Keesling, WEAN, and the Department of Fish and Wildlife. Today’s hearing is only on the amendments.

For purposes of the record, Ms. Moss provided correction to Amendment No. 3 [GMA doc. #4874] and Amendment No. 5 [GMA doc. #4873], both correcting typographical errors.

Ms. Moss then summarized each proposed amendment:

Amendment #1 clarifies intent. Reviewed a September 15th memo from WEAN addressing an example Commissioner McDowell offered on West Beach. That memo demonstrates why the Director has the authority to require a biological site assessment in determining whether a buffer is functionally isolated.

Amendment #2 is in response to comments from the Department of Ecology and a request by Commissioner Thorn to use the most current wetland delineation manual adopted by DOE, and correcting some technical omissions in the preparation of Ordinance #C-62-98.

Amendment #3 addresses how an applicant would demonstrate that a species is in danger of extirpation and provides for use of existing tends to make that determination.

Amendment #4 responds to the concern that a habitat might not be used now by a species but might in the future, and adds the provision that someone can nominate habitat if it is currently documented to be used or is highly likely to be used.

Amendment #5 deals with the process and makes clear that the staff determines whether an application is complete using the nomination standards for that determination, and then makes a recommendation to the Planning Commission for any nomination which is complete, and the Planning Commission makes a recommendation to the Board based on standards. A few changes are made in the standards making clear that the County must consider whether the habitat or species is adequately protected by another regulation; that it must be consistent with the Comp Plan and must balance all of the goals of the Growth Management Act.

Amendment #6 deals with the buffers on lots adjacent to near shore marine habitats and attempts to make it clear that for any lot created after October 1, 1998 or any new non residential use, a 75’ buffer is required. For lots that existed on October 1, 1998, the applicant may either provide that 75’ buffer or implement the best management practices contained in the BMP Manual.

Amendment #7 relates to heron and osprey management plans. When Ordinance #C-62-98 was adopted the Board made heron and osprey designation as species of local importance contingent upon adopting a standard management plan [as is used for bald eagles]. The management implements the Board’s decision not to adopt standard habitat management plans for the great blue heron and osprey, and amends ICC 217.02.110.C.7 and the list of protected species to remove the reference to those plans.

Amendment #8 removes a typographical error in adoption of Ordinance #C-62-98 [the word hydrophytic was repeated in two lines].

Gary Piazzon, Coupeville, spoke on behalf of the Citizens Growth Management Coalition. Mr. Piazzon is also on the board of the Whidbey Audubon Society representing 300+ families with an interest in habitat, birds and wildlife, educational, entertainment and resource values thereof. Unofficially, he stated he spoke also for the tourist industry of which wildlife is a major attraction. He had the opportunity to look over the testimony from all the concerned parties. Many experts have testified and a lot of science has been provided, much of the science provided is heavily in favor of protecting the natural resources in the state they are in and probably protecting and enhancing. Mr. Piazzon provided for the record comments in writing on behalf of the Coalition [GMA doc., #4866] (new language underlined; proposed deletions in parentheses) concerning where the Coalition believed the revisions did not go far enough to afford real, science based protection and seemed fairly superficial. Summarized, the Coalition’s comments were:

John Graham, also speaking on behalf of the Coalition, added some points to Mr. Piazzon’s comments:

Amendment #2.

Amendment #5.

Amendment #6.

Mr. Graham brought up an issue he thought should be dealt with: 17.02.107.e.1, the AG exemption from the critical area regulation. The situation is that with the work already done, a farmer in RA land now has two choices: opt up to CA land where the AG exemption applies, or opt down to R land if critical area regulations prohibit using the land to farm. Mr. Graham questions the need now for the AG exemption. He urged that the amendments not be adopted today. Some issues may well go on to court, but he saw a number of issues he thought need not go on to court with the possibility of discussion. He agreed there had been a closing of the gap with the amendments Ms. Moss presented and he thought some of those gaps might be closed further.

Steve Erickson, WEAN, commented from his October 10, 1999 five-page letter, received 10-11-99 [GMA doc. #4867] summarizing:

Requirement to balance all of the goals of the Growth Management Act. These requirements appear in no other development regulations and question why the requirement has been included here; and asked for clarification why no other portion of the Island County Code are subject to those requirements. He asked too what the appeal l route was if a nomination was denied by the County Commissioners. Mr. Erickson indicated that the relevant portions of the section of the ordinance with WEAN’s suggested changes included:

8. Any person may nominate for designation a species or habitat of local importance.
9. The person making the nomination shall provide information demonstrating that the species or habitat nominated satisfies the following criteria;
   (1) The species or habitat is native to Island County’

1. The species is sensitive to habitat manipulation and long term persistence of the species is dependent on the protection, maintenance, or restoration of its habitat
2. Where a habitat is nominated, it is rare, or is considered of high quality or amongst the best remaining examples of that habitat, or will help to conserve that type of habitat given proposed restoration or management; or
3. Where a habitat is nominated to protect a particular species, the use of the habitat by that species is documented highly likely; or the habitat is proposed to be restored to a suitable condition for use by that species.

1. Following the recommendation of the Planning Commission, the Board of Commissioners shall designate a Habitat or Species of Local Importance that:

1. Satisfies the nomination criteria in subsection h) (i) and includes the

information required in subsections h) (ii) and (iii);

2. Is supported by best available science;
3. If protected by other county, state or federal policies, laws, regulations or non-regulatory tools, the protection is inadequate to prevent disturbance to or degradation of the species or habitat.
4. For which management strategies are practicable and effective ;
5. Without protection, there is a likelihood that the species or habitat will not persist or will be degraded over the long term;

In response to Mr. Erickson’s question about an appeal route with regard to denial by the County Commissioners of a nomination, Mr. Dearborn noted that under ICC 16.19 these are Type 4 decisions and quasi judicial.

To gain some further clarification about Mr. Erickson’s comments, Mr. Dearborn asked some clarification questions:

• Shoreline Buffer Reduction. Small lot developments on the shoreline, lots from the Fifties, Sixties and Seventies, narrow from . 50’ to 100’ lots, some as small as 30’, isolated undeveloped lots within these subdivisions, homes on either side or on one side, sometimes as close as 10’ to ordinary high water. What should happen when that property owner [by the County’s calculation, approximately 200 of these] wants to build similar to where his neighbors are building, is he told because of a kelp or eelgrass bed he has to stay back 75’?

Mr. Erickson’s response: Unless it is a reasonable use question, he thought that would be a good idea at this point, seeing no reason to allow additional degradation.

• Everything the County has been told is that the "load" is a water pollution concern from septic systems, fertilizers, etc.; are their other impacts?

Mr. Erickson’s response: Those are the primary impacts, but Andy Castelle referred to those areas also providing habitat for other species, such as herons and eagles; by having the development much closer to the shoreline may potentially be affecting use of those areas by those species. It is a site specific question.

• Mr. Dearborn noted that the County was struggling with areas that are almost fully developed and talking about the last few lots. Presume that house being built is in 50’ or 25’ of the shoreline with homes on either side 25’ or closer. It is hard to understand why one or a few last houses in a subdivision, historically there for eons, would have a consequential impact on the shoreline, that requires them to be set back so far in most cases would have their view obstructed by houses on either side. Finding a way to solve this problem, much of the rest of the concern of the County on some of the issues becomes much smaller.

Mr. Erickson’s response: Looking at the wording proposed and think it through

he did not see that it was necessarily restricted to just those existing lots that are surrounded by development, i.e. not tied to a particular zone.

Alison Moss pointed out it in the BMPs, tied to existing lots and there is also a minimum buffer proposed in the BMPs, septic location, construction materials, etc.

And Mr. Dearborn indicated that the minimum buffer was 25’ except in Natural and Conservancy which would be 50’. It could be brought down to those distances when there are existing homes on legally established lots on either side of lot proposed. This is also language in the Code today.

To provide a response, Mr. Erickson said that in this case he would have to look at the BMPs;

possibly if defined closely enough so it applies to relatively few locations, but he did not see anything from preventing it from applying to larger lots.

Mr. Dearborn The Hearings Board has asked this be deleted. The Board feel there has to be a way to be reasonable on these existing lots. The only way the County can do something other than delete it is go to court unless Mr. Erickson agrees.

Mr. Erickson stated his awareness of that. He agreed to look at the BMP section and get back to Mr. Dearborn.

Mr. Dearborn, looking at Mr. Erickson’s suggested changes in the designation and nomination criteria, noted in several locations Mr. Erickson talks about restoration [page 4]. As nominating criteria #2, aware that Mr. Erickson has suggested the word restoration before. A question is who will be doing the restoration and what did Mr. Erickson have in mind?

Mr. Erickson believed it would depend on the situation. As a as practical matter he sees two situations:

12. where the property owner is willing and cooperative, and in that case, is a non issue as to any restoration or management;

2. where the property owner may not be cooperative, in those situations the management strategies would be oriented around stopping destructive activities.

With regard to whether or not Mr. Erickson was expecting the County to do restoration if they choose to accept a nomination, he clarified "only on their own land".

Commissioner Thorn pointed out that the way this reads there would be no obligation; nomination has nothing to do with any kind active restoration.

Given his understanding of management plans is someone would not be developing a full blown management plan or a full blown restoration plan at that point, Mr. Erickson recognized there may be generalized strategies, and he gave an example for a prairie situation.

Mr. Dearborn asked Mr. Erickson what was the difference between using the word "maintain" and the word Mr. Erickson suggests "persist"?

Mr. Erickson responded that he was not sure, but scientific literature on conservation biology, talks about persist but not usually about maintain; it is a term used in biological science.

Ms. Moss pointed out the phrase came from WAC 365 190 030 which defines habitats of local importance and uses the phrase "species will maintain and reproduce over the long term" and the WAC gives examples of habitats that are not limited to areas in which a species reproduces. She believed, therefore, that concern is adequately taken care of.

Mark Goldsmith, State Department of Fish and Wildlife, expressed the fact that the Department

would not expect the Commissioners to adopt every recommendation made verbatim, but noted the Department’s big concern in the balancing act was that critical areas not get the short end of the stick. There was a question about why the Department hadn’t had discussions with the County about what, short of the recommendation DF&W made, would be acceptable, he noted he and Alison Moss had had that discussion some time back but did not arrive at any conclusion mutually acceptable, and the Department open to discussing that further. DF&W finds many of the proposed amendments to be quite good and responsive to comments from the last hearing. He provided the following comments on the proposed amendments:

1. Functionally isolated buffers. DF&W recommends delete because it will be hard to determine what part of the buffer is functionally isolated. Even a road may hinder the movement of water, it will be hard to determine that it isolates one part of a buffer from the other and wildlife will still cross over that road. Ideally the buffer that is isolated would one day be reconnected with the other side.

2. No comments; amendment looks fine.
3. Good response to comments made at the last hearing.
4. Folks who spoke before him had some good suggestions about tightening up this part of the ordinance to better achieve the objective.
5. The section talking about having to be appropriate and balancing all of the goals of the Growth Management Act, he saw no reason to include that section, the proper place for that would be in the introduction to the Comprehensive Plan itself.
6. Buffer for protecting shellfish, kelp and eelgrass, herring and smelt spawning areas, and the issue struggling with is a touch issue. One of the big impacts putting a house close to the shore is that the closer the house goes to the shore the more likely that homeowner is to decide they need a bulkhead. The bulkhead has a very strong impact especially on herring and smelt spawning areas. Suggestion: if the neighbors are 200’ away on either side, maybe being 75’ back would not be so bad. The further back the better it is for decreasing the likelihood there will be impacts to the marine resources, herring and smelt spawning areas.
7. Habitat management plans work very well for bald eagles, and suggested the possibility that the County come up with a standard management plan for heron and osprey similar to the one used for eagles. As far as extra work for staff, DF&W found generally the standard management plan has been working very well and generates very little work for the Department. Though some may feel that if a habitat management plan is required folks are not able to do anything with their property, but that proved not to be the case, citing an Island County example [in the Oak Harbor area] a man built a house about 30’ away and a pair of eagles hatched two chicks out of that nest this last year. It is clear it does not shut down all activities on a piece of land. He suggested that recommendations can be prepared specific to Island County that would work well for heron and osprey just as it has worked well with DF&W for bald eagles.
8. Amendment okay.

Susan Meyer, Department of Ecology, stated that she had not had an opportunity to review the most recent version of the proposed amendments and requested Ecology be permitted to comment in writing within the next couple of days.

Keith Dearborn confirmed that those amendments had been electronically transmitted last Monday to Alice Schisel from DOE who spoke at the last hearing on Monday. As he noted at the beginning of the hearing a copy of the amendments were sent to everyone who testified at the September 13^th hearing, either electronically, faxed or in some other way delivered to each of the people who testified.

Ms. Meyer offered as one possible reason she had not received a copy from Ms. Schisel was that Ms. Schisel had been in a slight auto accident Tuesday and gone from the Office all week. Ms. Meyer looked over a copy of the amendment copies Mr. Goldsmith had and made the following comments:

She agreed that functionally isolated buffers provision should be deleted. In order to make a decision of a functionally isolated buffer a person would have to be a qualified

biologist and was not sure that Island County has those capabilities. Just having a road, even though a public road, or a vertical separation, does not necessarily functionally

isolate the buffer. This should be evaluated more on a case by case basis.

The BMP manual. It came to mind that the 75’ buffer for shellfish, kelp and eelgrass beds, etc., a reduction to a 75’ buffer could be incorporated in the BMPs so there be

no lawns in a certain distance from the shoreline; no bulkheads allowed in the

future, etc. One of the concerns is the removal of vegetation adjacent to the shoreline

because of erosion into the eelgrass beds, etc. from the shoreline. She thought that may be a geotechnical report could be included in the BMPs and required in order to reduce it a certain amount. The BMP manual should include something about maintaining natural vegetation in the remaining buffer and if the remaining buffer

does not have good native vegetation, that be enhanced with native vegetation.

Mr. Dearborn confirmed that she would have an opportunity to review and comment on the BMP manual, the matter scheduled for public hearing on November 1, 1999 at 1:30 p.m., provided to Ms. Meyer a copy of the Ordinance and a copy of the BMP manual [BMP Manual – GMA doc. #4923].

As far as proposed modification to the 75’ buffer in established areas, Mr. Dearborn commented that Ms. Meyer indicated a recognition there needs to be some ability to make adjustment when homes either side are set up closer. When she reads the BMP manual, he noted she would see for Natural and Conservancy shorelines, the minimum will never be reduced below 50’; for other shorelines it would be 25’, and also have to comply with BMPs to reduce it below 75’.

From Ms. Meyer’s standpoint, depending on the BMPs required, a reduction no less than 75’ is how she would look at it.

Ms. Moss explained that the 25’ and 50’ are buffers under the BMP Manual, but also the same area in which the shoreline setback would apply.

Ms. Meyer stated that the concern with the reduction is that it will be construed as okay in all areas where there is a house on one side or the other. In some areas that were platted in the Forties or Fifties, those that are not surrounded by houses should not be reduced.

Mr. Dearborn commented that the shoreline buffer proposed in the Master Program is 25’ and 50’, depending on the environment. What is suggested here is that never in any circumstance could it be shorter than 25’ or 50’.

Again, Ms. Meyer explained the concern is with bulkheads and lawns to the edge of the shoreline where fertilizers and pesticides are used, etc.

Fred Frei, Jr., representing the Frei Family and the Frei Tree Farm, South Whidbey, gave some specific examples of people he knew in the AG and forest business who could be hurt by these regulations, having more and more restrictions on what they can do on the land and impacting their livelihood and felt strongly, emotionally, it came down to a liberty and justice issue as well. He talked about folks such as Robert Breedlove, with a 20 acre parcel on South Whidbey; another Mildred Anderson, and Mr. Campbell, and noted these folks must not be treated as second rate citizens.

A written submittal was provided for the record, sent from Tom Roehl, ICPRA, a proposed correction to Amendment No. 1: [GMA doc. #4875]

"Readopt ICC 17.02.107.H Physically Separated and Functionally Isolated Buffers:

1. Functionally isolated buffer areas. Areas which are both physically separated and

functionally separated from a critical l area and by natural or man-made features or structures so that they do not protect the critical area from adverse impacts due to pre- existing public roads, structures or vertical separation shall be excluded from buffers otherwise required y this chapter. The Director may require a Biological Site Assessment to determine whether the buffer is functionally isolated."

No others indicated a desire to speak at this time, and public comment portion of the hearing was closed.

Ms. Moss acknowledged that the Board heard a number of things that were not remand issues: the size threshold for wetlands, wetland buffers, standards for biological site assessment and the 75’ buffers on lots other than existing infill lots. Both the Coalition an WEAN submitted comments about the County taking into account whether a habitat could be restored. She thought that already implicit already in two of the standards: nomination standard #5 talking about documented use by a species or highly likely used by the species; and standard #6 talks about high quality habitat. If someone is proposing restoration that would get to high quality habitat that restoration plan is obviously taken into account in considering whether the nomination standards had been met. In Mr. Erickson stating that the County was only trying to protect water quality through critical areas regulation, she did not feel was an accurate statement. The County received a lot of information about the effectiveness of buffers in protecting certain kinds of water quality perimeters, but in stream buffers the focus is on the quality of the habit within the stream, and wetlands the same thing. With regard to the amendments dealing with habitats and species of local importance, both WEAN and the Coalition commented they find it difficult to meet all six of the nomination standards. She suggested the for the second nomination standard it may be that that be "or" rather than "and" but the rest would be "and".

Mr. Dearborn explained the suggestion: for the nomination criteria and the designation criteria in C, sub h, there have been suggestions made today that can help refine those criteria further, but need some time to work on those. Both WEAN and the Coalition made suggestions that add or modify words and clarify intent in ways that may be helpful. Those can be refined close to what the parties are asking for.

As to action today versus continuation, a hearing is set for November 1 and the Board could for matters not resolved today could be continued for that portion of the ordinance for November 1, but close the hearing since any refinement done now will not be a new subject, simply responding to subjects and proposals raised on the amendments for clarification.

Commissioner Thorn recommended deletion of the functionally isolated buffer section.

Chairman Shelton recalled that the original testimony in opposition to functionally isolated buffer was that people said it could be any dirt road that would functionally isolated buffer; the Commissioners clarified that was not the intent, that it would have to be something substantial and something that truly would isolate the buffer. Some of the provisions made should have satisfied some of the concerns the Board heard.

Commissioner McDowell did not support Commissioner’s Thorn’s proposal. He thought it would be something that had to be on a case by case basis, and believed staff could make that call.

Chairman Shelton pointed out the language that the "Director may require a biological site assessment" .

Ms. Moss clarified that if a biological site assessment is required the applicant would have to have it prepared.

Commissioner Thorn moved to delete the paragraph on functionally isolated buffers. Motion died for lack of a second.

Commissioner McDowell moved to accept Amendment No. 1. Motion was seconded by Commissioner Shelton, and carried by majority vote; Commissioner Thorn opposed.

Commissioner Thorn moved approval of Amendment #2. Motion, seconded by Commissioner McDowell carried unanimously.

Commissioner Thorn moved to continue for consideration, based on testimony received today,

Amendments 3, 4 and 5, and that those three amendments be combined into one amendment, Amendment No. 9. Motion, seconded by Commissioner McDowell, carried unanimously.

Commissioner Thorn moved to continue proposed Amendment No. 6. Motion, seconded by

Commissioner McDowell, carried unanimously.

Commissioner Thorn moved to accept Amendment No. 7 as written. Motion, seconded by Commissioner McDowell, carried unanimously.

Commissioner Thorn moved to approve Amendment No. 8. Motion, seconded by Commissioner McDowell, carried unanimously.

By unanimous motion, the Board continued action on Ordinance #C-97-99 to November 1 at 1:30 p.m. [Notice of Continuance GMA doc. #4871]

The Board met in Executive Session as allowed under R.C.W. 42.30.110 (1) (i) to discuss Pending Litigation with Special Legal Counsel. The session lasted from 4:00 p.m. until 5:00 p.m. and no announcement was made at the end of the session.

ATTEST:

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Margaret Rosenkranz, Clerk of the Board