February 28, 2000
WOODINVILLE--King County's Tim Ceis discussed the pros and cons of Woodinville City Council's signing the Interlocal Agency Agreement (ILA) as part of a regional response to restore Chinook Salmon habitat, at their Feb. 22 Study Session. Ceis, lead negotiator for the Tri-County coalition of King, Snohomish, and Pierce Counties, also explained the proposed "Tri-County 4(d) Rule Framework" (Framework).
The Framework was Tri-County's first major step to show the National Marine Fisheries Service (NMFS) that local governments of western Washington will take proactive steps to organize in support of Chinook recovery efforts. The Framework was submitted to NMFS in December, and will be published in the Federal Register in March.
Not signing the ILA could make individual cities vulnerable to close federal scrutiny and potentially strict "take" prohibitions under the ESA, said Ceis. Signing the ILA would protect the City from "take" prohibitions under an umbrella of proactive salmon habitat restoration--the "Early Action Program"--described in the Framework, said Ceis. But even cities participating in the Framework will be subject to third-party lawsuits, such as those by property owners protesting restrictions against property use, or citizens protesting inadequate fish protection.
Woodinville has already informally adopted an Early Action Strategy that mirrors the proposed requirements of the Framework. By contracting with King County for road and storm water maintenance, any Framework changes will be automatically executed by King County for Woodinville.
Signing would commit the City to help fund a regional response to salmon recovery. However, in light of some cities' concerns that the Framework sets standards that exceed their abilities to meet the funding requirements, especially cities hardest hit by I-695, the ILA team is proposing that jurisdictions be allowed to participate in salmon restoration planning without Framework coverage.
Some jurisdictions are waiting for a March cost analysis of Framework requirements before signing on, so they can weigh the costs and risks of ESA liability protection under the Framework. Each jurisdiction has the option to "opt-in" and out of the agreement.
Councilmember Bob Miller asked Ceis to explain how the two-sided coin of "take"--damaging salmon habitat and restricting land use--would affect Woodinville. Should the City expect a rash of lawsuits from a proposed increase of buffer zones along waterways such as Little Bear Creek, and what will the final buffer number be?
"That involves a fine balance," said Ceis. "Sometimes it involves buying property. The federal government might say, 'We don't care, if that's what it takes, buy them out!' But we know many cities don't have excess funds.
"I don't think you'd be liable, under federal law. The buffer requirements along streams will probably be 200 feet in rural areas and 300 feet in urban areas. There will be a 200-foot maximum along fish-bearing streams, 50 feet on non-bearing streams, and 35 feet on small streams and lakes."
Woodinville citizen Craig Stevens, who is president of the Little Bear Creek association, and who lives on the creek, encouraged the City to sign the ILA, pointing out that the creek's passage within two counties and across state highways inherently makes it an interlocal issue. He said joining would qualify the city for private funding for stream improvements.
He pointed to the community pride and commercial benefits Issaquah has realized from their "Salmon Days" festival, and said many high-tech companies have located in Issaquah because they wanted to be associated with a city of such quality of life principles. By advancing the City's professed quality of life concerns, Woodinville can attract higher revenue businesses that have less inherent harm, said Stephens.
Councilmember Don Brocha asked Ceis to summarize the ILA benefits for Woodinville versus how it would impact economic development.
Ceis said financial institutions have shown uncertainty about loaning money, from fear of lawsuits, until they see how the issue plays out. He emphasized the umbrella protection of the ILA. The Tri-County effort is not proceeding on "government time," which often involves years, said Ceis. Rather, they are developing an acceptable Framework in a matter of months. They are looking at this June as the target date for getting jurisdictions to sign on to the ILA, and to early 2001 for those joining to come into compliance with the Framework.
Citizen Andy Solberg observed that Little Bear Creek had no buffer zones in some places, and asked how the Framework might affect "grandfathered" businesses, such as local auto wrecking businesses.
Ceis said no land use restrictions could be added to existing businesses; that they could only be asked to comply, until the owner of any such property re-applied for new development on the land. "That's why we are looking at a 200-year time frame of complete recovery, including reforesting" he said.
Ceis praised Deborah Knight, Assistant to the City Manager, for writing "one of the best," most concise summaries of the complex Framework document that he has seen.