ROBERT P. GIBB, M.D.

PATHOLOGIST

204 VIEWCREST RD., BELLINGHAM, WA 98229 * (360) 733-5775

 

                                                                                                                                           October 17, 2005

 

Association of Bellingham Neighbors

City of Bellingham

Bellingham, WA

 

Ladies and Gentlemen:

 

Awesome!  After fifty years of observing political activity in the city of Bellingham, I have witnessed the creation of a new political force capable of quickly addressing governmental tyranny, which was abusing the will of the citizenry and threatening the future of the community.  Congratulations.

 

Unfortunately the task is half completed.  I attended your August 29th meeting and was shocked when Mr. Spens accused you all, collectively and individually, of being liars and stupid.  Such arrogance and conceit will continue to permit the greedy to destroy our community.  The Critical Areas Ordinance, of which he must be the author, and which the City Council is overdue in adopting, threatens the streams, wetlands, greenspace and quality of life in all of Bellingham. 

 

Attached is a copy of a letter sent by me to the City Council.  It offers a possible solution to the Critical Areas crisis.  Creation of an elected Planning Commission may not be legally possible but if the Planning Department/Developer consortium is to be controlled, the elected City Council must take back the power of final decision for variances and planned developments, There are other areas in the CAO which are problems, such as averaging buffer zones and the definition of  “Best Available Science” which need removal or clarification.

 

The City Council should be addressing these issues, but as currently composed, it is unlikely that this governmental body has the leadership, cohesiveness and will to do so. Recognizing the time required and frustration involved in monitoring city Council activities, I sincerely urge you address the modification and adoption of the Critical Areas Ordinance.

 

 

                                                                                                                                           Sincerely,

 

                                                                                                                                           Robert P. Gibb, M.D. 

 

 

ROBERT P. GIBB, M.D.

PATHOLOGIST

204 VIEWCREST RD., BELLINGHAM, WA 98229 * (360) 733-5775

 

                                                                                                                                           September 30, 2005

 

The City of Bellingham City Council

210 Lottie Street

Bellingham WA 98225

 

RE: Critical Areas Ordinance

 

Ladies and Gentlemen:

 

The overdue new Critical Areas Ordinance is a step in the right direction but there are fundamental flaws.  The major one of these concerns the powers given to the Planning Director.  Arbitrary decisions over issues involving planning, ecology, geology, marine biology, mitigation allowances and best available science, among others are much too broad, especially considering that our current Director has expertise in none of these areas.  In years past the City Council made final decisions on these.  Recognizing the workload that these decisions impose, it is understandable that the Councils delegated those onerous, time-consuming tasks.  In doing so, you have isolated your constituents from the decision process.  The Planning Commission of well-intended volunteers is an appointed body, designed to allow input. It does not attract expertise and is manipulatable by Planning Department staff.  Time for community input is provided but rarely, if ever, results in action.  Has the appointed Hearing Examiner ever made a judgment opposing the Planning Director?

 

My suggestion is that the CAO be revised to return final decisions to the City Council until a representative alternate system is adopted.  An alternate system would be a Planning Commission, composed of elected members from each ward, possibly chaired by an elected member of the City Council, providing direct input back to the Council on Planning Management & community concerns.

 

In addition, it is suggested that the Council set up specific requirements for the position of Planning Director.  At least Master’s Degree and 5 years experience in Community Planning and in Environmental Science should be prerequisites.  The appointment should be made or approved by the Council.

 

Specific to the CAO, I am appalled at the lax buffer zones included for the riparian creeks formerly contributing to a major industry in Bellingham and Whatcom County, fishing.  (Pages 54 to 56).  The buffer zones should adhere to those recommended by the Washington State Department of Fish & Wildlife: 200 to 250 feet for type 1, 2 & 3 streams and 150 for types 4 & 5.  There should be no maximum or minimum; that just creates arguable loopholes.  The fact that these have not been followed in the past can be handled by a “grandfather clause” for those completed and permitted.  Let us not further destroy our valuable streams.

 

The exceptionally poor handling of the development on the southeast corner of 12th & Old Fairhaven Parkway is a case in point.  The Planning Department arrogantly decreed the project would have no environmental impact and allowed a buffer zone to Padden Creek a distance of only 62 feet down a steep slope.  Permitting this encroachment on this stream carrying spawning threatened specie of Chinook Salmon and candidate specie Coho Salmon is in violation of Federal Law, even though the WSD of F&WL have not yet authenticated some of these facts.  The sources for this are Dr. John McLaughlin, PhD. at Huxley College and John Steele at the Bellingham Technical College who has been involved with the Salmon Recovery Program for over 20 years.  An Environmental Impact Statement, required by the SEPA checklist for Non-Significance signed by Chris Spens, in fact requires an EIS, if known.  It is easier to write “unknown”.

 

There has been a small slide from the corner of this development into the buffer zone and this without rain.  The HPA system for handling surface storm water will, through a soaker hose principal, spread water to the slope, to the limited buffer zone and to the creek and will in all probability cause more slides.  The fact that there have been slides in the past on this vertical slope, just to the east of the development, was ignored in the SEPA document, as was the prior existence of a gas station on the site.  An Environmental Impact Study could have revealed these oversights or intentional omissions.

 

Considering that the Lummi Indian Nation lays claim to half of the fish in Bellingham Bay, why have they not been consulted on this project?  An EIS also might have revealed this oversight.

 

It is difficult to understand why the CAO has been so long delayed in being presented to the Council.  Was it intentional to force acceptance without timely review?  Please take adequate time.  This is an exceptionally important document for the future of Bellingham. 

 

                                                                                                                                           Sincerely,                                                                                                                                                                  

 

                                                                                                                                           Robert P. Gibb, M.D.

 

 

The following excerpt is from pages 54-57 of the 16.50 Critical Areas Ordinance regarding Riparian Habitat Areas (Buffers) found at http://www.cob.org/documents/planning/2005-08-08-cao-state-review.pdf or go to www.cob.org to read the draft of the Critical Areas Ordinance.

 

development performance standards set forth in this chapter. If non-wetlands habitat and wetlands are present at the same location, the provisions of this Chapter which provide the greater protection to the habitat apply.

D. Riparian Habitat Areas (Buffers). Unless otherwise allowed in this Chapter, all clearing, grading, structures, storage of materials and activities shall be located outside of the riparian habitat area.

          1. Establishment of Riparian Habitat Areas. Riparian habitat areas shall be established for habitats that include aquatic and terrestrial ecosystems that mutually benefit each other and that are located adjacent to creeks, natural perennial or intermittent streams.

 

          2. Riparian Habitat Area Widths. Riparian habitat area widths are shown in the table below. A riparian habitat area shall have the minimum width recommended, unless a greater width is required pursuant to Subsection (3), or a lesser width is allowed pursuant to Subsection (4). Widths shall be measured outward in each direction, on the horizontal plane, from the ordinary high water mark, or from the top of bank, if the ordinary high water mark cannot be identified. Riparian areas should be sufficiently wide to achieve the full range of riparian and aquatic ecosystem functions, which include but are not limited to protection of instream fish habitat through control of temperature and sedimentation in streams; preservation of fish and wildlife habitat; and connection of riparian wildlife habitat to other habitats.

 

Riparian Habitat Areas Widths (Buffers)

Stream Type 1 & 2 (Type “S”)

Table 5

Creek

Segment

Minimum

Maximum

Chuckanut

Mouth to Chuckanut Drive

100 feet

250 feet

Chuckanut

Chuckanut Drive to City Limits

100 feet

250 feet

Whatcom

Mouth to Woburn Street

100 feet

200 feet

Whatcom

Woburn Street to Derby Dam

150 feet

250 feet

Whatcom

Derby Dam to Lake Whatcom Dam

100 feet

200 feet

Squalicum

Roeder Br to I-5

100 feet

200 feet

Squalicum

I-5 to Hannegan Road

150 feet

250 feet

Squalicum

Hannegan Road to SMP boundary

100 feet

200 feet

 

 

 

 

 

 

Stream Type 3 (Type “F”)

Table 6

Creek

Segment

Minimum

Maximum

Padden

Harris Street to Donovan Avenue

75 feet

150 feet

Padden

Donovan Avenue to Old Fairhaven Pkwy

100 feet

150 feet

Padden

Old Fairhaven Pkwy to I-5

75 feet

150 feet

Padden

I-5 to Lake Padden

150 feet

200 feet

Connelly

Mouth to Detention Dam

75 feet

150 feet

Squalicum

SMP boundary to City Limits

100 feet

150 feet

Baker

Mouth to I-5

100 feet

150 feet

All Other Type 3 Streams

Type “F”

75 feet

150 feet

Type 4 Streams

Type “Np”

50 feet

150 feet

Type 5 Streams

Type “Ns”

50 feet

100 feet

Type 4 & 5 Streams with high mass wasting risk

 

200 feet

225 feet

 

(for reference only)

Recommended Riparian Habitat Areas (Buffers)

Table 7

Stream type

WDFW Recommended RHA widths

Type 1 and 2; or shorelines of the state, or shorelines of statewide significance

250 feet

Type 3; or other perennial or fish bearing streams, 5-20 feet wide

200 feet

Type 3; or other perennial or fish bearing streams, < 5 feet wide

150 feet

Type 4 and 5; or intermittent streams and washes with low mass wasting potential

150 feet

Type 4 and 5; or intermittent streams and washes with high mass wasting potential

225 feet

 

 

** Please note that Water and Stream Types are defined under “Water Type”, section 16.50.460.

          3. Increased Riparian Habitat Area Widths. Riparian habitat area widths shall be increased beyond the minimum, up to the maximum, as follows:

          a. When the Director determines that the minimum width is insufficient to prevent habitat degradation and to protect the structure and functions of the habitat area;

          b. When the frequently flooded area exceeds the minimum riparian habitat area width, the riparian habitat area shall extend to the outer edge of the frequently flooded area;

          c. When a channel migration zone is present, the riparian habitat area width shall be measured from the outer edge of the channel migration zone;

          d. When the habitat area is in an area of high blowdown potential, the riparian habitat area width shall be expanded an additional fifty (50) feet on the at-risk side; or

          f. When the habitat area is within a landslide hazard area, or buffer, the riparian habitat area width shall be the maximum distance, or the erosion or landslide hazard area buffer, whichever is greater.

          4. Riparian Habitat Area Width Averaging. The Director may allow the riparian habitat area width to be averaged in accordance with a critical area report only if:

          a. The width reduction will not reduce stream or habitat functions, including those of nonfish habitat;

          b. The width reduction will not degrade the habitat, including habitat for anadromous fish;

          c. The total area contained in the riparian habitat area of each stream on the development proposal site is not decreased;

          d. The recommended riparian habitat area width is not reduced by more than twenty-five percent (25%) in any one location; and

          e. The width reduction will not be located within another critical area or associated buffer.

 

          5. Riparian Habitat Mitigation. Mitigation of adverse impacts to riparian habitat areas shall result in equivalent functions and values on a per function basis, be located as near the alteration as feasible, and be located in the same sub-drainage basin as the habitat impacted.

 

          6. Alternative Mitigation for Riparian Habitat Areas. The performance standards set forth in this Subsection may be modified at the City’s discretion if the applicant demonstrates that greater habitat functions, on a per function basis, can be obtained in the affected sub-drainage basin as a result of alternative mitigation measures.

 

E. Aquatic Habitat. The following specific activities may be permitted within a riparian habitat area, pond, lake, water of the state, and marine habitat or associated buffer when the activity complies with the provisions set forth in the SMP and subject to the standards of this Subsection. The standards that provide the most protection to protected habitat and species shall apply.

          1. Clearing and Grading. When clearing and grading is permitted as part of an authorized activity or as otherwise allowed in these standards, the following shall apply:

 

          a. Grading is allowed only during the dry season, which is typically regarded as beginning on May 1 and ending on October 1 of each year, provided that the City may extend or shorten the dry season on a case-by-case basis, determined on actual weather conditions.

          b. Filling or modification of a wetland or wetland buffer is permitted only if it is conducted as part of an approved wetland alteration.

          c. The soil duff layer shall remain undisturbed to the maximum extent possible. Where feasible, any soil disturbed shall be redistributed to other areas of the project area.

          d. The moisture-holding capacity of the topsoil layer shall be maintained by minimizing soil compaction or reestablishing natural soil structure and infiltrative capacity on all areas of the project area not covered by impervious surfaces.

          e. Erosion and sediment control that meets or exceeds the standards set forth in BMC 15.42 shall be provided.

 

          2. Shoreline Erosion Control Measures. New, replacement, or substantially improved shoreline erosion control measures may be permitted in accordance with an approved critical area report that demonstrates the following:

          a. Natural shoreline processes will be maintained. The project will not result in increased beach erosion or alterations to, or loss of, shoreline substrate within one-quarter (1/4) mile of the project area.

          b. The shoreline erosion control measures will not degrade fish or