MINUTES OF THE METRO COUNCIL GROWTH MANAGEMENT COMMITTEE

Tuesday, November 7, 2000

Council Chamber

Members Present:  Rod Park (Chair), Susan McLain, Rod Monroe

Others Present    Bill Atherton

Members Absent:    None

Chair Park called the meeting to order at 3:07 p.m.

1.  CONSIDERATION OF THE MINUTES OF THE OCTOBER 17, 2000, GROWTH MANAGEMENT COMMITTEE MEETING

2.  RESOLUTION NO. 00-2971, FOR THE PURPOSE OF GRANTING A TIME EXTENSION TO THE CITY OF PORTLAND FOR COMPLIANCE WITH TITLE 3 OF THE URBAN GROWTH MANAGEMENT FUNCTIONAL PLAN

Brenda Bernards, Senior Regional Planner, introduced the resolution by summarizing where the rest of the jurisdictions in the region stood on various Title 3 compliance activities. (More details about this resolution can be found in the staff report that accompanies this resolution in the meeting packet that is part of the permanent record.) She said eleven jurisdictions are in compliance: Beaverton, Cornelius, Forest Grove, Happy Valley, Johnson City, Maywood Park, Oregon City, Sherwood, Troutdale, Wood Village and Washington County. Five in Washington County have not finished their work but are under Federal Endangered Species Act (ESA) regulations and so are in effect implementing Title 3. Several are in partial compliance: Portland has finished flood management and erosion control; Rivergrove has finished flood management with the rest to be finished by the end of this month; Wilsonville has finished flood management and erosion control and will finish water quality in November. Clackamas County is in substantial compliance inside the urban growth boundary (UGB) but not in those areas within Metro’s boundary outside of the UGB; Lake Oswego is in compliance on erosion control and finishing hearings on flood management and water quality. Fairview, Gladstone, Gresham, West Linn, Milwaukie, and Multnomah County are still working toward compliance. Milwaukie expects to complete flood management and erosion control by December but will need an extension for the water quality management.

Councilor Park said that as of last September when 60% of the jurisdictions were in compliance, staff had anticipated that 90% would be in compliance now. He asked what the actual percentage would be.

Ms. Bernards said regarding compliance with all the titles, jurisdictions had been the slowest on Title 3, but she still expected close to 90%.

Councilor McLain noted that the list Ms. Bernards read did not match the list attached to the City of Portland’s letter in the agenda packet.

Ms. Bernards said she would provide an updated list.

Andrew Cotugno, Director, Growth Management, said Exhibit A to the resolution in the agenda packet presents Metro’s staff’s recommendations for granting extensions to the City of Portland. The city’s request is in the exhibit, also. He noted that the city had requested July 2001 as the completion date for the tributaries to the Columbia and Willamette and 2002 for the main stem of the rivers. Staff recommended splitting the tributary work into two phases, one being the mapping, code revisions, and other products and the other being the adoption process, which would likely take until July of 2001. The city would need to then submit a proposed schedule for the adoption process for approval.

Staff would prefer that work on the main stems of the rivers not be delayed until 2002. He said that staff understood the city would be implementing a comprehensive “river renaissance” effort, which would address Title 3, Goal 5 and ESA issues; nevertheless staff would prefer that the city adopt the minimal Title 3 setbacks by the 2001 deadline rather than waiting until 2002. To summarize, staff would prefer the December 31, 2000, deadline for the products part of the work with adoption by July 31, 2001, for adoption of the tributaries work and for all the setbacks.

Gil Kelley, Planning Director, City of Portland, said the city would accept those recommendations. (A letter from Mr. Kelley, dated November 7, 2000, stating the city’s position has been attached to the meeting record.)

Chair Park noted that Council would not be meeting after December 14, 2000, which would make the December 31 deadline for products problematic.

Mr. Kelley said the products part could not be finished before December 31, 2000. He said that the city had made the tributaries work a comprehensive, science-based approach to include all Title 3 requirements as well as ESA regulations. It would take from January through July to make its way through the public hearing process. The Willamette issue would address water quality compliance first and apart from the rest of the river renaissance project. To complete all the work would take until July of 2002, but the compliance part could be addressed early so as not to hold up the rest of the compliance process.

Linda Bauer, 6232 SE 158^th St., Portland, OR, testified in opposition to the resolution. She said the city has not been enforcing erosion control regulations currently on the books. She distributed pictures documenting non-compliance and non-enforcement by the city. (Written testimony has been attached to the public record.) She said granting the extension would give the city permission to continue ignoring its regulations. Denying the extension might pressure the city to enforce the regulations.

Chair Park said that Metro had no statutory authority over the city’s enforcement. Enforcement was a separate issue from establishing regulations, and he did not see how Metro’s denying the extension would improve enforcement.

Mr. Kelley said that although Ms. Bauer’s concerns lay outside of his department’s authority, he thought they were legitimate and would take them to the office of Planning and Development Review.

Councilor McLain said Ms. Bauer’s concerns seemed well documented and should be addressed by the proper authorities. She said, however, because this was not a Metro issue it would not affect her vote on the resolution at hand.

Mr. Cotugno suggested changing the date for requesting approval of the adoption schedule from December 31, 2000, to January of 2001. The city would not be able to set a realistic schedule before the products part has been completed.

Councilor Park asked if that schedule would create a period of time when the City of Portland would be technically out of compliance.

Larry Shaw, Counsel, said yes.

Mr. Kelley suggested that the extension be approved for July 31, 2001, only on the condition that the city returns in January with the schedule for adoption. That would mean the city would be granted a single conditional extension instead of two separate ones for different tasks.

Mr. Cotugno reiterated that approval would mean the deadline for the extension would be July 31, 2001, subject to submission of the relevant proposed regulations, programs, and code by December 31, 2000, and returning to the Metro Growth Management committee in January 2001 with the proposed schedule for adoption.

Councilor McLain said she would support the change; however, she did not understand why the city needed the extension at all. She said that the city had known about Title 3 since 1996 and had submitted 110 amendments to it since 1998. She understood that the ESA had come down in the meantime, but he did not understand why Portland could not finish its work when smaller jurisdictions had been faced with the same challenges and had finished theirs. She had expected Portland to be a leader not only in concepts but also in terms of time. She said it was this work should have been completed by 1999 if not earlier.

Mr. Kelley said although Portland is late on the water quality piece, he said the tributary piece, which wraps up all the Goal 5, ESA, and Title 3 issues, would demonstrate Portland’s leadership. He said Portland has used a science-based approach, and much of the science has come in only in the past year.

Councilor McLain said she still felt Portland should have done better. She said the smaller jurisdictions also had new science coming in. She said none of the jurisdictions would be finished with ESA compliance by July of 2001. She said all the jurisdictions would have to do the work in pieces. However, to keep the results as whole as possible, the pieces needed to be put together in a timely manner. She was confident that the city’s work would be high quality, but she objected to the amount of time it had taken. She said she would vote for this extension, but she warned the city not to request another one.

Mr. Kelley said the city had convened a panel of peer experts to examine the science, to make sure the decisions would stand up to legal challenges.

Councilor McLain said the same people sit on several science panels, and they have on occasion expressed different views depending on which panel they are sitting on. She said it would not stand up in court if one expert comes up with two conclusions.

Councilor Atherton asked if the River Renaissance project would include Tryon Creek. He said even a small amount of rain muddies the creek yet new developments continue to get approved.

Mr. Kelley said the water quality and Goal 5 work on the tributaries part of compliance would apply to Tryon Creek. The river renaissance was a larger project mainly aimed at the Willamette River. It would include examining the tributaries, including Tryon Creek, but it would not include revisiting Title 3 with respect to Tryon Creek. He said there are watershed-wide issues concerning storm drainage that lie beyond Title 3 and Goal 5. That process is underway by the Bureau of Environmental Services. He said that storm water was the greatest single offender in the water-quality equation, and existing roads and developments—not new ones—were single biggest contributor.

Andy Cotugno suggested the following wording to amend the resolution by changing the wording in Exhibit A under “Willamette Tributaries and the Columbia Slough,” as follows: “It is recommended that Metro Council grant Portland an extension to July 31, 2001, to complete staff work and adopt water-quality protection measures for the Columbia Slough and the tributaries of the Willamette River.” Below that paragraph, leave number 1 as it is. Add to number 2 as follows: “That the city provide Metro with a copy of the proposed regulations and programs, in advance of the public release of those documents, in order to review the documents for compliance with Title 3 requirements and that the public release that complies with Title 3 be available by December 31, 2000. Add to number 3 as follows: That the city return to the Metro Council in January 2001 with a specific adoption schedule for protection of Willamette tributaries and the Columbia Slough, which adoption is presently anticipated to occur in July 2001.” Eliminate Number 4.

The same kind of language would be incorporated into the sections on the Willamette and Columbia Rivers. That means the extension would apply only to the setbacks, not to the balanced cut-and fill and storm water parts. The latter two would have already been adopted in July 2001.

Michael Morrissey, Council Analyst, added that the changes were not confined to Exhibit A; the same changes would need to be made to the body of the resolution,

Councilor McLain will carry the motion to a meeting of the full Council.

3.  FINAL DRAFT OF STREAMSIDE CPR PROGRAM OUTLINE: PURPOSE, VISION, GOAL, PRINCIPLES AND CONTEXT

Mr. Cotugno introduced the draft by emphasizing the message contained in the first paragraph—i.e., that this document would be a guide for developing regulations, but it would not in itself be regulatory. (The draft outline is included in the agenda packet that is part of the meeting record.) Metro’s role would be to establish an overall framework, but the implementation would be up to each local jurisdiction. Metro would also be working to meet its own 2040 goals beyond meeting state Goal 5 goals. Metro’s goals include providing access to open spaces while protecting endangered species.

One important principle put forth in this document is that of balance—balance between environmental, economic, and social aspects of regulations. In this regard, the word “appropriate” shows up.

Another important principle is that the goal is not to produce a set of regulations, because regulations by themselves cannot protect habitat. There will also need to be grant programs, incentive programs, stewardship and education programs.

Finally, a great deal of discussion centered on protection versus restoration. This vision emphasizes an equal need for both. Establishing the vision represents only the foundation; next comes the hard work of implementing the programs to achieve that vision.

Councilor McLain expressed her support for the document. She said it would be important to make sure all the new members of the council understood the reason for doing this vision statement. She urged Metro to hold to its conviction that restoration was as important as protection. She said it would be important to keep the next task in the context of the vision and in recognition of the agreements made with our local partners. Finally, she emphasized that Metro has always kept its focus on the goal of habitat protection by promoting education and programs and not simply on developing regulations. She urged that any regulations or programs be put clearly in that context, and that Metro’s voluntary leadership and achievements in protecting habitat be acknowledged.

Chair Park expressed his support for the vision document and those who have worked on it. He thought the main value in developing the vision was in gaining the support of the main players. That would provide the necessary foundation for building good programs.

Councilor Atherton questioned the need to state that “…the objective of this program is to obtain Federal approval of this program…” He asked if the region were not committed to habitat restoration regardless of the Federal government’s requirements.

Chair Park said that statement answers a policy question raised when the Council sent a letter to the National Marine Fisheries Services (NMFS) proposing that Metro’s Goal 5 program that would answer the NMFS’s concerns about the ESA.

Mr. Cotugno said that this document states Metro’s goal to meet its own desires for preserving habitat and that associated with that in addition it hopes to obtain Federal acknowledgement for ESA purposes. However, this does not address the breadth of NMFS’s salmon-recovery plan. This document simply states that Metro’s stream-corridor program would help.

4.  GOAL 5 INVENTORY

Mr. Cotugno said the Goal 5 inventory was the next step after completing the vision process. The visioning process made it clear that many entities will be watching how this is carried out, and it will be crucial that Metro have the best data available to support the ultimate recommendations. That prompted staff to step back and make sure the inventory for Goal 5 was as accurate as possible within the limited budget and time. This has led to a major effort to upgrade the information, particularly on the vegetative corridors that are associated with stream corridors.

Paul Ketcham, Principal Regional Planner, explained the efforts underway to improve the Goal 5 inventory. He emphasized that the reason is twofold, one is to ensure that the inventory would support the letter of the law and the intent of Goal 5 as well as withstand legal challenges, the other is to build a good foundation for larger watershed planning. Most of the work will be done in-house by the Data Resource Center’s mapping resources, with Geographic Information Systems (GIS) work done by GIS planner Justin Houk. Ecotrust had been contracted as a consultant to guide the inventory’s direction and to check the technical fitness of the inventory. Ecotrust is already intimately familiar with Metro’s database.

Mr. Ketcham explained in detail the methodology and how it would improve the data collected. (Details of Mr. Ketcham’s presentation can be found in an attached memorandum from him to the Goal 5 Technical Advisory Committee, dated October 20, 2000. The memorandum has been attached to the permanent record.) He said Metro’s database would be changed to one based on a stream route system, which would allow analysis of watersheds and stream segments. The old database did not offer that capability. The smallest area of analysis would be one-acre or larger. He made it clear that the effort would not just assess the forest resource within the corridor, but also the canopy in the upland areas outside the corridors. That would save having to do that later, when watershed planning takes place.

Chair Park asked why the smallest piece of canopy was an acre and not ½ acre as with the vacant lands survey. He thought it might be preferable to keep the units consistent.

Mr. Cotugno said that any significant ecosystem along a stream corridor would need to be at least an acre; one-half acre of isolated forest canopy does not represent an important ecosystem. On the other hand, half an acre of vacant land does represent a potentially usable parcel for building.

Mr. Ketcham said that staff was coordinating this effort so as to avoid duplicating the efforts of other jurisdictions doing Goal 5 work, although some of the work of other jurisdictions could enhance this work. (see page 2 of the Goal 5 TAC memorandum, item 1 under “How our stream corridor inventory will fulfill our goals.”)

Mr. Cotugno said the goal was to bring forth a package that would consist of 1) the inventory itself, 2) an update to Metro’s science paper that defines the characteristics being sought and describes how to evaluate them and includes recent science, and 3) identifies regionally significant resources that need Metro’s attention.

Councilor McLain praised the quality of the effort. She brought up the issue of releasing technical data before the philosophical discussions have taken place and before alternative programs have been discussed. She urged staff to avoid mistakes of the past, wherein the technical data were published, before the tools for addressing them had been discussed. She recommended maintaining a parallel path whereby the public is kept apprised of policy along with the technical side.

Mr. Ketcham said those conversations had been taking place.

Councilor McLain said it was time to share those conversations with the Council.

Chair Park said this topic would be discussed at the Informal next week.

Mr. Cotugno clarified his understanding of what she was recommending—that the political discussions needed to take place while the technical work was being done. He said he was concerned about how to conduct the process to get political buy-in. He said the vision process sensitized staff as to the prescriptive steps the Goal 5 rules define. Those rules say the inventory should be done first, determine what is regionally significant, determine what is already protected, evaluate the economic and social tradeoffs, and then adopt regulations. Staff was reluctant to change the order. However, staff recognized there would be opportunities to have regulatory conversations along the way.

Chair Park asked how long it would take to map the additional, upland pieces.

Mr. Ketcham said that based on the pilot study, staff expected the entire to be completed by the end of December 2000.

Chair Park asked why the upland study would be included with this work. He wanted to know whether that part of the study was necessary.

Mr. Ketcham said work in the upland areas would need to be done eventually, and it would be more cost-effective to gather that information now. That layer could then be turned on or off to fit the analytical needs.

Mr. Cotugno said it would be necessary to delineate all the territory that touches the stream, however wide it is. Most of the territory is connected with a watercourse; very little is isolated, and the amount of work is manageable. He said that by definition far more forest canopy lies outside the UGB than would be mapped inside.

Councilor Atherton asked if the detail would allow analysis of the impact of impervious surfaces on water quality, to avoid situations like Tryon Creek, which continues to be degraded by development.

Mr. Ketcham said the data would provide the framework for undertaking that kind of analysis.

Mr. Cotugno clarified that the data would not allow actual mapping of impervious surface, but it would provide the framework for doing that. The effort discussed here would map habitat, not impervious surface.

Councilor McLain said this work was impressive; however, Metro should be doing more outreach to let the public know about the value, the uniqueness, and the importance of this work. She noted that those jurisdictions that have undertaken Goal 5 research have been letting the media know about Watershed 2000 and the inventories they are doing. Metro’s work should be out there, too, so the public understands the technical merit that underlies the policy decisions to follow.

Chair Park said it would be important to make it clear that policy decisions were being made based on the technical data; that the data were not collected to support a particular policy. It would be important to avoid the possibility of skewing the data.

Councilor McLain said Metro does a lot of work that people do not know about. She thought it was important to keep the public apprised, so they have confidence when it comes time to decide on a final product.

Chair Park asked what peer review mechanisms were in place.

Mr. Ketcham said peer review could be done on many levels, from very formal academic processes to simply having knowledgeable people review data in-house. It can also be done a number of different segments of the program, from the literature review to the mapping process. Formal processes are expensive, both in terms of time and in terms of money. In this case, the peer review function was being performed partly by the Goal 5 TAC and partly by Ecotrust, the consultants.

Mr. Cotugno said money had been budgeted for when the project reaches the program step that would allow some review of the earlier steps, but it would mainly focus on the program step. Given the lack of money to do a formal and intensive peer review, staff was relying on the free services of the Goal 5 TAC.

Chair Park suggested having MPAC review the different steps at appropriate points, to ensure buy-in from local partners.

Michael Morrissey said he had seen the vision statement process and offered his experience with other peer reviews to shepherd this discussion along.

5.  COUNCILOR COMMUNICATIONS

There being no further business before the committee, Chair Park adjourned the meeting at 5: 12 p.m.

Respectfully submitted,

Pat Emmerson

Council Assistant

ATTACHMENTS TO THE PUBLIC RECORD FOR THE MEETING OF NOVEMBER 7, 2000

The following have been included as part of the official public record:

Testimony cards

Linda Bauer