12 Apr Commission Meeting Minutes 3-14-22
PORT COMMISSION OF THE PORT OF EDMONDS MINUTES OF REGULAR MEETING
(In person & Via Zoom) March 14, 2022
David Preston, President
Steve Johnston, Vice President
Jim Orvis, Secretary
Bob McChesney, Executive Director
Brandon Baker, Director of Marina Operations
Tina Drennan, Manager of Finance and Accounting
Brittany Williams, Manager of Properties and Economic Development
Jordan Stephens, Port Attorney
Neil Tibbott, Edmonds City Council
CALL TO ORDER
President Preston called the meeting to order at 7:00 p.m.
All those in attendance participated in the Pledge of Allegiance to the American Flag.
COMMISSIONER ORVIS MOVED THAT THE CONSENT AGENDA BE APPROVED TO INCLUDE THE FOLLOWING ITEMS:
A. APPROVAL OF AGENDA
B. APPROVAL OF FEBRUARY 28, 2022 MEETING MINUTES, AS SUBMITTED
C. APPROVAL OF PAYMENTS IN THE AMOUNT OF $145,524.72
D. AUTHORIZATION FOR EXECUTIVE DIRECTOR TO WRITE OFF $1,942.43 AND SEND ACCOUNT TO COLLECTIONS
COMMISSIONER GRANT SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY.
There were no public comments
Mr. McChesney reviewed the draft agenda for the March 21st retreat and invited Commissioner comments and suggestions. He noted the retreat would start at 9 a.m. and the agenda would include the following:
• Strategic Plan and Mission Statement. The Commission and staff will review and discuss the Port’s Strategic Plan and Mission Statement. Prior to the meeting, staff will send the Commissioners a copy of the Port’s current Mission Statement, along with examples of mission statements from several other Ports.
• North Portwalk/Seawall Project. This discussion will include a report on permitting and more information regarding the estimated project costs. CG Engineering will share some of the engineering challenges and their cost implications. Landau Associates will provide an update on the permitting process, which is a major milestone for being able to contemplate a firm project schedule. Dennis Titus from CG Engineering will also refresh the engineering cost estimate, as the Port needs to have a better idea of the cost factors in order to pursue grant funding opportunities.
Commissioner Orvis asked about the Port’s plans for incorporating public art into the project. Mr. McChesney answered that public art is a placeholder in the project and will be addressed at the point of 90% design. One recurring suggestion has been to integrate some local, Native American artwork into the Portwalk as a way of acknowledging and celebrating that heritage.
Commissioner Grant asked when the project is anticipated to reach 90% design, and Mr. McChesney answered that can’t happen until the Joint Aquatic Resources Permit Application (JARPA) has been approved. Once the project reaches 90% design, the Port will have a better cost estimate. He pointed out that the Port doesn’t have to start the project immediately upon receipt of the permits. Subject to Financing Plan, the Port could decide to postpone the project for a few years.
• Working Lunch. This will be an opportunity for the Commissioners and staff to have an open discussion on issues they have been working on.
• Administration/Maintenance Building Project. Jackson Main will review the basic design and discuss the permit status. He cautioned that, while it might be possible to make some minor tweaks to the design, they are beyond the point of making any major changes. Another goal of the discussion is to get a better picture of how the Leadership in Engineering and Environmental Design (LEED) and Salmon Safe Certification requirements are reflected in the design, as well as their associated cost implications. One theory is that LEED Certification has become a branding exercise, since 90% of the LEED Silver requirements could be accomplished simply by following the Washington State Energy Code and City Building Code.
Commissioner Orvis suggested that the LEED discussion has been overtaken by events, and project designs can’t be significantly changed at this point. Mr. McChesney concurred. However, if the cost of the building significantly increases due to inflation and LEED requirements, it may be necessary to consider value engineering opportunities and potential design changes.
Commissioner Grant commented that it is important for the Port to have a clear understanding of the value and costs of LEED and Salmon Safe Certification. He said he has been reading about the Salmon Safe Certification, and he would like an opportunity to ask some questions of the consultants. It seems that the development and construction standards stand independently at times, and projects that are currently certified are primarily large corporations. Mr. McChesney said that, in discussions with Salmon Safe representatives over the past few weeks, he has made it clear that while the Port would be happy to pay the certification fee if the current design is determined to meet their requirements, the Port would not accept any design changes in order to achieve certification. For example, one condition they wanted to impose was that the contractor be Salmon Safe certified, which is a non-starter from the Port’s perspective. They have accepted that the Port will use an open-bid process, with the stipulation that the selected contractor will be encouraged to follow Salmon Safe guidelines.
Commissioner Orvis asked if public art would also be required for the Administration Building Project, and Mr. McChesney answered that art hasn’t been part of the permitting discussions with the City. If public art is required as part of the project, Commissioner Orvis commented that he would prefer to combine the requirement with the art that is installed as part of the Portwalk Project. Commissioner Grant asked staff to confirm with the City whether there would be an art requirement or not prior to the retreat.
Mr. McChesney advised that there is still a question about whether a traffic study and traffic mitigation would be required for the new Administration Building, which is typical for new development. The Port has taken the position that the project would simply move the building across the street so there should be no requirement for traffic mitigation or study. The City appears to be amenable, but the issue hasn’t been settled.
• Project Financing. Staff will carefully review the Cash Flow Model and attempt to perfect a financing plan for both of the large projects, and Ms. Drennan will present some options and ideas for the Commission to consider. The general assumption is that the cost of the new Administration/Maintenance Building would be paid for with cash reserves without incurring any debt, as there won’t likely be any grant opportunities to pursue. The North Portwalk/Seawall Project is estimated to cost upwards of $20 million, and the Port will need to figure out how that cost can be worked into the Cash Flow Model. In addition, Commissioner Grant will guide a discussion regarding potential grant opportunities.
Commissioner Grant said he would also like to have a discussion about Harbor Square at the retreat, and Mr. McChesney agreed to add that to the agenda. He asked Commissioner Grant to email his specific questions regarding Harbor Square so staff could prepare for the discussion. Commissioner Preston encouraged the Commissioners to email any additional questions or topics of discussion for the retreat to either him or Mr. McChesney within the next few days.
BOATYARD PERMIT – RENEWAL STATUS
Mr. Baker reviewed that in early February 2021, the Port submitted an application for renewal of its Boatyard General Permit, and the draft for the new permit came out at about that same time. On March 3, 2021 through April 16, 2021, the Department of Ecology (DOE) held a public comment period for the draft and its accompanying documents. Due to the substantial number of comments received, the DOE informed stakeholders that more time was necessary to review the statements and make the appropriate revisions.
Mr. Baker explained that every boatyard must operate under the Boatyard General Permit requirements. Due to the permit requirements only about half of the boatyards in Washington State are still in operation. Mr. McChesney added that do-it-yourself boatyards are particularly rare in the State.
Mr. Baker advised that the Port’s current permit was set to expire on July 31, 2021, but the DOE failed to meet the August 2021 deadline to unveil the new version. As a result, the 2016 permit remains in effect and enforceable. They were expecting the draft to be completed in late 2021, but the DOE pushed the deadline out further. They are currently in the final stages of the process, and a final draft is expected to be published this spring.
Mr. Baker reviewed that the Port took actions during the comment period, endorsing the Boating Coalition letter submitted by the Northwest Marine Trade Association (NMTA) and the Washington Public Port Association (WPPA) comment letters. The Port also submitted an independent letter. He summarized that the Port understands the difficulties associated with managing the requirements of the current permit, and the requirements in the draft permit will make it even more expensive and difficult.
Commissioner Grant asked if the public that uses the Port’s boatyard were notified of the comment period. Mr. McChesney answered that, while no formal notification was sent out, the users are well aware of the situation. One of the Port’s major tenants at the boatyard is very concerned, as the proposed new permit requirements would have significant cost implications for his business.
Commissioner Orvis recalled that the Port came close to shutting down the boatyard when the last permit expired because the original DOE requirements were not possible for any boatyard to meet. The DOE backed off a bit and came up with new guidelines because those demanded by the Puget Soundkeeper Alliance and others couldn’t be technologically met.
Commissioner Johnston asked if the DOE’s decision has been impacted by the substantial number of public comments. Mr. Baker answered that the DOE initially said it would take three months to review and issue the new permit, and they are well past that timeline. The boatyard industry did a great job of banding together to put pressure on the DOE. Commissioner Johnston said there have been other regulations where the criteria that had to be met were deemed to be arbitrary and capricious, and it seems like that could be the case for this permit, as well. It may not necessarily be over when the final draft comes out, and it will be important to keep applying pressure. Commissioner Grant suggested that the Port share this information with their local representatives.
Commissioner Orvis pointed out that the Boatyard and Pressure Wash Facility, which both discharge into the Sound, have separate standards. The standards for the Pressure Wash facility are not as tight because the water is treated and then pumped into the City’s sewer system. Zinc is one of the major sources of contamination for the General Boatyard Permit, and this pollutant comes from chain-link fences, roofs, brake dust, and a host of other things. However, the permit doesn’t consider the differences between these sources and the work that occurs in the boatyard. Commissioner Preston recalled Council Member Tibbott’s recent announcement that the City received grant funding to clean up on SR-104 near the marsh, as it has been determined that the roadway is a major pollutant into the marsh.
Mr. Baker shared the following three requirements in the draft permit that would have an impact on the Port:
• New Sampling Requirements. Not only will they have to test for more things, they will have to do more frequent testing. The most concerning is the copper benchmark, which would decrease from 147 ug/L to 14 ug/L. The Port isn’t aware of any science to support this new requirement, and there is no proven technology that would allow boatyards to meet the requirement without a huge investment. Even with the Port’s best source controls, this requirement would be unattainable. Commissioner Orvis noted that not even tap water would meet this requirement. Commissioner Johnston shared an old DOE adage that “dilution is not the solution to pollution.” It doesn’t matter to the DOE if you can make a great argument that contaminants coming out of the fire hose are being widely dispersed.
• New Things to Test For. New things the Port may be required to test for include turbidity, Ph and hydrocarbons. This will involve more staff time and greater reporting costs and lab fees. There is no evidence that the Port or any other boatyard has an issue with any of these three categories. The Port doesn’t handle enough acid, fuel or oil in its boatyard, which is more typical of a construction site. Turbidity is somewhat self-policing. If that number were off, it would impact the results from outfall testing for copper and zinc. It appears that the Boatyard General Permit is starting to mimic the Industrial Stormwater Permit, although the latter offers a policy called consistent containment. If you test eight cycles with no exceedance, you are no longer required to test. This policy is not included in the Boatyard General Permit, so the Port would have to test six times a year for five years regardless of the results.
• Lack of Adaptive Management. The draft permit would increase the number of samplings required in an 8-month period from 5 to 6. The DOE claims they need March as a sampling period because it reflects a high usage in the boatyard. The boatyards are arguing that, rather than increasing the number of samplings, one of the five samplings that are currently required could be moved to March. In addition, the draft permit eliminates seasonal averages and only allows six exceedances during the entire permit cycle before treatment would be required. By comparison, the Industrial Stormwater Permit allows the exceedances to reset every year.
Mr. Baker said it appears that the draft Boatyard General Permit is a mandate for boatyards to make big infiltration system investments. As currently drafted, the Port would reach the six exceedances within the first year, and the permit wouldn’t allow time to implement any changes. By contrast, time is built into the current permit for the Port to work with a consultant to come up with ideas and implement and test them.
Commissioner Preston asked if the Port would fail the tests if the boatyard were to sit empty for a year. Commissioner Orvis answered yes and pointed out that boatyards represent only a very small portion of the pollution that goes into Puget Sound. However, they are an easy target for the DOE because they don’t have the wealth that industries have to fight back. The Port participated in one of the first test projects in Puget Sound. It was determined that there was no technology that would allow boatyards to meet the requirements.
Commissioner Preston suggested that imposing requirements that aren’t possible for boatyards to meet would result in high numbers of closures. This could end up increasing the number of derelict boats. Commissioner Orvis agreed that is a possibility, but that’s not something the DOE seems to be concerned about. He expressed his belief that the DOE staff understands the situation, but they receive a tremendous amount of political pressure to make the requirements much more stringent. As boatyards in Washington close, people will take their boats to Canada.
Mr. McChesney pointed out that both the WPPA and NMTA have been involved in efforts to address the problem, and he questioned if there would be value to working with local legislators, too. Mr. Baker said the Association of Washington Businesses (AWB) and the Washington Retail Association (WRA) were cosigners on the NMTA letter. Mr. McChesney suggested that the Port could regroup with associates at the next WPPA Marina Committee meeting in the spring to find out if there is a common strategy that might help to remedy some of these impositions.
Commissioner Grant asked if there are any reasonable voices in the environmental community, and Mr. McChesney cautioned that engaging the environmental community in negotiations could backfire if you aren’t really careful. He pointed out that the Puget Soundkeeper Alliance has been very aggressive. They go after violations in order to bring about lawsuits, and they have put boatyards out of businesses when they couldn’t pay the fines. Commissioner Orvis added that their attorneys’ tactics have been to sue a boatyard, review their books and then see how much they can squeeze out in a settlement in exchange for dropping their suit. Commissioner Grant commented that grassroot tactics might be more effective.
Commissioner Orvis pointed out that Washington State law requires that ferries be built in Washington. If the draft permit is approved as drafted, there won’t be any boatyards left where ferries can be built, nor will the state be able to maintain the existing ferries.
Commissioner Johnston said there is a huge emphasis on environmental protection, as defined by individuals that know little about real environmental protection. There is a lot of politics afoot. The permit requirements will eliminate all of the smaller players and you will end up with large shipyards controlling the business because they can afford to respond. He said he finds it ironic that the copper and zinc levels that boatyards would be required to meet are probably below background concentrations in Puget Sound. In 2000, copper levels were about 240 ug/L. He summarized that the proposed requirements don’t make a lot of sense, and it comes down to applying leverage in the right places, as suggested. The AWB and other large organizations can play a significant role. Although their arguments make a lot of sense from an environmental standpoint, they are viewed by the environmental community as the bad guys. As far as working with environmental groups to address the issue, it is important to understand that most are organized along certain lines, and it isn’t necessarily to be fair in the application of environmental law. However, there are a lot of very good environmental managers, experts and attorneys from major industries, including large shipyards, that are really good at this sort of thing. He suggested that the best hope is that some of the arguments have hit their intended target and cooler heads will prevail.
Mr. McChesney noted that one of the corollary benefits of having Salmon Safe Certification for the new Administration/Maintenance Building is to show good will and build an alliance with that group. This will be another indicator to other groups, such as the Puget Soundkeeper Alliance, that think badly of boatyards based on what they do.
Commissioner Johnston commented that those involved with endorsing the letters to the DOE are probably the best friends that boatyards have. He believes the ball is in the right court, and it is now a matter of how it will be received from an ecological and political standpoint. He said he is fairly confident that the end product will be something better than the draft permit as a result of all the pressure that is being applied by big voices in the industry, including the AWB, WPPA and NMTA.
CITY OF EDMONDS REPORT
Councilmember Tibbott had to leave the meeting early due to another commitment.
EDMONDS YACHT CLUB UPDATE
Andor, Edmonds Yacht Club, reported that the Port’s presentation to the club on the North Portwalk/Seawall Project was pushed out to April. There is a lot of interest in the project, and he is sure there will be a lot of questions. Commissioner Preston noted that the club’s general meeting will be on March 22nd, and their annual crab feed and auction will be on April 2nd.
Andor recalled Mr. McChesney’s earlier comment that, once permitted, the Port has the option to postpone the start date for the North Portwalk/Seawall Project for up to three years, but the life expectancy of the existing seawall is five years. Mr. McChesney agreed that, based on the condition survey, the seawall has five more years before it enters into a more serious failure mode. While that it is not an exact number, it is the number the Port has been using to direct the design work. Once the permits are received, their shelf life will be three years, with the potential for one extension. The Port will use that time to reevaluate the condition of the seawall and make a final determination on a project start date based on the financing model.
EXECUTIVE DIRECTOR’S REPORT
Mr. McChesney invited the Commissioners to take a moment to reflect and acknowledge the service of former Commissioner Ken Reid, who passed away several weeks ago. McChesney never had an opportunity to serve under him, but Ken Reid did a lot of really good things at the Port for the benefit of the community. Commissioner Orvis said Mr. Reid served for a number of years when there were only three Commissioners (Gouge, Faires, and Reid), and he served as chair a large portion of that time. He was also the son of the founder of Reid Middleton, and was the company’s chief executive officer for a period of time. He did a lot of good things in the community that went unnoticed. Commissioner Preston announced that there would be a memorial service on April 8th at the Edmonds Waterfront Center.
COMMISSIONER’S COMMENTS AND COMMITTEE REPORTS
Commissioner Johnston reported that he attended the March 1st Economic Alliance of Snohomish County (EASC) Coffee Chat on building a community cyber defense network. The information provided underscored the same lessons the Commission is learning in their current tutorials. He said he also attended the March 8th EASC Coffee Chat on growth of suburban cities. Mountlake Terrace has done a magnificent job planning around a new downtown and the new transit center. Lake Stevens is a smaller-scale success story, mostly built around some traffic improvements along Highway 9 and a new Costco. Marysville has improved access into and around the city and has a new city center building. Marysville now has 75,000 people and is the second largest city in Snohomish County. He concluded by announcing that he would attend the March 15th EASC Coffee Chat on what clean tech means for Snohomish County. He would also attend the March 22nd EASC Coffee Chat on the legislative session wrap-up.
Commissioner Harris announced that the Communications Committee would meet later in the week, and she will also continue to participate in the communication discussions on the WPPA’s website.
Commissioner Orvis reported on his attendance at the EASC Coffee Chat on building a community cyber defense network, which wasn’t nearly as robust as the training the Port Commissioners are currently going through. On the other hand, it was well worth attending for people who haven’t given the matter much thought. He also commented that Mountlake Terrace has done a great job with its planning efforts, looking at how to control growth and limit it to areas where they want it to be. Marysville is doing a great job of planning for the future, as well.
Commissioner Orvis provided an overview of the legislative session wrap-up:
• The legislature’s recent efforts focused more on money than policy. There was record-setting tax collection and spending, as well as historic funding levels for the Community Economic Revitalization Board (CERB), broadband, etc.
• In-hand permits are no longer required to pursue Model Toxic Control Act (MTCA) funding, which makes it easier for people who want to do cleanup.
• Transportation and infrastructure funding was unusually partisan and relied heavily on transfers from the general fund and anticipated receipts from the Climate Commitment Act. As a result, many regional projects were not included, and the eastside of the state was shortchanged. Most projects that received funding have no defined time for when the funding will be available.
• A Growth Management Act (GMA) bill provides longer periods of time before comprehensive plans must be updated.
• Sweeping legislation, which did not pass, would have tied salmon recovery directly to GMA planning by requiring that public sector projects produce net ecological gains for salmon.
• A bill that would have tied greenhouse gas reduction goals to the GMA did not pass either.
• The minimum transmission speeds for broadband are now 100 mb per second download and 20 mb second upload. This essentially requires glass fiber.
• Only one of Governor Inslee’s four environmental bills was approved. The Emissions Intensive Trade Exposed Businesses Bill failed to pass but is required for the transportation bill to be implemented.
Commissioner Grant reported that he watched the Edmonds City Council’s Public Safety Committee Meeting on March 8th. Councilmember Chen suggested that the committee recommend the City do a study on whether or not the police station should be moved. The Police Chief talked about the recent crime and public safety audit, which identified approximately 90 findings. Commissioner Grant also announced that he would attend a Puget Sound Regional Council (PSRC) meeting later in the month.
Commissioner Grant said he has been involved in several cyber aspects and extremely involved with the United Kingdom’s Government. The program the Port uses comes out of the United Kingdom. What appears abnormal in the United States is very routine in the United Kingdom. The spam and phishing information is very helpful when it comes to monitoring links.
Commissioner Grant said he is working with staff to research opportunities for infrastructure grant funding for Port projects.
Commissioner Preston said he also attended some EASC Coffee Chats. He noted that Marysville had 10,000 citizens in 1990 and its population has now grown to 75,000. There are 2,200 new single-family homes under construction or in process of being built. They are looking at another I-5 interchange, too. They have 20 acres of downtown waterfront to be developed. The estuary that was mentioned is part of the Port of Everett. Mr. McChesney shared that it used to be a strawberry farm. The Port of Everett acquired the land in order to create a mitigation bank. Mitigation banks are a great concept, but it is really hard to get all of the agencies to agree on the technicalities. He is happy to see they have made progress breaching the dykes and flooding the strawberry farm. Commissioner Orvis observed that Marysville, Arlington and the Port of Everett have done a great job working together.
Commissioner Preston said he recently visited the boatyard because he heard that the Sea Scout’s boat was going to be taken out of the water. While there, he visited with a leader from Everett, who is still optimistic that something could happen in Edmonds.
Commissioner Preston announced that the Commission would recess into an Executive Session at 8:20 p.m. pursuant to RCW 42.30.110(1)(c) to consider the minimum price at which real estate will be offered for sale or lease, as public knowledge would cause a likelihood of decreased price. However, final action selling or leasing public property shall be taken in a meeting open to the public. He advised that the Executive Session would last approximately 20 minutes, and the Commission would resume the public portion of the meeting after the Executive Session. He further advised that no action would be taken after the Executive Session.
The Commission reconvened the business portion of the meeting at 8:40 p.m. to extend the Executive Session for 10 more minutes. The Executive Session concluded at 8:50 p.m. Again, Commissioner Preston announced that no action was taken during the Executive Session.
The business portion of the meeting was reconvened and subsequently adjourned at 8:50 p.m.
Port Commission Secretary