Loading...
HomeMy WebLinkAboutres2003-064WHATCOMCOUNTY COUNCIL AGENDA BILL NO. 2003 - 226 C CLEARANCES Date Date Received in Council Office Agenda Date Assigned To Ong Dept County Council 10282083 11/52003 PublicWorks /Council Division Head'. Dept. Head: O W Prosecutor. ID 2 b Budget. Executive'. SUBJECT: Resolution ordering an election - Bertrand Watershed Improvement District. ATTACHMENTS SUMMARY STA TEMENT: Related Conan Contract 0 _ _- Should the Chile schedule a hearing?(V/N) Requested Date'. Ordering an Election to determine formation of an irrigation district to be known as the Bertrand Watershed Improvement District. RECOMMENDED MOTION (for final action): COUNCIL ACTION TAKEN 2003 - 226 C 116/2003: Approved 7-0, Res. #2003 -064 Related File Numbers: Ordinance or Resolution Number (this item only): Do:.,4 2=,O( v+ SPONSORED BY: CONSENT PROPOSED BY: CITIZEN INTRODUCED: 11/5/03 RESOLUTION NO. 2003 -064 ORDERING AN ELECTION TO DETERMINE FORMATION OF AN IRRIGATION DISTRICT TO BE KNOWN AS THE BERTRAND WATERSHED IMPROVEMENT DISTRICT WHEREAS, on September 12, 2003, the Whatcom County Council received a petition to form an irrigation district in Whatcom County; and WHEREAS, the petition met the requirements for a complete petition as outlined in Chapter 87 of the Revised Code of Washington; and WHEREAS, on September 23, 2003, the Council discussed the petition at a public meeting; and WHEREAS, following the public meeting, the County Council accepted the petition and petitioner's bond in the amount of $15,000.00, a sum double the amount of the estimated cost of forming the district, as required by RCW 87; and WHEREAS, the Council's role in the petition process is to establish the boundaries of the proposed irrigation district, establish its name, and call for an election of the property owners residing within district boundaries to determine whether the district shall be formed and who shall serve as directors of the district if it is formed; and WHEREAS, the council held a public hearing on November 5, 2003, as required by RCW 87.03.020; and WHEREAS, following the public hearing the council established the boundaries of the proposed district and approved its name. NOW, THEREFORE, BE IT RESOLVED by the Whatcom County Council that this irrigation district shall be known as the Bertrand Watershed Improvement District; and BE IT FURTHER RESOLVED that the boundaries of this proposed district shall be as set forth in Exhibit "A" to this resolution; and BE IT FURTHER RESOLVED that an election shall be set and carried out in the manner detailed in Exhibit "B" to this resolution; and BE IT FINALLY RESOLVED that the election date shall be December 9, 2003. APPROVED this 5th day of November 1 2003. T - WHATCOM COUNTY COUNCIL WH OM COU TY ASHINGTON Dana Brown - Davis, C er< of the Council Dan McShane, Council Chair APP OVED AS TO FORM: APP CiW De ty Prbsecutor EXHIBIT A (BERTRAND WATERSHED IMPROVEMENT DISTRICT) The boundaries of the Bertrand Watershed Improvement District are as follows: T.41N., R.2E. Willamette Meridian (WM) - Section 33: Lot 1; E' /z E Yz Lot 2; SE 1/4; SE 1/4 NE 1/4 SW '/4; E 1/2 SE 1/4 SW 1/4; all of Sections: 34, 35, and 36 -- T. 41N., R 3E WM - Section 31: W Yz -- T. 40N., R.2E. WM; all of Sections 1, 2, 3, 10, 11, 12, 13, 140 15, 22, 23, 24; Section 4: Lot 1; Lot 2 excepting therefrom the S'/2 W 1/2 W 1/2 NW 1/4 NE 1/4; NE 1/4 of Lot 3; S 1/2 NE 1/4 excepting therefrom the W 1/2 W 1/2 SW 1/4 NE 1/4; SE 1/4; Section 9: E 1/2 NE 1/4; Section 16: E 1/2 NE 1/4 NE 1/4; Section 21: E Y2 SE 1/4 excepting therefrom the N 1/2 NW 1/4 NE 1/4 SE 1/4 and the NW 1/4 NE 1/4 NE'ASE 1/4; Section 25: N' /2 excepting therefrom that portion lying southerly of Fishtrap Creek; NW 1/4 SE 1/4 excepting therefrom that portion lying southerly of Fishtrap Creek; N 1/2 N 1/2 SW 1/4 excepting therefrom that portion lying southerly of Fishtrap Creek; Section 26: All excepting therefrom that portion lying southerly of Fishtrap Creek; Section 27: All except the W 1/2 SW 1/4; Section 28: E 1/2 NE 1/4; Section 34: E' /2 NE 114; NW 114 NE 1/4 excepting therefrom the W 1/2 W 1/2 NW 1/4 NE 1/4 ; N 'ASE ' /4 excepting therefrom that portion lying southerly of the Nooskack River; Section 35: N 1/2 NW 1/4 excepting that portion lying easterly of Fishtrap Creek; Lot 3 excepting therefrom that portion lying easterly of Fishtrap Creek; Lot 4 -- T. 40N., R3E WM; Section 6: W' /2 Section 7: W 1/2; Section 18: W 1/2 Excepting from all of the above described parcels the following: All lands within the City of Lynden; all parcels less than two and one -half acres in size; all tax - exempt parcels. EXHIBIT B (BERTRAND WATERSHED IMPROVEMENT DISTRICT) THE ELECTION PROCESS CREATION OF THE "POLL BOOK ": The Whatcom County Assessor's Office will provide Council staff with a disk and printed list of all property owners within the boundaries of the proposed district. Council staff will use this information to create a "poll book" as follows: 1. Receive disk and printed list from the Assessor's Office. 2. Compare printed information with property maps to insure everything is correct. 3. Sort the list to remove all items that are not parcels of land (such as mineral rights). 4. Sort the list to remove all parcels of land less than 2.5 acres (at the request of the district proponents). 5. Sort the list to remove all non - taxable parcels (at the request of the district proponents). 6. The amended list will become the proposed poll book. 7. Schedule the poll book for council approval. SCHEDULING THE PUBLIC HEARING: Once the Council has approved the poll book, the election process can move forward. The next step is to schedule a public hearing on the petition. Following the hearing, the Council shall establish the final boundaries of the district, give the district a name, and order that an election be held therein for the purpose of determining whether or not the district shall be organized under the provisions of Washington State law and for the purpose of electing directors. THE ELECTION: The Council is responsible for conducting the district's formation election in a manner that is similar to the way future elections for directors of the irrigation district will be conducted. Voting will bake place by mail. For cost calculation purposes, first class postage will be used. Return postage will not be calculated, as election law does not require it. An election day of December 9, 2003 has been selected and ballots must be returned to the Council Office or postmarked by that date to be counted toward the election. THE BALLOT: Ballots will contain instructions indicating how joint ownership and community property votes are cast as well as a request to forward the ballot to the property owner if different from the person who receives it. Voting rights shall be allocated as follows: Two votes for each five acres of assessable land or fraction thereof. Ballots will be coded to indicate how many votes each is worth. The ballot shall contain the following language: "Irrigation District - YES," and "Irrigation District - NO "; and the names of persons to be voted for as directors of the district. To be counted in this election, ballots must conform to these requirements: (a) Ballots must be sealed in an unmarked envelope and delivered to the Council Office prior to 4:00 p.m. on December 9, 2003; or be sealed in an unmarked envelope and mailed to the Clerk of the Council, postmarked not later than midnight on December 9, 2003, and received by the Clerk of the Council within five days of that date. (b) The sealed envelope containing the ballot shall be accompanied by a certificate of qualifications stating, with respect to the voter, name, age, citizenship, residence, and that he or she holds title or evidence of title to lands within the district which, under RCW 87.03.045, entitles him to vote in the election. (c) The statements in the certificate of qualifications shall be certified as correct by the voter by the affixing of his signature thereto in the presence of a witness who is acquainted with the voter, and the voter shall enclose and seal his ballot in an unmarked envelope in the presence of this witness but without disclosing his vote. The witness, by affixing his signature to the certificate of qualifications, shall certify that he is acquainted with the voter, that in his or her presence the voter's signature was affixed and the ballot enclosed as required in this paragraph. The Council will appoint election officers who will be responsible to count the ballots upon their return. The Whatcom County Council is responsible to canvas the vote. I� 4 STA74 4 0� `dpi e93�s STATE OF WASHINGTON DEPARTMENT OF ECOLOGY P.O. Box 47600 • Olympia, Washington 98504 -7600 (360) 407 -6000 • TDD Only (Hearing Impaired) (360) 407 -6006 October 16, 2003 DISTRIBUTED TO OCT 24 2003 Whatcom County Council Members ALL COUNCIL MIEMBERS c/o Dana Brown- Davis, Clerk vWI COF," COUNTY COUNCIL Courthouse, Suite 105 311 Grand Avenue Bellingham, WA 98225 Dear Honorable Council Members: Your letter to Tom Fitzsimmons, dated September 26, 2003, has been referred to me for response. In your letter you request that the Department of Ecology (Ecology), at the expense of the irrigation district proponents, make any necessary investigations and file a report of our findings, together with a statement of cost, with the Whatcom County Council office at or prior to the hearing date of November 5, 2003. This letter constitutes the report of our finding and a statement of the costs. As stated in our letter from Jim Bucknell of the Bellingham Field Office, dated August 18, 2003, Ecology supports the creation of the proposed Watershed Improvement District (WID) as a means of addressing, and hopefully solving many, if not all, of the complex and contentious water- related problems in the Bertrand Creek watershed. We support the course of action identified in the petition. While we cannot guarantee that Ecology will ultimately support each and every recommendation that comes out of this process, we believe that this process, as it is being proposed, has the greatest chance of success of any effort of which we are aware. Ecology has been involved in the establishment of this project and we continue to be involved in several ways, including as a member of the recently formed Technical Advisory Team. In addition, the WID project is closely related to the ongoing watershed planning process in WRIA 1. In our view, this is an opportunity to explore a new approach to the implementation of many of the watershed plan's elements in the Bertrand Creek area, and to evaluate whether this approach could he successfully applied in other areas with WRIA 1. RC W 87.03.020 states, in part, that the notice of the petition shall be provided to the Director of Ecology "who shall, at the expense of the district in case it is later organized, otherwise at the expense of the petitioner's bondsmen, make such investigation of the sufficiency of the source and supply of water for the purposes of the proposed district, as he may deem necessary, and file a report of his findings, together with a statement of his costs, with the board of county commissioners at or prior to the time set for said hearing." 0 Whatcom County Council Members October 16, 2003 Page 2 In typical cases, the creation of an irrigation district is designed to develop a water distribution system and physically move water to the users within the district boundaries through a series of pipes and/or canals. Hence, there is a need to determine, prior to the creation of the district, whether there is an adequate supply of water for such a district to distribute within its boundaries. In this case, the creation of the watershed improvement district is a key step toward achieving a better understanding of water availability and determining whether a legal or permitted supply of water can be made available to those who are currently using water and whether it is possible to achieve environmental enhancements at the same time. Some of the key tasks of the WID related to water quantity will be to conduct an evaluation of water availability and existing use, identify all existing legal rights to the use of the waters, identify those uses without legal authority, and identify means of providing a legal supply for those users. At the same time, the WID is expected to propose comprehensive solutions to address the identified issues related to topics such as water quality, riparian habitat, and salmon recovery. Ecology expects to help guide the development of the scope of work via our participation on the Technical Advisory Team, and we expect to review technical findings developed by the WID and, in all likelihood, by consultants hired by the WID to conduct technical work. This role is essentially the same as our role in the watershed planning effort in which we serve as the lead for the State Caucus. That is, we are involved in discussions of the scope of work and in review of the final products. Because of the linkage between the WID project and the watershed planning effort, Ecology does not expect to incur significant costs in the review of these work products and is not, therefore, requesting the reimbursement of expenses incurred as a result of this project as it is currently envisioned. The Washington State Department of Ecology encourages your approval of the Petition for Formation of the Bertrand Watershed Improvement District. If you have any questions, please call Jim Bucknell in the Bellingham Field Office at (360) 738 -6244. Sincerely, Joe Stohr, Manager Water Resources Program cc. The Honorable Kelli Linville Henry Bierlink, Whatcom County Ag. Preservation Committee Ted Sturdevant, Ecology, Headquarters Richard Grout, Ecology, BFO Dave Peeler, Ecology, Headquarters Jim Bucknell, Ecology, BFO Whatcom County Agriculture Preservation Committee PO.BOx735 4nden,WA98264 Phone (390) 354 -1337. Fax: (360) 354 0948 e -mail wcaynesoriol com Ag Preserlatl.on WCAPC Board Jason VanderVeen Hew/ml Marry Maherry vice PresVMl September 12, 2003 Todd Sewell rhmsurer John Belisle acre/ary Dana Brown -Davis - Henry renk Clerk of the Council ie tra[or 311 Grand Avenue Suite 105 Raj Bathe Bellingham, WA 98225 Dale Bedlington Dick Bengen DoogUark Dear Ms. Brown- Davis; Frank De Vries With this letter, we are delivering to you a petition to form the Bertrand Creek (,mg Ene Watershed Improvement District, and two checks totaling the amount of fifteen thousand dollars (15,000) representing double the costs for organizing the District. These checks Jim leennga will serve as the bond required in RCW 87.03. It is our understanding that you will bill Dirk Holden the actual cost of organizing the District to the Whatcom County Agriculture Preservation roddJones Committee (APC), and APC will pay those costs to you. We also understand that the Bond will be called upon to satisfy those costs only in the event that APC fails in its Cun Mai obligation to pay. Ronn+mcay Sheri POQnder Additionally, it is our understanding that you will place question of the sufficiency of the Bond before the County Council at its next meeting. If questions arise Ed Pomeroy regarding the sufficiency before that time please contact me immediately. After the Robert Short County Council has made a determination of the sufficiency of the Bond, we understand Rich SHrz that you will place the petition before the Council for public hearings, and to set the Jake Simnss election for the formation of the District. Toni Thornton We appreciate the assistance that you have graciously provided to APC regarding Paul Tmutman this matter. If we can do anything to assist you with this issue please let me know; we will be happy to help. John Vandi Thank tia Henry Bierlink Executive Director Whatcom County Agriculture Preservation Committee PO.BOx735 4nden,WA98264 Phone (390) 354 -1337. Fax: (360) 354 0948 e -mail wcaynesoriol com Curt Maberry Farm, Inc. 729 Loomis Trail Road Lynden, WA 98264 Jake Maberry Packing Inc. 816 Loomis Trail Road Lynden, WA 98264 September 12, 2003 Dana Brown -Davis Clerk of the Council 311 Grand Avenue, Suite 105 Bellingham, WA 98225 Re: Bond to Accompany Petition for Bertrand Creek Watershed Improvement District Dear Ms Brown - Davis; The Whatcom Agricultural Preservation Committee (APQ is working to develop a watershed based water management program for the Bertrand Creek Watershed. A Bertrand Creek Steering Committee was appointed by the landowners in the watershed to develop a Watershed Improvement District under Chapter 87.03 RCW. The Steering Committee has prepared a petition to the County Council seeking an election for the formation of the Bertrand Creek Watershed Improvement District. RCW 87.03.020 requires that the petition be accompanied by a "good and sufficient bond... in double the amount of the probable cost of organizing the district." It is our understanding that you have determined that a bond in the amount of $15,000.00 must accompany the petition. We include with this letter our personal checks for $7,500.00 each, made payable to you, to serve as the required bond. It is our understanding that this bond will be called upon only to pay the actual costs of organizing the district and for no other purpose. Thank you for your assistance to APC on this matter. We look forward to hearing from you. C Maberry Farm Inc. Jake Maberry Packing, Inc. Curt Maberry, Pres' ent MartOvlabi ry, Pre dent Preston lGateslEINS LLP September 15, 2003 VIA E -MAIL AND US MAIL Ms. Dana Brown -Davis Clerk of the Council Whatcom County Council 311 Grand Avenue Bellingham, WA 98225 Re: Bertrand Watershed Improvement District Dear Ms. Brown - Davis: RECCE V SEP 16 2003 WHATCOM COUNTY COUNCIL At the request of Mr. Grant, we have reviewed the September 9, 2003 proposal from Maberry Farms. In our view, the proposal is not sufficient to meet the requirements of RCW 87.03.020. We have advised Mr. Grant of our views by telephone. In response to a telephone inquiry from Mr. Jim Waldo and Mr. Rob Caldwell who are representing the proponents of the formation of the District, we provided certain additional suggestions. Section 87.03.020 does not provide elaborate detail as to the nature of the "bond" required to be provided. We understand that the dollar amount of $15,000 (not to exceed) has been determined to be a sufficient estimate of the costs of the election. In our view, the purpose of the statute is to provide adequate assurance to the County that the costs of the election would be covered if it were to fail. Accordingly we suggested that the proponents elect to provide the County (a) with a letter of credit (which is a third party guaranty — in the nature of a surety bond; or (b) with a certified check (which represents that collected funds are available). In either case, the security could be structured and retained for the period of time required to assure that the costs of the election will, in fact, be fully paid. Let us know, if we may provide additional review of the collateral to be posted. Very truly yours, PRESTON GATES & ELLIS LLE By +Imu /; V Cynthia M. Weed cc: David Gran[ A LAW FIRM I A LIMITED LIABILITY PARTNERSHIP INCLUDING OTHER LIMITED LIABILITY ENTITIES 925 FOURTH AVENUE, SUITE 2900 SEATTLE, WA 98101158 TEL: 12061 623 -7580 FAX: 12061623 7022 www.prestongates . com Anchorage Coeur tl'Alone Hong Kong Orange County Portland San Francisco Seattle Spokane Washington, DC WHATCOM COUNTY PROSECUTING ATTORNEY DAVID S. McEACHRAN County Courthouse, Suite 201 311 Grand Avenue Bellingham, Washington 98225 Phone (360) 676 -6784; Facsimile 738 -2532 To: Dana Brown - Davis, Clerk of the Whatcom County Council Cc: Dan McShane, Chair Whatcom County Council From: David Grant, Dep. Pros. bm 6r Date: September 15, 2003 Re: Bertrand Irrigation District Election Petition You informed me today that the Council had received two personal/business checks drawn on Curt and lake Mayberrys' checking accounts offered as the bond required by RCW 87.03.020 for the acceptance of the Bertrand Irrigation District election petition. You mentioned that a note was attached to the checks requesting that we not cash them unless and until the funds are actually needed, i.e., if the formation election fails. Based on my read of RCW 87.03.020, and the additional advice recently received from our bond counsel, Ms. Weed, it is absolutely clear to me that this conditional offering of personal checks does not constitute "good and sufficient bond" for the purposes of that controlling statute. The offered petition and "bond" should be rejected. Acceptance of this offered "bond" would unnecessarily place the public fisc at risk in contravention of RCW 87.03.020. RE EE vED SEP 16 2003 WHATOM GOONlY NOTICE OF PETITION Petition for Formation of Bertrand Watershed Improvement District Notice is hereby given by the Clerk of the Whatcom County Council that a petition for the formation of the Bertrand Creek Watershed Improvement District shall be presented to the Whatcom County Council on 2003 at _M, and that the first hearing on said petition shall be conducted. Clerk of the Whatcom County Council RFEEQE Il AIL© 5EP 12 2003 ,:,VHMCt)M Wuht-r'r PETITION FOR FORMATION OF THE BERTRAND WATERSHED IMPROVEMENT DISTRICT TO Whatcom County Council, Whatcom County, Washington. THE UNDERSIGNED HOLDERS OF TITLE TO, OR EVIDENCE OF TITLE TO LAND SUSCEPTIBLE TO IRRIGATION, who constitute fifty or a majority of said title to land within the boundaries of the hereinafter described lands, hereby petition the Whatcom County Council of Whatcom County, Washington, for the formation of an irrigation district upon the showing of the following: 1. Description of Real Property A description of the lands to be included in the operation of the district, in legal subdivisions or fractions thereof, and the name of the county or counties in which lands are situated is as follows: SEE ATTACHMENT "A" 2. Statement of Sources of Water Supply and Plan of Improvements Landowners with existing water rights from ground or surface water sources will self supply their water. Landowners, currently using water without water rights, will acquire water rights through agreements and/or contracts with the Washington State Department of Ecology. Those new water rights will be issued to the extent that water is available for a beneficial use in a manner that is in the public interest and does not impair existing water rights. The proposed Bertrand Watershed Improvement District (WID) will prepare plans for watershed improvements including environmental restoration projects that improve instream flows, water quality and fish habitat. The plans of improvement will be incorporated into a Comprehensive Irrigation District Management Plan (CIDMP) that provides assurances, or permit conditions, from the WID to federal and state agencies that a specified array of federal and state environmental requirements will be met. Federal and state agencies will provide assurances that will be incorporated into the CIDMP that if such plans are implemented in conformance with the CIDMP, the WIT) is in compliance with its environmental obligations under the specified federal and state environmental regulations. pehtiov vmdm 3. Number of Directors and Name of District The number of directors desired for the administration of the affairs of the district shall be five (5). The District shall be known and designated as Bertrand Watershed Improvement District. 4. Purpose of the District The purpose of the District shall be for providing assurances for, and the implementation of, the CIDMP that is being developed for the Bertrand Creek Watershed. Those plans will include implementation of water quality enhancements consistent with the federal Clean Water Act; habitat improvements consistent with the federal Endangered Species Act and State Hydraulic Permit Approvals; implementation of in- stream and out -of -- stream water management practices that are consistent with existing and anticipated instream flow requirements; and implementation of on -farm best management practices. Additionally, the WID will be formed for the execution and performance of contracts and agreements with federal fish management agencies, the Environmental Protection Agency and other federal agencies as the need may arise from time to time, or with the State of Washington and its various agencies regarding water quality, quantity, fish habitat and other environmental enhancement activities both on and off farm. Additionally, the WID is proposed for the performance of all things necessary to enable the district to exercise the powers granted in Chapter 87.03 RCW. WHEREFORE, THE UNDERSIGNED respectfully pray that the Clerk of the Whatcom County Council, Washington, fix a time and place for hearing on this Petition and take all steps necessary to organize said district. Dated this day of 2003. pe6borc vmdm ATTACHMENT Legal Description Bertrand Watershed Improvement District TAIN., R.2E. Willamette Meridian (WM) Section 33: Lot l; E'' /2E' /2Lot2. SE' /4; SE' /4NE' /4SW%; E' /2SE' /4SW' /s All of Sections: 34, 35, and 36 T. 41N., R 3E WM Section 31: W '/2 T. 40N., R.2E. WM All of Sections 1, 213, 10, I1, 12, 13, 14, 15, 22, 23, 24 Section 4: Lot 1; Lot 2 excepting therefrom the S '/2 W '/2 W '/2 NW '/4 NE '/4 ; NE '/4 NE 'G NW '/4 of Lot 3; S %2 NE V4 excepting therefrom the W '/2 W '/2 SW '/4 NE' /4 ; SE '/4 Section 9: E'h NE '/4 Section 16: E %2 NE %4 NE' /4 Section 21: E'h SE' /4 excepting therefrom the N'h NW '/4 NE' /4 SE' /s and the NW '/4 NE' /4 NE 1/4 SE 1/4 Section 25: N '/2 excepting therefrom that portion lying southerly of Fishtrap Creek; NW '/4 SE' /4 excepting therefrom that portion lying southerly of Fishtrap Creek; N1/2N 'h SW '/4 excepting therefrom that portion lying southerly of Fishtrap Creek Section 26: All excepting therefrom that portion lying southerly of Fishtrap Creek Section 27: All except the W '/2 SW %4 Section 28: E' /2NE' /4 Section 34: E '/2 NE '/4; NW '/4 NE' /4 excepting therefrom the W 'h W 'h NW '/. NE %4 ; N '/4 SE' /4 excepting therefrom that portion lying southerly of the Nooskack River Section 35: N %2 NW N excepting that portion lying easterly of Fishtrap Creek; Lot 3 excepting therefrom that portion lying easterly of Fishtrap Creek; Lot 4 u ATTACHMENT A - T_ 40N., R3E WM Section 6: W '/3 Section 7: W '/z Section I8: W '/z Excepting from all of the above described parcels the following: all lands within the City of Lynden; all parcels less than two and one -half acres in size; all tax- exempt parcels. Appendix A — Bertrand WID legal descriptionl3l.doc