HomeMy WebLinkAboutSurface Water Work May 14 20131
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
Whatcom County Council
Special Surface Water Work Session
May 14, 2013
CALL TO ORDER
Council Chair Kathy Kershner called the meeting to order at 10:40 a.m. in the
Whatcom County Courthouse Fifth Floor Conference Room #513, 311 Grand Avenue,
Bellingham, Washington.
ROLL CALL
Present: Barbara Brenner, Sam Crawford, Kathy Kershner, Bill Knutzen, Ken
Mann, Pete Kremen and Carl Weimer
Absent: None
SURFACE WATER WORK SESSION (AB2013 -024)
1. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PHASE
II PERMIT
Cathy Craver, Planning or Public Works Department, submitted and read from a
presentation (on file, exhibit A).
Brenner asked if the permit program areas will come before the Council. Craver
stated some will come to the Council. These are sections in the permit. Some things are
ongoing administratively. Other things will come forward to the Council. She referenced
and continued the presentation on the stormwater management program (SWMP) (on file,
Exhibit B and in the packet).
Knutzen asked if the County is receiving financial assistance as a permittee. Craver
stated the County received grant money from the Department of Ecology. The County is
not now a new permittee, but it has an expanded area of coverage, which is Birch Bay.
There are funding options to help build programs.
Christina Maginnis, Department of Ecology, stated the State legislature approves
capacity money every year. Phase I or phase II jurisdictions have been given $50,000 or
$75,000 as part of the State budget for operating money to implement these permits at the
jurisdiction level. The legislature also awards competitive stormwater awards for
construction projects that are stormwater retrofits for flow control and treatment or for low -
impact development construction projects in the phase I and phase II jurisdictions.
Knutzen asked if Whatcom County can lobby the Puget Sound Partnership for
additional funding for its low impact ordinance. Maginnis stated she's not aware of any
money that's come from the Puget Sound Partnership. There is federal money through the
National Estuary Program that DOE and the Partnership have managed jointly for local
jurisdictions. The County received a recent award from the National Estuary Program for
stormwater pre- design in Birch Bay.
Surface Water Work Session, 5/14/2013, Page 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
Kershner asked for background summary of the national pollutant discharge
elimination system ( NPDES) program in general and why the County is doing this. Craver
stated the Environmental Protection Agency (EPA) created the NPDES to deal with
stormwater runoff from urbanized areas. The County is a phase II county. Phase I is for
municipalities over 100,000 people. In 2007, the County has had to adhere to this State
permit. She displayed and described a map of the phase II areas in Whatcom County.
Whatcom County must manage the stormwater sewer systems of those areas, including
education and outreach components and development. Whatcom County is a small
municipal stormwater storm sewer system (MS4) and responsible for any conveyance
system, such as catch - basins and ditches. The permit states the County must comply with
the program areas in specific ways. The County must report back that it is adhering to the
requirements of the permit. The County's first permit is ending and the County is starting a
new permit in August, when permit requirement changes will apply. It's a State permit.
She continued the presentation on the 2012 compliance highlights. One new requirement
for new development after December 31, 2016 is that the development, including single
family homes, will have to have a maintenance plan in place and demonstrate annual
inspections on all best management practices (BMPs) and stormwater facilities for treatment
or flow control, to make sure they're functioning properly. That is for the NPDES area, not
countywide.
Brenner asked if someone will have to inspect someone's residential stormwater
facility. Craver stated this information is just about the new requirements. They haven't
yet determined how the County departments will implement those requirements. They have
three years to develop a plan. Departments will have to come up with a plan for funding
and resources, how the plan will operate, what will be required, and how the reporting
actually happens. This is a State permit requirement.
Kershner asked who makes those requirements. Craver stated the Department of
Ecology makes those requirements.
Weimer asked if this applies to development that occurs after 2016 only, and if a
stormwater facility developed in 2015 wouldn't need the annual inspection. Craver stated it
wouldn't need the annual inspections, but the County would have provisions for education
and outreach to ensure those were maintained properly.
Kremen asked what administrative code or law enables the State to make those
requirements. Maginnis stated it is a condition of the statewide permit that is adopted into
the County's local code. The State is following the federal requirements of the Clean Water
Act. The State's interpretation under the phase I and phase II permits is about these local
conditions.
Craver stated it is in Revised Code of Washington (RCW) 90.48.
Kremen asked if existing development is ignored. Craver stated it's not ignored.
The language in the permit requires the County to have provisions to address stormwater
issues in the phase II areas, regardless. For example, staff would do outreach to
homeowner's associations and give them resources to manage their stormwater facilities.
Anytime there is an issue with a facility that is not functioning properly and the
County is notified, the County is required to address the issue. The County is not required
to inspect everyone's facilities prior to that date, but the County must make sure the MS4 is
properly managed, which includes having education, outreach, and provisions to make sure
homeowners are maintaining their homes properly. As of January 31, 2017, they will be
required to do the annual inspection.
Surface Water Work Session, 5/14/2013, Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
Crawford asked what is defined as a facility. Craver stated it is whatever is approved
as the home's stormwater management facility. There is some flexibility in how the
departments will enforce this. For example, an inspection schedule can be moved to longer
than one year if there is a reason to do so. They are able to consider variables and create
policies with flexibility. It's the County's responsibility to report that with proper reasoning
to Ecology.
Crawford stated the inspection regimen seems impossible after several years. He's
hazy about who does and pays for the inspections. Craver stated that has yet to be
determined. These are the requirements. She must coordinate with the other departments
to answer those questions and develop programs. It is up to the departments to decide
what resource are needed.
Brenner asked what happens with any new single family developments that don't
need stormwater facilities because of their location. Craver stated it's not that they don't
need the facilities. They would meet the requirements that are fairly easy. There has to be
some sort of reporting mechanism.
Crawford asked the overarching purpose of all this. Craver stated the purpose is
ultimately to have the stormwater and MS4 managed properly for water quality. The State
will monitor whether the regulations and plans actually improve water quality.
Brenner stated she understands that some people may have to show how they're
dealing with stormwater runoff, but the requirements are overkill for development that has
stormwater that is naturally absorbed on the property. It will be money spent on having
someone do that, when there are other real big problems. Focus on the reasonable
problems. Craver stated those are the types of things the departments will address when
handling the inspection requirements. If someone is using some sort of adequate
dispersion, the inspection report will probably be close to nothing. It may just be a
statement that the vegetation is intact and working properly. They can't decide what that is
at this point. Leave that to the departments that will do inspections. The Planning
Department and Engineering Division of the Public Works Department are the two
departments that approve permits.
Brenner asked if onsite septic systems (OSS) are part of this. Craver stated it's not
specific unless a malfunctioning OSS causes some sort of problem with runoff or MS4.
Kremen stated he is the County representative on the Washington State Association
of Counties (WSAC) Legislative Steering Committee, which made this a high priority issue.
Even the most liberal of counties were unanimous in requesting the legislature to extend the
timeline to meet these stringent, aggressive requirements. Unfortunately, they were unable
to get the legislature to extend that timeline. All 39 counties in Washington state are
seeking to have the timelines extended.
Craver continued the presentation on the expanded coverage area.
Kershner asked if there is a fee related to any reports made. Craver stated that if
related to development, the Planning and Development Services Department will respond
and investigate. If there is an egregious act worth pursuing, the department has a
mechanism for fees.
Surface Water Work Session, 5/14/2013, Page 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
Brenner asked if illicit discharge complaints are made to just the County, or if people
are also complaining to the Department of Ecology. Craver stated reported calls so far are
specifically for phase II areas. There is a mechanism for response that goes through the
Department of Ecology, which will report to the appropriate jurisdiction. It's limited to
phase II areas. She continued the presentation beginning with the Birch Bay Watershed
and Aquatic Resources Management Advisory Committee and other boundary adjustments.
Kershner asked if the Cities have permits. Craver stated the Cities have their own
permits. This is just about the unincorporated area.
Crawford asked if the County has some discretion in determining where these areas
are. Craver stated they don't determine where the areas are. In certain areas, the County
can take a closer look to see if the areas are contributing to the County's MS4 in a way that
the County should continue them on a maintenance and inspection schedule.
Crawford asked if the Council decided a few years ago to include some parts of the
Lake Whatcom watershed that weren't originally part of the NPDES. Craver stated that's
correct. The provision for the illicit discharge detection and elimination (IDDE) ordinance
applied to the entire watershed. The map shows the entire area that is following the
permit. One component of the permit was the IDDE ordinance, which applies to the entire
watershed. The area is not shown on the permit area map, but if an illicit discharge is
detected and reported in that area, the County reports it to Ecology.
Crawford asked if the changes are the result of census data and population data.
Craver stated the changes are due to criteria changes at the federal level. It wasn't all
based on population. There are many criteria.
Mann stated the Cities of Bellingham and Ferndale have separate coordinated
stormwater systems without a lot of outfall or discharge points. However, the County has a
large network of stormwater systems. Inspection, maintenance, and monitoring could be
labor intensive and expensive. He asked if decisions about implementation and paying for it
will come to the Council. Craver stated the County currently has an inspection and
maintenance schedule for the NPDES phase II areas. At a later date, the departments will
have the responsibility for those programs and will talk to the Council about them.
Kershner stated many of the permit areas are in areas where they've shut down
development through the Rural Element.
Weimer asked about areas like Columbia Valley which have a high population density
but aren't included. Craver stated they weren't looked over by Ecology as an area to bring
in due to other factors. Birch Bay discharges into an impaired water body.
Kremen stated the Association of Counties collectively weren't necessarily against
this program. All counties have significantly reduced to varying degrees their workforce.
Whatcom County has reduced its workforce by 15 percent in the last three years. For the
record, the counties aren't against having these more stringent environmental regulations.
They just want the legislature to be realistic about the counties having the ability to meet
the stringent, aggressive requirements. He's not saying these goals and objectives aren't
laudable. Most counties believe they are, but they also want the legislature to be realistic
about what can and can't be achieved in a certain timeframe.
Craver continued the presentation on the Lake Whatcom total maximum daily load
(TMDL) and the regional stormwater monitoring program (RSMP).
Surface Water Work Session, 5/14/2013, Page 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
Knutzen asked if the permit applies to any tribal lands. Craver stated it does not in
Whatcom County. Other jurisdictions have some overlap.
Maginnis stated the tribes are federal entities. Therefore, the EPA would issue their
phase I and phase II permits. Region 10 has not issued any NPDES permits for federal
tribal land, but is working with the Tulalip Tribe.
Knutzen asked who does monitoring if the County opts into the RSMP. Craver stated
the Department of Ecology will hire a consultant.
Kershner stated the DOE hands rules to the County, which are ridiculous, but offers a
solution to do the work if the County pays them. It seems they should just do the
monitoring and not take $52,000 from the County. Craver stated they are using that
money to find out the effectiveness regionally throughout the Puget Sound. Staff will go
through the process of comparing the cost of opting in with the cost of opting out and
meeting requirements on their own.
Kershner stated they should have figured out what they want to achieve before
implementing this permit, so they don't have to do the pilot after they make requirements
on all the counties.
Brenner stated it's not much money, but it's too open -ended and there could be
ramifications that are out of their hands locally if the County opts in.
Craver concluded the presentation regarding schedule and actions.
Brenner stated Washington State University (WSU) Cooperative Extension's master
gardener final certification project and Western Washington University (WWU) student
projects could include providing outreach to the public.
Crawford stated the Lake Whatcom south intake for the City of Bellingham diversion
provides approximately 25 percent of the lake's phosphorous. He asked why that amount of
phosphorous is not reduced and whether the County has any jurisdiction over that. He's
concerned about what it says to the other property owners when they aren't doing anything
about this source. He asked for the City to make a presentation to the County Council or do
something about one - quarter of the phosphorous going into the lake. No one is talking
about it. A private citizen has videos of the phosphorous going into the lake at that area.
Everyone should look at them.
Brueske stated he will look into getting a presentation from the City.
Crawford stated it's estimated that it will cost $10,000 to $20,000 per lot to remove
approximately one teaspoon of phosphorous per year per lot. They are aware they are
dumping almost 2,000 pounds of phosphorous into the lake, but aren't saying anything
about it. He's trying to understand why this isn't being addressed.
2. UPDATE ON THE SWIFT CREEK SEDIMENT MANAGEMENT ACTION PLAN
Roland Middleton, Public Works Department, submitted and read from a handout (on
file, exhibit C) and gave a staff report on what the County will do with the actual landslide if
they address the liability issue regarding the Environmental Protection Agency (EPA) Toxic
Substances Control Act (TCSA) and Washington State Model Toxics Control Act (MOTCA).
Surface Water Work Session, 5/14/2013, Page 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
He referenced the Swift Creek Sediment Management Action Plan (SCSMAP) and described
the phase one and phase two projects.
The Council may adopt by resolution the SCSMP, phase one, and phase two projects
on June 18, 2013, conditioned on a satisfactory resolution of the liability issue in the
Consent Decree and available funding. They are not identifying any funding to take care of
these multi - million dollar tasks. That funding will have to come from the State legislature
and federal government. The County will be able to manage contractors and the design.
The final EIS is coming forward to the Council soon. It includes a health impact
assessment. It is not an opinion statement. If the resolution of liability doesn't happen, the
plan won't happen and they won't build anything out there.
Knutzen asked which property the County already acquired. Middleton stated the
County acquired the Parker property.
Knutzen asked if anything has been done with the other properties. Brueske stated
the EPA approached Great Western about that land for those large basins. Their attorneys
are in discussion now.
Brenner asked for information on the resolution of liability. She never thought the
County had liability. Brueske stated the County's position has been that this is a naturally -
occurring problem. It's not reasonable for the County to have any kind of liability or solely
try to address this problem on a larger scale, without federal and state assistance as team
members sharing liability. There is a lot of talk about a general framework for a consent
decree, which is the regulatory mechanism by which they would be given coverage from
MOTCA in exchange for the County's part of the upcoming work. County Senior Deputy Civil
Prosecutor Dan Gibson has been heavily involved with their attorney. The County
administration has been clear that there needs to be some strong language about who else
will be liable. The State and federal agencies have done a lot of this work. Not just the
County has been dealing with this for many years. They are waiting now for EPA to give the
County draft language on the consent decree. There would be an environmental trust set
up, where the three parties would be trustees and jointly manage the operation and
resolution of this system.
Middleton stated the Executive makes it clear that this plan will only move forward
when the liability issue is resolved and when there is available funding.
Brueske stated phase two has the potential of having quite a bit of benefit to the
problem without incurring any so- called liability from the federal government. If they can
move the creek and reduce sediment transport capacity of the whole system, without
touching the material again, it might provide a benefit even if liability is never figured out.
It's unlikely this will make the federal Superfund list. There has been preliminary talk of
what the federal government may contribute in terms of money.
Mann asked how many comments they received on the draft EIS. Middleton stated
they received a couple of dozen comments. Nothing was unexpected.
Mann asked if those comments were the source of the idea for rerouting the north
fork. Middleton stated the idea was already discussed, and they kept coming back to the
idea through the process of writing the EIS.
Surface Water Work Session, 5/14/2013, Page 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
Kremen stated he and the Executive went to Washington D.C. with a short list of
requests from the Congressional delegation. They both spoke to Senator Cantwell,
Congressman Larson, and Senator Murray's staff, as well as Congresswoman DelBene. The
short list of requests included Swift Creek and stormwater in Lake Whatcom. Most of the
slide is coming from State Department of Natural Resources (DNR) land, and these are
federal regulations. Therefore, the County bears no liability. The County left itself
vulnerable from past work to dredge and stockpile this contaminated material and let people
take that material for use in construction projects, including the major bridge project at
Nugent's Corner. That's where the County is most vulnerable for liability. For the past four
or five years, the County requested that the federal government allocate significant
resources to deal with the issue. He's encouraged by the phase two project plan, which
may help to address the problem. Middleton stated he approached this in the same way as
the issues at Canyon Creek and Glacier Creek. They are similar situations with alluvial fans
and sediment that comes down the creeks. The County has tried to help the citizens over
the past 40 years to keep them from being buried by the sediment. This location happens
to have naturally occurring asbestos, and it must be handled appropriately. It's really just a
sediment problem, which the County handles.
Brenner stated there is no consensus that this type of asbestos causes the same
types of problems as industrial asbestos.
ADJOURN
The meeting adjourned at 12:00 p.m.
The Council approved these minutes on June 18, 2013.
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Please contact the Council Office to obtain an
official, signed copy:
360- 676 -6690 or council(g-,o.w hatcom .wa.us
Surface Water Work Session, 5/14/2013, Page 7