HomeMy WebLinkAboutSurface Water Work Session February 19 20131
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Whatcom County Council
Special Surface Water Work Session
February 19, 2013
CALL TO ORDER
Council Vice -Chair Bill Knutzen called the meeting to order at 10:37 a.m. in the
Whatcom County Courthouse Fifth Floor Conference Room #513, 311 Grand Avenue,
Bellingham, Washington.
ROLL CALL
Present: Barbara Brenner, Sam Crawford, Bill Knutzen, Ken Mann, Pete Kremen
and Carl Weimer
Absent: Kathy Kershner
SURFACE WATER WORK SESSION (AB2013 -024)
2. UPDATE ON STATUS OF LAKE WHATCOM TOTAL MAXIMUM DAILY LOAD
(TMDL)
Chris Brueske, Public Works Department, stated the total maximum daily load
(TMDL) will be published on February 25. He was frustrated with the sliding deadline, so
the Department of Ecology (Ecology) extended the comment period to 90 days. The County
doesn't get to do separate comments before the public. County comments are part of the
public process. Ecology has to address each comment. He suggests that Steve Hood give a
detailed presentation at the Natural Resources Committee on the TMDL and to the full
Council for a five minute announcement about how the public can be involved, so it's on the
record. Be clear it's an Ecology initiative, not a County initiative.
Brenner stated Ecology is meeting with councilmembers individually.
Knutzen stated that in his individual meeting, they talked about the TMDL release at
the end of the month, the targeted watersheds, including Bertrand Creek, and the three
new inspectors.
Weimer stated they talked mainly about the TMDL and their new inspection efforts.
Brenner asked if the two new inspectors are just for Bertrand Creek.
Weimer stated they are for anywhere in the county. Water quality in Drayton Harbor
and Portage Bay is declining. It's part of a statewide shellfish effort.
Brueske stated staff is taking part in those meetings to share and collect data.
Ecology is starting its new inspection effort in Bertrand Creek. The County staff is
continuing its education outreach in Drayton Harbor. The new inspection effort is an
Ecology program.
Weimer stated the Lake Whatcom Policy Group asked about more county outreach
regarding the TMDL and asked if the County would hold its own public hearing on the TMDL.
He told the group that this is not a County process, so the County wouldn't have a reason to
hold a hearing. It may be good for Steve Hood to talk to the Natural Resources Committee
Surface Water Work Session, 2/19/2013, Page 1
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and the full Council at the evening meeting to give an announcement to the public about the
process.
Brenner asked if Ecology is having a public hearing.
Weimer stated they aren't. They're not required to. Councilmember Brenner may
talk to them about having a public hearing at her individual meeting.
..
Brenner stated they're probably not required to do a bunch of things that they should
Brueske asked if it's okay for staff to schedule those two presentations.
The Council concurred.
Brenner stated give Ecology more than five minutes at the evening meeting.
Clare Fogelsong, City of Bellingham, stated he asked and Ecology talked about the
County or City packaging the comments they receive and sending them to the Ecology as
part of the County's or City's comments. He's not sure the City wants to take on that
responsibility. Ecology should package those comments themselves and send them forward
to the Environmental Protection Agency (EPA).
Brenner stated the County should forward anything to Ecology that they receive.
Fogelsong stated that takes staff time and there is a cost to doing that.
Kremen stated he was assured at least three times about how fairly achievable these
goals and objectives would be, but he has doubt and skepticism about how attainable their
thresholds will be.
Knutzen stated he got the impression it will be a 50 -year plan, not a five -year plan.
Cathy Craver, Public Works Department, stated Ecology will present the TMDL
standard. Once approved by the EPA, the County enters into a five -year period of
developing a water quality clean up plan, also called a detailed implementation plan. The
County has five years to develop a plan that includes all the actions the City and County will
do to achieve improvements.
Crawford asked if they still require an 80 percent reduction. Craver stated she
believes so.
Crawford asked if the levels have to be reduced in five years. Craver stated the
County has five years to come up with a plan, associated budget, and funding sources to
accomplish the actions that will take 20 or more years.
Brenner asked why Ecology is taking comments if they have no intention of making
changes. Craver stated Ecology won't make big changes.
Kremen stated it is a false opportunity that the comments will have any impact on
Ecology's requirements. Craver stated the County compiled its comments and submitted
them to Ecology before this version.
Kremen stated Ecology took three or four times longer than they said they would to
come forward with the TMDL. If Ecology expresses an urgency now, they have been
derelict and slow in coming forward with their own proposals.
Surface Water Work Session, 2/19/2013, Page 2
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Mann stated Ecology is giving the County five years to develop a plan, so it doesn't
seem they're that urgent. He asked about the permit. Craver stated it is the national
pollutant discharge and elimination system (NPDES) phase II permit.
Mann asked what that permit requires the County to do. Craver stated the permit
requires more stringent regulations in certain urban growth areas (UGAs). Those include
stormwater requirements. When the TMDL is approved by Ecology, the County must meet
the TMDL.
Mann asked what happens if the County is out of compliance with NPDES phase II
permit. Craver stated the County would be out of compliance with the State stormwater
permit. Ecology would have some sort of repercussions for the County. It's a new permit,
so there haven't been any compliance issues before the State. Ask Ecology what their
repercussions would be.
Brenner asked if there is an appeal process. Fogelsong stated there is an appeal
process, either administrative or judicial.
Brenner stated the County should think about appealing early on. The County has
five years before anyone can file a lawsuit.
John Hutchings, City of Bellingham, stated Ecology can levy a fine for each violation,
up to $25,000 per day. The permit requirements have not been such that jurisdictions have
fallen behind yet. Being out of compliance opens the County to third party lawsuits. It's
not true that it will be five years before anyone can file a lawsuit. The TMDL is separate
from the NPDES phase II permit. At the point the TMDL is approved by Ecology and
certified by the EPA, the TMDL is rolled into the NPDES phase II, when it becomes
enforceable and actionable. They don't know if it will roll into the 2012 permit or a future
permit.
Kremen stated that if the Governor chooses, Whatcom County could be prohibited
from accessing certain State funding. It could potentially inhibit the County from receiving
funding for worthwhile projects.
Weimer stated the major concern is the possibility of third -party lawsuits. Ecology
may be more forgiving about the County being out of compliance, but someone else may
not be.
Craver stated options for rolling the TMDL into the permit are some sort of agreed
order, administrative order, or a permit modification. Modifying the permit is the least
desired option, so will have to have some sort of agreed or administrative order. The
County will have to do the TMDL water cleanup plan relatively immediately after approval of
the TMDL.
Crawford asked if the 80 percent reduction is from current loading. Hutchings stated
it 87 percent, and it is from the loading in 2003.
Crawford asked what actions would be expected of the County. He asked if the
County must address existing development and if that has a much bigger impact on the City
than on the County. He asked what the municipalities would or could do to come into
compliance. Fogelsong stated the City has 15,000 residential units. The County has about
6,000 units. There is an underlying assumption that buildout in the city is older than
buildout in the County, and that's probably where the retrofits need to occur first. The
TMDL hasn't defined particular actions, just an allocation goal. It's up to all responsible
Surface Water Work Session, 2/19/2013, Page 3
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parties to define the actions necessary to meet the goal. Ecology suggested ways to
implement actions and best management practices (BMPs), but hasn't prescribed anything.
Kremen stated he believes 25 percent of the loading comes from the Nooksack River.
If that's so, there would have to be less than zero percent reduction that comes from
everywhere else.
Crawford stated the City could develop a method to filter out the phosphorus. It
would cost a lot of money, but it would be a big fix.
Kremen stated a lot of that is naturally occurring phosphorus. He asked if the
County's approximate 6,000 residences are in Sudden Valley. Fogelsong stated it is.
Brueske asked about the County having a public hearing.
Knutzen stated wait until after the proposal comes out before scheduling a hearing.
Crawford stated don't have a hearing on something over which the County has no
control.
The Council concurred.
1. LAKE WHATCOM AQUATIC INVASIVE SPECIES MONITORING AND
PREVENTION
Chris Brueske, Public Works Department, stated the goal today is to get Council
input on to what level they want to take their program. It could be as simple as having
boat inspections or more involved as rewriting the ordinance and requiring inspections. The
City has had budget discussions on how they are going to get funding.
Laurel Baldwin, Noxious Weed Control Board, submitted and read from a
presentation.
Brenner asked if there are any native invasive species. Baldwin stated there may be
one.
Kremen stated he thanks Ms. Baldwin for all her years of service, effectiveness, and
dedication. The County has been working on loosestrife for many years. Ms. Baldwin has
done a stellar job. He asked if there has been a significant decline in the number of
watercraft on Lake Whatcom in the last five to eight yeas. Fogelsong stated the only
records he has are from the Bloedel - Donovon launch, but the records are sporadic. He's
heard that statement from others who live on the lake, but it's hard to measure.
Kremen stated there is about half the activity today than there was 15 or 20 years
ago. Fogelsong asked if the observation is throughout the year or during the summer.
Kremen stated the only boating activity is mostly in four months of the year, if the
weather is exceptional. The rest of the year, there is hardly any watercraft at all on the
lake.
Baldwin continued the presentation.
Brenner stated there should be a one -time charge for people who keep their boats in
Lake Whatcom, and charge someone if they have to have plants removed from their boats
when inspected.
Surface Water Work Session, 2/19/2013, Page 4
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Baldwin concluded the presentation.
Knutzen asked if annual permit includes a permit sticker. Baldwin stated the boats
would have stickers. Owners will have to pay annually for each boat.
Knutzen stated don't just concentrate just on Lake Whatcom. They would be missing
an opportunity for a countywide program to be effective. Sell a permit to anyone who uses
a boat in one of the Whatcom county lakes. Baker lake in July and August gets a lot of use.
If every boat from Skagit County had to have a sticker for boats used in Whatcom County, it
would help fund the program. Also, if they ignore Lake Samish, Lake Whatcom will get
infected too.
Mann asked if that's true. He asked if the species can be transported by ducks or by
other methods. Baldwin stated invasive species are mainly transferred by boats. It's not
likely to happen another way.
Knutzen asked if it's just a matter of time before all lakes are infected. If one water
body gets infected, it's more likely for the other areas.
Mann asked if they're transmitted by waterfowl. Baldwin stated that's not
documented.
Mann stated he wants to know that fact for sure. Baldwin stated it's highly unlikely,
but she can't say it will never happen.
Mann asked if otters eat them.
Teagan Ward, City of Bellingham, stated it's not likely. Focus on the pathways they
can control.
Baldwin stated she plans to survey Lake Samish this year in partnership with the
Department of Ecology.
Crawford referenced the budget page in the packet. He's disappointed the program
isn't structured so the boaters pay entirely for a program that protects the lakes from the
adverse effects of boaters. He asked why it can't be a fully self- funded program. Hutchings
stated he heard that the goal should be a self- funded program. It takes an upfront
investment to create infrastructure. The cost is greater in the first year or two than it is
further out in the future. State money has been offered to cover the upfront costs. A self -
funded program is the goal. They have estimated the revenues. They won't budget to
spend that revenue this year. In 2014, they will know the revenues from 2013, and budget
them going forward.
Crawford stated they are missing the target by at least 50 percent. Have a $100 per
year fee and $40 per day fee to come closer. The lower fee creates a legacy expense for
the County tax payers, most of whom don't boat on Lake Whatcom. It also sets up an
expectation of a lower cost by the boaters, so the County can't double it next year. Instead,
indicate that the revenue collected is to cover the cost. It's simple math. He's very
concerned about legacy expense and expectation of lower fees.
Kremen stated if they implement that suggestion, they will see another 50 percent
reduction in the watercraft activity on Lake Whatcom, which will have a positive impact on
lake health, but will significantly diminish recreation opportunities. He asked about staffing
costs. He doesn't understand dividing the staff among the jurisdictions. The vast majority
Surface Water Work Session, 2/19/2013, Page 5
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of boats are from the city of Bellingham, not the 6,000 homeowners in the unincorporated
portion of Whatcom county. He asked why the Lake Whatcom Water and Sewer District
(LWWSD) has three staff. It has less ability to generate funds than the City of Bellingham.
It's a disproportionate financial burden considering who is using the lake. Fogelsong stated
the LWWSD is part of the management program team. They provide water to their
customers around the lake, so they have a similar responsibility and interest as the City.
The LWWSD offered this funding proposal, and the program suggests using the funding on
three staff positions. The budget material doesn't show the City's existing full -time
coordinator, which is their third position. The County also provided Laurel Baldwin.
Kremen stated these are additional costs, and don't reflect what they're already
doing. He agrees with Councilmember Knutzen's proposal to allow the annual fee be
applied to all County lakes. However, some boaters will only boat in Toad Lake, for
example. Limit it to the lake they use, not every lake in the county.
Mann stated there are potential launch points around the county. It may be easier
to set up checkpoints at county entrances. If from the ocean, the clams are dead, so they
don't have to do anything with that. If at a Canadian border, they can add the program at
the existing checkpoints. There are only a few entrances from the south. If out -of- county
boats are the biggest threat, it's easy to narrow down where they're coming into the county.
Have checkpoints on the road. He realizes it would be complicated. There are maybe six
entrances from Skagit county. That is better than using hundreds of access points around
all the lakes in the county. Hutchings stated they recognize there has to be a layered
approach to the solution. This was discussed before. It is an inter - jurisdictional problem. A
piece of legislation at the State senate is trying to get at how to do that for regions of the
state. There have been ongoing conversations among the people developing the local
program toward that end. He suspects they'll get there in the future. They already do
agricultural inspections at a variety of places around the state, including the border with
Idaho. There's no reason other than money that can't be done at the local level.
Mann stated Washington State doesn't take it as serous as Whatcom County.
Hutchings stated the State has a lot on its plate.
Mann stated he hears that it might be too complicated, but there are much fewer
access points at the borders than at the lake.
Weimer asked if they've considered the costs of expanding the program to other
lakes. That expansion may be cost prohibitive. They can't bill people at Baker Lake just to
make money if they're not getting an inspection. People will think they're just the money
source. He asked if it's possible to expand the program. Brueske stated the $30,000 cost
for two seasonal people is available already in the budget. If they want to go forward into
Lake Samish or countywide, deal with private boat launches, and increase sheriff
enforcement, there is not yet a funding source.
Weimer asked if they've done a risk analysis that shows the amount of risk that will
be removed by this program. Fogelsong stated the original risk assessment considered
water quality in the lake, movement out of state, and other factors. Success depends on
whether they influence the behavior of people who may be traveling out of state. The
question is whether they can intercept them successfully at the launches. Most people just
traveling through will probably go to the first place that shows up on the Google map, which
is Bloedel- Donovan. A concern is the launch at South Bay because it's the closest launch
from the south. That's why the County has been looking for solutions to the problems at
that location. It's a matter of whether they are intercepting 85 percent of the boats and
decreasing the risk by a certain amount. Most launches aren't a risk, because the people in
Surface Water Work Session, 2/19/2013, Page 6
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Whatcom county never travel out of state. Unfortunately, no one is able to target just the
ones that have left the county and are coming back from an infested water body.
Mann stated his idea does that. His idea is how they catch people coming from
outside the county.
Crawford stated enforcement comes from the sticker. If one doesn't have the
sticker, they're in violation. They aren't going to catch people who come into the county or
launch at 2 a.m. They will catch people who don't have the sticker, which requires people
to sign a document and have an inspection. If in the lake without a sticker, the boaters
have to pull the boat out and pay a fine. There are too many times that they can't cover.
Regarding the fee, the fees at Big Bear Lake in California is a better, self- sustaining fee
structure.
Weimer asked the demand on Big Bear Lake.
Crawford stated he doesn't know.
Kremen stated he talked to all legislative members in Olympia as the legislative
steering committee member for the Washington State Association of Counties (WSAC).
With the Executive, Bellingham Mayor, and Port of Bellingham officials, they issued a
priority sheet that included this issue, in case there is any available funding for augmenting
these efforts.
Brueske asked if the Council should go ahead and rewrite the ordinance for Council
review. The current ordinance does not require inspections. If this is what the Council
wants, staff would rewrite the ordinance and an update the unified fee schedule.
Brenner asked how much more likely a motorized boat than a non - motorized boat
will bring this stuff into the county. They seem to be going after a targeted group of people
rather than treating everyone the same. Otherwise, this isn't fair.
Mann asked the scientific basis for that recommendation. Baldwin stated non -
motorized boats are more likely to be hauled out and dried, don't have compartments, and
it's easier to launch a hand carried kayak anywhere on the lake. Outside of outreach, they
don't know how to police every piece of the lake.
Knutzen stated there are no motorized boats on Lakewood, where it started.
Baldwin stated they don't have evidence that the species started with Lakewood.
Brenner stated infestation can happen from non - motorized boats. Baldwin stated it
can, but it's not likely. They are trying to target the most likely source.
Fogelsong stated Lakewood has sailboats that travel throughout the northwest. It's
likely one of the regattas in Lake Washington or another lake infested with Asian clams in
Washington was carried to Lakewood. That's not the same mechanism they are looking at
with the other mussels. There's no clear evidence that's how the infestation happened, but
they can make an assumption that the sail boats had a role in infesting Lakewood. Sail
boats and other open watercraft will dry out during their transport back from an infested
lake. They are not as significant. Also, they are trying to get the program up and running
this year. They will see if education is working with the non - motorized population. If they
need to pay more attention to the non - motorized watercraft, they will do that next year.
Knutzen stated they have a regatta on Lake Samish weekly in the summer. Those
are boats on the lake every week. It's unfair to allow them a free pass while charging
Surface Water Work Session, 2/19/2013, Page 7
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everyone else. Ward stated sale boats on a trailer will be charged a fee. Hand carried
boats such as kayaks will not be charged. They are also considering days at Bloedel-
Donovan when all non - motorized will have to go through inspections.
Brenner stated that if they really want to do this, the fines for finding infestations
should be high. It seems like they want to collect fees from people who use the lake most
rather than those who cause the problem.
Mann stated he has no problem charging a fee to non - motorized craft. He is fine
with having high fines.
Brenner stated charge a higher fine for pulling plants off boats.
Brueske asked if there is consensus for staff to begin rewriting the ordinance. At
that time, they can figure out the issues such as the fines and sticker program.
The Council concurred.
Greg Brown stated they didn't find much in the boat surveys. The findings were low.
He agrees with Councilmember Crawford. Rather than increasing prices to make the people
pay for the program, but make the program only what they can afford. Don't take the
money from the general public. He and boaters prefer to put their fee money into the effort
into eliminate these things rather than prevent something that they know will happen
anyway. Solve the problem rather than putting a Band -Aid on it. Last, he objects to
including nongovernmental organizations (NGOs) like the Puget Sound Partnership in this
agreement to do anything with their inland waters.
Knutzen stated the $50 annual fee is fine. They subsidize all the other recreational
user groups, including hiking, biking, and equestrian users. It is unfair to identify boaters.
ADJOURN
The meeting adjourned at 12:15 p.m.
The Council approved these minutes on March 12, 2013.
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Please contact the Council Office to obtain an
official, signed copy:
360- 676 -6690 or council &o.w hatcom .wa.us
Surface Water Work Session, 2/19/2013, Page 8