HomeMy WebLinkAboutSurface Water Work Session January 22 20131
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Whatcom County Council
Special Surface Water Work Session
January 22, 2013
CALL TO ORDER
Council Vice -Chair Bill Knutzen called the meeting to order at 10:34 a.m. in the
Whatcom County Courthouse Conference Room #513, 322 N. Commercial, Bellingham,
Washington.
ROLL CALL
Present: Barbara Brenner, Sam Crawford, Kathy Kershner, Bill Knutzen, Pete
Kremen and Carl Weimer
Absent: Ken Mann
SURFACE WATER WORK SESSION (AB2012 -024)
1. UPDATE ON EDI GRANT TO PUBLIC UTILITY DISTRICT NO. 1 RELATED TO
WATER SUPPLY PLANNING
Chris Brueske, Public Works Department, stated he doesn't need the Council to make
any decisions today. This presentation is just to give the Council information. There will be
a supplemental budget request in two weeks. In February, the contract will come forward
for Council approval. He described the background of this item and gave a staff report on
the interlocal agreement. Staff worked with the Public Utility District (PUD) and refined the
scope of work, which is what has come forward today. Only Task 3 has changed from when
it originally came forward. Now, the work in Task 3 will be conducted by the Whatcom
County Health Department. The Coordinated Water System Plan (CWSP) is under the
purview of the State Health Department, so the County Health Department will head that
effort.
(Note: Council Chair Kershner arrived and assumed the duties of the Chair at
approximately 10:50 a.m.)
Kershner stated there is a concern that the Planning Unit is not part of the process.
She asked how the administration will include the Planning Unit's work. Brueske stated the
Joint Board developed the Lower Nooksack Strategy, a plan to implement items in
implementation plan. Work has gone forward on those planning tasks. The public
involvement of the former caucuses is through the water users group, an advisory
committee that will be administered by the PUD. Anyone who wants to be involved can
have a seat at t the table to discuss their concerns and the technical items they want in the
plan. The proposal doesn't have the formal Planning Unit reconvene, but there is a public
form.
Brenner stated she disagrees. The Planning Unit should be involved. The Planning
Unit was to be the initial recommending body along the way, before the Joint Board. At
least one member of that Joint Board refused to participate. This is more private than
public. She's also concerned because the PUD is a water purveyor, so they may have a
conflict of interest. Brueske stated the CWSP update was switched to the County to
alleviate that concern. The PUD will focus on the water supply plan, for people in agriculture
and industry.
Brenner stated the PUD is in competition with agriculture and industry for water.
Surface Water Work Session, 1/22/2013, Page 1
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Brueske stated the PUD has more expertise than Whatcom County in water delivery.
It was a Joint Board request that they do that with the idea that all the initiating
governments share the work. The Lummis are doing a lot of the stream flow monitoring.
All the tasks in the Lower Nooksack Strategy are being shared among the various initiating
governments. That said, staff have discussed the future role of the Planning Unit. The
Planning Unit has a defined role in the instream flow action plan, which was never finalized,
to approve water allocations that came out of the pilot basins. The Planning Unit would
have a role in approving plans for those basins. The watershed management plan is silent
on the Planning Unit role going forward.
The issue today is what direction the Council would like to go on this. The Council
could start the Planning Unit again. It takes a lot of staff time and money to convene the
Planning Unit. It's a very arduous process and was not well- attended by all interested
parties. Another option is to continue the current plan of allocating modest staff time to
pushing the technical tasks along. Today's proposal is to push those technical tasks along
and invite all stakeholders to come together in a venue separate from the Planning Unit, to
advise the process. Continue with the technical tasks separate from the legal issue
surrounding water issues, and convene a public forum for anyone who is interested.
Brenner stated the plan may be silent in wording, but the Council first created the
Planning Unit so it is ongoing and would stay up -to -date. It is the most diverse group.
She's concerned about the proposal that anyone join the process because there won't be
equal push from all the interests.
Crawford stated the Planning Unit ensured that the voices would be heard if they
chose to be heard. He asked the amount the County spent on contracts to facilitate the
Planning Unit. There are costs to facilitating the Planning Unit. If they expect the PUD to
continue, have a mechanism by which they could facilitate, get compensated, and go
through those elaborate steps. Everyone involved in the Planning Unit is concerned that the
informal process doesn't ensure an equal voice. The guys who yell the loudest tend to
dominate the discussion. The Planning Unit had mechanisms to level the playing field. He
shares the concern, but doesn't have a solution.
Kershner asked if the Planning Unit called for these three tasks to be implemented.
Brueske stated the tasks are in the Lower Nooksack Strategy, which was the
implementation plan. These tasks need to be done regardless of how water allocation is
decided. They all need to know how much water is needed for various activities in the
county and how much is necessary in the stream.
Kershner asked if the Planning Unit specified how these things are to be done. She
asked the connection. The Planning Unit came out with a plan. Some of the items were
identified in the plan. Now they're trying to do these things, but there is a concern the
Planning Unit isn't involved. She asked what's not happening that the Planning Unit would
be involved in. Brueske stated the Planning Unit still wants to have a decision - making role
in the process rather than be advisory. The Planning Unit would like to look at and approve
the updated water budget, any groundwater work, and the water supply plan. The water
supply plan is an open process. The proposal offers all the opportunities for input from all
the various interest groups.
Brenner stated an original purpose of the Planning Unit is that the Planning Unit
would have the ability to show how broad and fair the involvement was in any potential
adjudication process.
Knutzen asked if they will get a water budget out of this process. He asked if anyone
has come out with any estimate. Brueske stated the water budget took the Utah State
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University (USU) work and updated and calibrated it. It is just a record of what water is in
the streams now. It's not about who is using what. It has an historical estimate as well. It
has information useful for water allocations. It hasn't been used for allocation decisions.
This process will result in how much water a certain community, such as agriculture, will
need. Estimates will come out of the proposal. It's all technical work, not a legal number.
Knutzen asked if the entities involved will be responsible for paying for this, or if just
the County will pay. Brueske stated the funding source is the Economic Development
Investment (EDI) fund money.
Kremen stated get to the root of the problem. There should be more involvement
from a wider array of interests. He described the background of the entire process. It was
an eleventh hour effort to save face for the legislature to deal with averting adjudication,
making it appear as if the legislature came up with a panacea for averting adjudication.
They dangled a paltry amount of money to complete the task of accomplishing the effort to
avert adjudication. He cautioned everyone that the money promised by the State was a
small fraction of what they would actually need to accomplish the goal. Some were
skeptical that they could ever avert adjudication. This is really a funding problem. This is a
State unfunded mandate. If the County had adequate funding, it would probably be able to
have more inclusion and a more representative process. Realistically, avoiding adjudication
is uncertain.
Crawford stated the council never has had a presentation of the USU analyses, in lay
person terms. He would like a presentation on the data the county got. Have a computer
generated map that shows the general data of historical and current water available.
Regarding the use of the EDI funds, he asked if there is an ag decision that it can be used
for planning purposes. He would like a review of the EDI funds and why this is a legal use.
Brueske stated this agenda item has been through the prosecuting attorneys office, who
signed off on this use of funds.
Crawford stated have legal counsel give a presentation on the legal uses of EDI
funds. He asked if water planning is an allowed use. Get that information from the
attorneys.
Brenner asked if legal counsel reviewed for substance or just for form. The money
spent on USU was the biggest waste of money because the work was faulty. The County
had to redo the work, not just update it. Think about who is going to do their studies, and
choose someone more local. Brueske stated the firm who did the update was a firm in
Washington state.
Jon Hutchings, City of Bellingham, stated there was a water budget presentation to
the Council. It's not as simple as defining what water is in the streams at a certain time of
the year. The next step is to understand the needs and how that water is allocated. Some
of that is done in the water budget by calculating crop use and home use. Tying it all
together in a picture is something they all need to spend time on.
Weimer stated the Planning Unit process was slow, frustrating, and expensive. It
was a very good process for leveling the interests. He asked if there has been any
discussion with the PUD about whether the water users group could reflect the Planning
Unit. Members of those interests groups could be invited, instead of changing the
membership. Rearrange the water users group to reflect the Planning Unit caucuses. Make
sure all the groups are represented by the end of the process. He asked if the Lummi
Nation asked for adjudication, and if this will inform that process. Brueske stated the
Lummi Nation and Nooksack Tribe have both asked for adjudication.
Surface Water Work Session, 1/22/2013, Page 3
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Jack Louws, County Executive, stated the Joint Board met last Thursday and
discussed the Planning Unit. An outcome of their discussion was that he will ask the
Prosecuting Attorney and staff to define the legal role of the Planning Unit. There is some
question about whether the County is legally obligated to have a Planning Unit. The Joint
Board will have a special meeting when he gets the result of that legal review, and then
discuss the ongoing role of the Planning Unit. The County has a role in providing data to all
the individual people and organizations in the county that have water rights. The PUD work
will provide a better database for all those different groups to use if water rights goes into
the court system. They also need to decide if reconvening the Planning Unit is wise on the
County's part. If reconvened, decide if it will be advisory or regulatory and decide on the
work plan beyond implementation of Lower Nooksack Strategy. Presented today is a mid-
level approach to moving the plan forward. The Council and the County should approve it,
but don't leave the question of the Planning Unit unanswered. In the next few months,
figure out where to go and make recommendations to the Joint Board. If necessary, put
together the budget to make that happen. There hasn't been a lot of engagement by the
public since 2010. It's time to get serious about it in 2013. He encourages the Council to
approve the contract with the PUD. The PUD is there to serve everyone in Whatcom county.
Their water right has no more validity than anyone else's. He believes in the people who
are running the PUD. The commissioners aren't organizing this for their particular benefit.
They are able to facilitate this process and provide information for everyone to use. Things
aren't going on under the table that will make the work inappropriate.
Kershner asked about the process the PUD will undertake. She asked if the PUD will
contract out this work.
Steve Jilk, PUD, said they would contract out the work. The PUD would administrate
the grant funding. The County could advise the facilitation process, but the PUD would not
do the work itself. The PUD did not lobby for this effort. The Joint Board discussed who
would take on the individual objectives. There was Joint Board consensus that if the Lower
Nooksack Strategy proceeds, they would consider what agency would be the best to take on
that expectation. The PUD will contract someone to facilitate and manage the process
leading to recommendations.
Weimer asked if the Health Department will contract out its work, and if the same
contractor could end up doing both pieces of the work.
John Wolpers, Health Department, stated the Health Department is looking at having
a consultant do the work. It is a planning document. The Health Department uses the
information for specific water supply issues it deals with, but it's a planning document. Who
would do the actual work is being discussed.
Kershner stated this process abdicates the Council's involvement in the PUD work.
Crawford stated he would like to review the USU work to see what data they actually
got.
Brenner stated no one is saying the PUD is made up of dishonest people. The PUD is
in direct competition with all the other water associations and water districts. Therefore,
the County should not put the process out that way, especially if the County didn't ask the
other water districts what the County should do.
Knutzen asked about the Lower Nooksack Plan results. He asked if there was an
agreement on instream flow. Brueske stated there were two pilot basins where a grant
would support instream flow negotiations. Some meetings were closed because they
Surface Water Work Session, 1/22/2013, Page 4
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involved attorneys and their clients. The discussions broke down, and no decision resulted.
That was when the Lummi and Nooksack Tribes requested federal adjudication.
Hutchings stated the County and other participating government roles related to
those negotiations was to provide good peer review and technical information on which
those negotiations were based, and also to ensure the playing field remained fair for all
parties at the table. The actual negotiations are between parties who have interests in
property. The County government didn't have a role in those negotiations. The
negotiations stopped. The Tribes asked for intervention to establish their instream flow, not
for adjudication of all the water rights. They're asking for clarification of their instream
flow. The question that remains is how to advance the conversation about what the other
out -of- stream uses are, what the needs are, and how that informs any future negotiations.
There are unmet out -of- stream needs in the county. The question is how to get all the
people to sit down and line those things out in such a way that they end up with a strategic
approach to carrying forward some kind of conversation that will help meet those needs. It
comes down to meeting peoples' interests. There is good information available, including
what came out of the USU study, recognizing that the management was very difficult.
However, there is good information available. The negotiations were between interests with
property rights.
Kremen stated he's disappointed in the entire process. Whatcom County was
awarded for the best WRIA process in the state and held up as a model for the rest of the
WRIAs in the state. However, the two Nations aren't at all willing to negotiate. Despite his
regard for the PUD, the PUD is a water purveyor. The County is accountable to everyone in
the county and doesn't have a perceived or real conflict of interest regarding water. Being
the lead agency would be difficult, but for appearances, it makes more sense. At the very
least, the Planning Unit needs to have advisory input. That advisory input would have more
influence with the County than it would with the PUD.
Louws stated the County administration is following the direction of the plan put
together in 2011, when the Council approved the assignment of funds to the PUD. The
administration has been working in good faith on the Council's direction. If the Council
chooses to change the direction and redo the plan, the administration will work with the
Council and the Joint Board to make all this happen. If the County decides to not work
through the PUD, he will put this on hold and work with the Joint Board to rework the plan
and come up with a budget. The work they're doing is to gather information for the users,
and the contract will result in good information.
(Note: Council Chair Kershner left, and Vice -Chair Knutzen assumed the duties of the
Chair at 11:40 a.m.)
Brenner stated have it go through the Planning Unit instead of the Joint Board.
Brueske stated the Planning Unit works for the Joint Board. He will review the
memorandum of agreement (MOA) regarding that relationship.
Kremen stated he agrees with Executive Louws that things have changed since 2011.
Back then, they didn't have the input or the concerns expressed by the different planning
units. That dynamic precipitated this change of course. There is justification to consider a
change of course.
Crawford stated he supports the PUD going forward. On task 1, find room to allow
the water users group to be the former Planning Unit. He is in favor of spending $10,000
per year for five years to facilitate the Planning Unit. Modify task 1 to use the Planning Unit
as previously formed, or use it as a model.
Surface Water Work Session, 1/22/2013, Page 5
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Weimer asked who approves the two plans. Wolpers stated the State approves the
Coordinated Water System plan. It's referenced in the Comprehensive Plan.
Brueske stated he doesn't have an answer about the water supply plan. It would be
a product of the joint board, of which Whatcom county is the lead agency.
Jilk stated the scope in the proposed interlocal agreement is clear about the work
products that the County must receive as evidence of the work being done. Those work
products will provide opportunity for the County to make payment to the PUD for the work.
Regarding the Lower Nooksack Strategy, there is one clear message the PUD will provide to
the stakeholders, which is that the PUD will do whatever the Joint Board asks to move this
work forward. The work clearly needs to be done. If the Council decides to change
direction, and the County reinstates the Planning Unit, it's fine with the PUD. In 2011, the
Council approved the use of the EDI funds, but due to concerns of the Planning Unit and
community, the Council delayed its decision. The PUD is only interested in having an open
public process that the community is satisfied with. If the process isn't inclusive and the
community isn't comfortable, the end product won't be successful.
(Note: This item continued later in the meeting to accept public testimony.)
2. SYSTEM WIDE IMPROVEMENT FRAMEWORK LETTER OF INTENT RELATED TO
THE U.S. ARMY CORPS OF ENGINEERS LEVEE PROGRAM
Paula Cooper, Public Works Department, gave an update on the system -wide
improvement framework (SWIF). Four levees not included are deficient. One levee that is
rated as acceptable is included because it may need some work, and the Army Corps of
Engineers may identify deficiencies on that levee. She will make changes to the draft letter
in the packet. The Nooksack basin is chosen as a pilot for the SWIF development process.
Their biggest issue will be vegetation. If they have to have a full variance request to vary
the vegetation, there could potentially be geotechnical investigations.
The Corps has 90 days to approve the letter. If they don't approve it before the end
of April, all the levees rated minimally acceptable will be ineligible for repair. She described
the changes in the draft letter. Diking District 2 is interested including the Sandy Williams
levee in the SWIF. She's fine with it, and will notify the advisory committee. She will revise
the statistics to include the Sandy Williams levee, if the Council supports it. The Corps
reviewed the draft letter and commented on it, and suggested minor clarifications, including
the estimated cost to implement the SWIF and how to address shortcomings in funding.
She will reference the fund balance and dedicated fund balance and potential for grant
funding.
Knutzen stated he is disappointed in the Planning and Development Services
Department process and the vegetation issue it's been trying to get permits for. He asked
the status of that. He's disappointed that the Conservation District mitigation
recommendations don't apply. He asked the permit process for Sandy Williams. There are
a lot of levees that will require some vegetation management. Get County entities to work
together in a more timely manner. Cooper stated she is looking at the Sandy Williams levee
from the flood perspective. She's making sure they've done the flood review analysis. That
will be ready to go to the Hearing Examiner once they get that information.
Brenner stated include Sandy Williams. They had to work directly with the Corps
because of an emergency. She asked if the Corps staff understands about the local needs
for vegetation. Cooper stated the decision -maker for the Corps is in Washington D.C.
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Brenner stated get the local Corps official to send a letter to Washington D.C.
Cooper stated they will be involved in this process.
1. UPDATE ON EDI GRANT TO PUBLIC UTILITY DISTRICT NO. 1 RELATED TO
WATER SUPPLY PLANNING
(Note: Discussion continued from earlier in the meeting.)
Larry Helm stated he has been waiting for his water right for ten years. Simplify the
approach. He participated in the water resource inventory area (WRIA) 1 process as the
water association caucus. After the last meeting, he talked to many people, and no one
thought it was the end of the Planning Unit. It was supposed to be an oversight committee
of the stakeholders. The Planning Department held a meeting this summer that included all
bureaucrats. The County Council said it would keep the Planning Unit because it was made
up of the stakeholders. The stakeholders and public have been taken over by the
bureaucrats. Water is critical. He doesn't want metered wells. A recent stakeholder
meeting talked about restricting water per day per cow to 20 gallons. They can't do that.
They have to have stakeholders involved for practical reasons. At the WRIA, the PUD is one
member. He protests giving the PUD money and raising their influence without Planning
Unit approval. Reconvene the Planning Unit. Give authority back to the stakeholders.
Ellen Baker stated this effort is supposed to be bottom -up. The Planning Unit role
was to be certain that the water resource situation is correctly appraised. They had the role
of giving the process integrity. The Planning Unit was central to the law. WRIA drifted into
other activities. The process has moved beyond the intent of the approved plan.
Roger Brown, Birch Bay Water and Sewer District General Manager and Planning Unit
representative of the water district caucus, stated the role of the Planning Unit in the
adopted watershed plan was not to change, and was to have four facilitated meetings per
year to consider recommendations to instream flows or to the federal tribal settlement
negotiations, legislative changes, and formal WRIA watershed management plan updates.
It wasn't just about instream flows. The Planning Unit had the role of approving changes to
the actual plan. The Lower Nooksack Strategy is a change to the watershed plan. The
County can adopt the Lower Nooksack Strategy, but it can't do so as an extension of the
watershed management plan. Regarding the Tribes' request for adjudication, they have
asserted a homeland purpose in the treaty of Point Elliott. That is a very significant
departure in decision - making about how tribal water quantities are calculated. The County
needs outside water rights counsel. They won't have a consensus process. This will be
litigated to have any validity. He's preparing to go to court. Look at it from that
perspective. In terms of budget, if the EDI fund can be used for plan updates, it can be
used for Planning Unit meetings.
John Kirk stated his perspective is about value -added agriculture. He produces
artisan cheeses at his farm. Many people in the county have value -added interests. Legal
mandates are based on needs. He hopes things can have a good faith outcome and that
decisions aren't subverted by financial kickbacks. Nongovernmental organizations are
plugged into the taxpayer stream flow. They have paid people they send over. It's not a
level playing field. In the agricultural community, they are observing a trend of water
management from the Department of Ecology (DOE) for fecal coliform management.
Marketable property rights that can be bought and sold internationally is an issue. Any
building must be mitigated. Most urbanized people are concerned about recreation, not
food. The people concerned about food can't get along. They need a process to protect
growers. That process takes time and money. Make decisions that will not suppress efforts
to grow and buy local. Government departments need to coordinate and keep the big
picture in mind.
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Chet Dow stated have legal counsel look into the role of the Planning Unit under
Revised Code of Washington (RCW) 90.82. He is concerned about whether that State law
has been adhered to in the process, especially during the last three and a half years when
the Planning Unit stopped having meetings. The public hasn't been aware of what's been
happening for a long time. Move this forward in a positive direction. He wants to know the
statutory authority for what's been going on, including for the Whatcom Integration Team
(WIT). The community values and attributes the WIT developed were scored. Independent
and rural living was scored as having no value. The Council should put all this on hold until
they get input from lawyers who know water law and define the legislature's role for the
Planning Unit.
Max Perry stated he appreciates the Council's concern about lack of input from water
users. They've had little or no input on what's going on with water use, which affects them
the rest of their lives.
Kris Halterman stated she is a small business owner. She's legally obligated to give
water to anyone who asks. The Whatcom Integration Team rated rural living as having zero
value. The membership of WIT is non - governmental. She asked how the WIT got its
authority to determine water law. The process used to score values was invalid. The
Planning Unit is supposed to determine goals and objectives for water resource
management and development. Questions include who has been marginalized by the WIT
graph, how they pay for public needs if sustainability, culture, quality of life, and green
infrastructure receive the highest priority, and independent rural living receives no value.
The outcome is flawed due to its inability to provide for the economic factors of paying for
all of this. The County Council has the authority to end this effort. It must proceed
cautiously. Carefully consider all the concerns raised today. Read the 2009 case regarding
tribal water rights.
Wes Kentch, Agricultural Advisory Committee, stated he's concerned about
conserving water. He is also concerned about the WIT, which ranked agriculture seventh
out of a list of 15 items. The agriculture community in Whatcom County is the sixth most
valuable farming community in the state. He is also concerned about the Lower Nooksack
Strategy. A major player was Peter Gill, who is not a hydrologist. Water discussions must
include hydrologists and all user groups. The DOE sat on his water right application since
1974. Now they can't find it. The estimate of 20 gallons of water per cow is erroneous.
It's half the amount of water cows need per day. Dairy cows require more than 50 gallons
per day, which includes washing down the milk tank. Get a realistic water budget. By law,
livestock can have unlimited use of water. The environmentalists bypass the issue through
the Clean Water Act. He didn't know about the water rights meeting held on Thursday until
the Tuesday before. He referenced and read from the draft record of the PUD meeting
minutes two weeks ago about the cost to develop a water budget and moving water rights.
Theresa Sygitowicz stated her family applied for water rights 40 or 50 years ago.
They haven't been processed. Continue the Planning Unit for more encompassing public
input. The people who provided the data were uneducated about Whatcom County. Be
more inclusive. Create more outreach to the agricultural community.
Skip Richards stated he sent an email this morning that counters the misinformation
from County staff. Read the documents that clarify the role of the Planning Unit by statute,
what the watershed management plan actually says, and the discussion that took place in
the Planning Unit meetings. By State law, the Planning Unit is to be operated in a fair and
equitable manner to provide direct input into the process. The staff teams were to call
meetings at least quarterly. The interlocal agreement that established the Joint Board was
to keep the Tribes in the watershed planning process. The Tribes claimed they could not
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participate in something that ordinary citizens participate in. They said they could only
work government -to- government, because all local governments are subdivisions of the
State. The agreement stated the Joint Board was purely administrative. If the Tribes don't
participate, there is no reason for the Joint Board to exist. It has no purpose according to
the statute. The Planning Unit is a decision - making body, not advisory. If they are going to
stay working under the auspices of the plan, they must abide by it. If they start a new
process, the participants won't have any faith that their input will be respected. The
Planning Unit members knew what they were talking about, and no one could get away with
anything they need. They don't need to spend money on facilitators. They were necessary
at first, but not now. The Tribes insisted the Planning Unit could not be in the salmon
recovery process.
Lorraine Newman stated water is essential to everyone. Don't come up with a water
right decision that everyone can't buy into. If the decisions are made by a group of people
who sat around a table, she won't feel secure that her water was protected.
Louws stated he thanks everyone for being involved. He and staff will consider
where they are at and continue to engage the Council. It will take years for a resolution
with the Tribes regarding water allocation.
ADJOURN
The meeting adjourned at 12:40 p.m.
The Council approved these minutes on February 26, 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, 1/22/2013, Page 9