HomeMy WebLinkAboutSurface Water Work Session October 16 20121
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Whatcom County Council
Special Surface Water Work Session
October 16, 2012
CALL TO ORDER
Council Chair Kathy Kershner called the meeting to order at 10:30 a.m. in the
Whatcom County Civic Center Annex, Garden Room, 322 N. Commercial, 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 (AB2012 -024)
Jack Louws, County Executive, stated he thanks Dr. Jon Hutchings for his work at
Whatcom County over the past nine years. He is sorry to lose Dr. Hutchings to the City of
Bellingham, but wishes him well.
Frank Abart, Public Works Department Director, stated he also thanks Dr. Hutchings
for his work at Whatcom County. He appreciates his service.
The administration is going to appoint Chris Brueske to Dr. Hutchings' position. He
thanked and congratulated Mr. Brueske.
Chris Brueske, Public Works Department, thanked Mr. Abart and described his
background in the private sector and with Whatcom County.
Louws stated they all met last Friday to talk about the County's challenges and
opportunities. This is an important position that requires a specific skill set to work with the
community, staff, and the Council.
Knutzen asked the status on replacing another vacant position.
Jon Hutchings, Public Works Department, stated they are in the process of hiring a
candidate. They are also in the process of filling a vacant stormwater position.
Brenner stated she's upset Dr. Hutchings is leaving, but she really likes Mr. Brueske.
Weimer asked what position Dr. Hutchings will fill at the City. Hutchings stated the
City has been doing some restructuring and reprioritizing. The City has plans to develop a
program similar to the County's coordinated water resource inventory program (CWRIP).
He will manage certain programs at the City. The new position will give him exposure to
utility services, which the County doesn't provide. It's an experience necessary to move up
in the field of Public Works. He described today's agenda items.
1. UPDATE ON COUNTY RURAL WATER QUALITY PROGRAMS
Surface Water Work Session, 10/16/2012, Page 1
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The purpose of rural water quality programs is because of human health concerns
about shellfish and elevated fecal coliform concentrations in certain creeks and streams
around Whatcom County, many of which are in rural areas. Creeks and streams in urban
areas are handled in the County's stormwater program, as mandated by the national
pollutant discharge and elimination system (NPDES) permit.
Regarding efforts in rural parts of the county, it's clear that it takes a team effort to
deal with water quality, due to jurisdictional issues. Any effort must be accomplished with
the community. The County can't force people to deal with the problems. The County has
worked with that focus. With the help of Health Department staff and the Conservation
District, they've created a good local team.
Last spring, the Governor created a shellfish initiative to focus on areas with fecal
col iform-related shellfish problems and to clean up the waters so shellfish would become
harvestable. The State began its initiative with Skagit County, and have now moved to
Whatcom County. There is a federal and Tribal connection to the State's efforts. The
County administration is willing to participate in the State's programs within the goals the
County already set in Whatcom County. A program must be done in a way that the results
are persistent and long- lasting. The County needs a model that the community will buy
into. The County is willing to align programs and leverage efforts, but is not willing to take
on the State's responsibility regarding the Clean Water Act.
Crawford asked if this is about dairies and manure management. Hutchings stated it
is about dairies, septic systems, small farm management, and wildlife.
Crawford asked if they assume that dairy operations are the biggest problem.
Erika Stroebel, Public Works Department, stated they don't necessarily make that
assumption. The approach is to look at all the sources. Dairies are already in the nutrient
management program. There are other livestock operations.
Crawford stated he doesn't recall the Department of Ecology (Ecology) inspecting
anything but dairies. Stroebel stated Ecology will go site -by -site and look at all potential
sources. They are focusing on potential sources of bacteria on a parcel and defining how to
deal with them.
Kershner asked if Ecology is doing this. Stroebel stated it is Ecology's approach in its
shellfish initiative.
Stroebel described the water quality problems in Whatcom County and what the
County plans to do. Different isolated monitoring programs focus on specific areas and
projects. There hasn't been a comprehensive look at the biggest bacteria sources. The
community wants the County to take its programs to the areas with the problems. Staff
began to look at how other county programs were structured and found that the Kitsap
County model is the best out there. Kitsap County will annually review and rank their data.
The rank drives where they put their efforts for the year.
Whatcom County needs to look at things more comprehensively. There are 90
monitoring stations checked monthly. She described the areas being monitored that aren't
meeting or are partially meeting water quality standards. The County's process for chasing
contamination spikes wasn't effective or consistent. There wasn't a lot of success in
Surface Water Work Session, 10/16/2012, Page 2
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improving water quality. Now they are going to focus on one smaller drainage area at a
time for one year, including working with the community members.
Knutzen asked about monitoring stations on Lake Whatcom. Stroebel stated there
are monitoring stations on Lake Whatcom. Today, she is focusing on coastal drainages,
driven by recreational uses of marine waters. Lake Whatcom is a different system.
They are planning to continue routine monitoring and will continue to annually
review and rank priorities. She submitted and read from a presentation (on file) about
planned solutions.
Brenner stated she's surprised to see there are still problems in the Ten Mile
watershed.
Stroebel stated that, to engage the community, they will begin to survey community
members to find the messages that will resonate with the members of a particular
neighborhood and compel them to become invested in the County's efforts. The County will
identify community leaders and host technical workshops. They will identify best
management practices for each site and provide financial incentives. She described the
plan for implementing a regulatory backstop for egregious, uncooperative offenders. This is
about community engagement to identify problems and solutions.
Kershner asked if this effort is concurrent with Ecology's parcel -by- parcel review, and
if it would undermine the County's process. She asked if they can get Ecology off a
property owner's back while working with the County. Stroebel stated Ecology's focus will
be on other efforts.
Knutzen asked about Ecology's efforts regarding the dairy nutrient management
program. The Environmental Protection Agency (EPA) has also inspected dairies, and hasn't
found any problems. Stroebel stated she hasn't heard that they have found problems.
Knutzen asked how they justify giving them funding to do this when there isn't
evidence to support claims of dairy contamination. Stroebel stated this program doesn't
focus just on dairies. The dairy industry has much better management practices that are
working. However, there are other large livestock operations and septic problems. They
aren't looking just at dairies.
Knutzen stated it seems like they're throwing good money after bad. Hutchings
stated the point about the Ecology's presence in the County for inspection and enforcement
is a good point. The County is aligned with the Conservation District and others to not allow
that conflict to happen. There have been a lot of conversations about that very point. If
the County and Conservation District take action, they know their efforts won't work with
the community if that conflict exists. It will undermine their credibility. They don't want
that to happen.
Stroebel stated it's important to have solid data to guide the various efforts. The
County is investing in solid protocols and will continue comprehensive monitoring and
refocus existing segmented monitoring to ensure efforts go to areas with the biggest
problems.
Brenner asked if they will promote septic system classes in the Dakota Creek area.
People in that area should be encouraged to take the classes. Stroebel stated they will
Surface Water Work Session, 10/16/2012, Page 3
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provide comprehensive information on all the resources available to people in a drainage. If
people are interested in septic systems, the County will provide the information.
Brenner stated people may not be interested because they don't understand how
much it contributes to the equity of their home. The County isn't getting that message out
to the community. She asked about bacteria from geese and other wildlife. Stroebel stated
they will look at it as they work in each drainage. Each drainage has different sources and
different levels of each source. The community members must understand what those
sources are in their watershed and how to deal with them. It's about microbial source
tracking, which is costly and difficult to quantify because of the different sources. Instead,
they look at land uses to get a general idea the land uses in the watershed and the resulting
sources, including wildlife.
Kremen asked if things are generally getting better, worse, or staying static.
Stroebel stated it depends on the area.
Kremen asked if County efforts are bearing fruit. Stroebel stated they are.
However, there are rapid increases in bacteria in the main stem of the Nooksack.
Kremen stated it's frustrating. The County has made aggressive efforts to attack
and reduce the contaminant levels, even in Lake Whatcom. It seems they don't make much
progress, no matter what they do. Stroebel stated they have seen improvements in some
areas, such as Drayton Harbor. There is reason for optimism.
Mann stated a challenge is that a lot of people don't think there are any problems.
The Council recently discussed whether failing septic systems are a problem. Mr. Knutzen
said that there are no recent dairy infractions. They want to blame the geese. People in
Lynden got angry for suggesting there were contaminated streams in the area. There is a
lot of denial. The first thing the County needs to do is show there is scientific proof of
contamination. Hutchings stated they can't be successful in the long -term and change
peoples' minds unless the people understand their connection to the creek or water source.
Kremen stated most farmers have used better practices over the last several years.
It has to be demoralizing for these farmers to have made efforts and investments that
haven't been successful. Stroebel stated that's why they need to focus on one drainage at a
time. Rather than have just a few farmers make efforts in a drainage, get the majority of
folks in one drainage on board, and they'll see improvements resulting in a success story.
Then the County can move to the next area.
Brenner stated set up a system to help defend farmers from frivolous lawsuits.
That's one reason farmers don't trust government. No matter what they do, the
government sets up private parties to file lawsuits. A lot of that is just someone wanting to
get money. The farmers end up settling without making changes, just to pay someone off.
Ecology shouldn't promote these frivolous lawsuits.
George Boggs, Conservation District, stated there are 120 dairies in 145,000 acres
that have made significant progress. There are 1,200 other livestock operations, many
hobby farms, and onsite septic systems. He shares the frustration. Give credit for the
accomplishments. His staff are focused on other things because they don't have funding.
The County must have a program commensurate with challenges. A program based on
monitoring, education, and technical assistance will be the most sustainable program for the
farmer.
Surface Water Work Session, 10/16/2012, Page 4
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Kyle Dodd, Health Department, stated the Health Department plans to lead with
education first. Treat referrals from Ecology as if they were regular complaints. If Ecology
believes there are bacterial sources from septic systems, the County will inspect on a site -
by -site basis.
Hutchings stated one issue is about using land use regulation to enforce Clean Water
Act violations. There is administrative leeway in how aggressively one pursues it. Find out
if a creek is fouled, then find the likely cause. If the connection is clear between the
violation and the transgression on the land, it can be enforced under the Clean Water Act,
which promotes a better connection than the County trying to enforce buffers. Hopefully,
that balance will be better.
Knutzen asked if the acceptable levels have gotten more stringent. Stroebel stated
the acceptable levels are the same. They are seeing changing water quality. The County
has been monitoring to respond more proactively than waiting for a ten -year closure. They
are at a threatened level at some of the sites. People are trying to be proactive before it
results in another long -term closure.
2. UPDATE ON PROGRESS RELATED TO THE MANAGEMENT OF SEDIMENTS AT
SWIFT CREEK
Jon Hutchings, Public Works Department, stated the issue with Swift Creek evolved
slowly over time. There have been State and federal hurdles preventing the County from
keeping the creek open. The level of actual sediment management diminishes from year to
year. There is nowhere to put the material without risking regulation by superfund laws and
bearing an enormous amount of liability. A team of County staff and others have discussed
the real implications for human health and safety. The Health Department keeps track of
information from the Environmental Protection Agency (EPA) and State Department of
Ecology (Ecology) and understands what the sampling means. For example, a recent report
suggests that the chrysotile asbestos from Sumas Mountain is more toxic than the asbestos
in other areas. The role of the Planning Department will evolve in terms of what they do in
areas up the Sumas River and if there are best management practices that should be put in
place. The Public Works Department deals with sediment management and water. The
Prosecutor's Office and other government levels are also involved.
Recently there have been focused conversations about liability. It comes down to
whether or not the principal parties, which are the County, State, and federal government,
can agree on how to manage the material into the future via a friendly lawsuit and decision
by a judge so the State and federal government agree not to sue the County. That doesn't
do anything about third -party liability from someone who may have suffered health issues.
They can spread out the liability among the three governments and others. That puts the
State and federal government in front of any lawsuit because they have deeper pockets.
Dealing with the Department of Justice is tough. Prosecuting Attorney Dan Gibson is
still working on it. Staff recognize that the County must get this figured out. In the end,
the County government will be called if there is a flood and the stuff is spreading across
people's yards. Roads and bridges may also be inundated with the material. The County
must deal with those situations. There is an impetus for the County to participate and force
the State and federal governments forward. Taking on this responsibility will be a
legislative decision. The question, through an environmental impact statement (EIS), will
lay out alternatives for the administration to consider and the Council to make a decision.
An EIS has a beginning and end with a decision point when it's done. There will be a
recommendation. Therefore, the State and federal government will have to deal with the
Surface Water Work Session, 10/16/2012, Page 5
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situation. If there is no agreement pending and they can't get over the liability hurdle, the
EIS can be amended to acknowledge those changes.
That's the direction of the County's plan. The EIS is underway. A draft may come
out in January. Jeff Hegedus, Dan Gibson , and Chris Brueske will be the team members
involved.
Brenner stated the County isn't eligible for superfund money because the asbestos
source is natural. Hutchings stated that is correct. The EPA wants it in the superfund
program to regulate it, but the EPA isn't allowed to spend money on it unless there is an
emergency situation.
Brenner stated she hasn't seen any science that proves the material is toxic. She
wants to see the science. They did a bunch of health surveys of people in the area, and
didn't find one case with health impacts. Hutchings stated the level of risk hasn't been
adequately explored. Most people accept that being near this asbestos may cause someone
to get sick.
Jeff Hegedus, stated chrysotile is hazardous and regulated. There is risk from
breathing chrysotile. The risk is significant. It may be more toxic that the types of
asbestos in Libby, Montana or El Dorado Hills, California.
Brenner asked who is doing the study. Hegedus stated a consortium of academic
scientists are doing the study, which is in the process of being peer reviewed. They don't
know the toxicity level, but they know the level is not zero. The question of toxicity is not
something people can have their own personal opinions about. It's well - established. They
can't assume it's zero.
Kershner asked for information on the study. Hegedus stated he can provide that
information. They don't see people getting sick at Swift Creek because there is a very small
population statistically. He's glad they don't have statistical or anecdotal evidence, but that
doesn't mean people may not be getting sick.
Brenner stated she doesn't know how significant the risk is. Hegedus stated the
current recommendation is that people should stay away from the material.
Hutchings stated the County's role is to get the information out to the people.
People have personal choice about how they respond on their own property. The County
must understand these questions because the liability is about those risk management
questions.
Knutzen stated it seems like there is no evidence to support the claims being made
about it being a health hazard. It's something they've dealt with for 50 or 100 years that
wasn't a problem until someone pointed it out, even though no one could provide evidence
of a problem. It's frustrating. Property owners can't sell their properties. Farm fields can't
drain because they can't dig out the ditch. A Canadian neighbor is upset because sediment
is going into the Frasier River. He asked what has to happen for someone to finally address
this. Hutchings stated they have to change federal law.
Knutzen stated there will be a new federal representative for that district. Talk to
the candidates about the issue. Hutchings stated they can talk about that approach. The
staff have talked about whether that will be successful in a reasonable amount of time.
Surface Water Work Session, 10/16/2012, Page 6
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Kremen stated it's on been their top priority list for at least eight years. It doesn't
even get the light of day at the federal government. The federal government totally ignores
any financial responsibility at all.
Crawford stated Congressman Rick Larson was not receptive to talking about Swift
Creek.
Kremen stated he agrees. Senators Patty Murray and Maria Cantwell have also
ignored it. The federal government isn't willing to put one penny into managing something
that naturally occurs.
Knutzen stated the County has used the material on the roads and in other projects
over the last 50 years. If it was an issue, someone would have found it.
Kremen stated he doesn't know why the County must absorb the financial
responsibility. It's a federal law, not a County law. Much of the material comes from State
Department of Natural Resources (DNR) land. He doesn't know why the County ends up
having to deal with such a huge issue. The people in the county don't have the financial
wherewithal to deal with the problem.
Mann stated he shares this frustration. He studied asbestos, and is less afraid of it
than before he knew anything about it. He is willing to accept the peer reviewed studies
from the scientists. The risk isn't zero, but he's not worried about it. He asked how many
people in Libby, Montana who worked in the mines got sick or died.
Hegedus described the Swift creek study and the situation in Libby, Montana. People
who didn't work there got sick and died.
Kremen stated the EPA did their own study of 11 simulated activities. Nine of them
were found to be at acceptable levels. The most important of the 11 simulated activities
was kids playing for two hours per day for 350 days per year in this material from Swift
Creek, in a sandbox filled with the material. The level of contaminant was acceptable. The
two tests in the study that weren't within acceptable levels were just barely over the limit.
The EPA spokesperson compared the risk level to breathing the air in downtown Seattle.
That said, the County shouldn't turn it's back and say nothing is wrong, but Whatcom
County shouldn't take the lead to address the issue, which would cost $100 million to
resolve. Hutchings stated they agree. The County must force the other governments to
participate. The County government can't just accept this liability from third parties and be
sued under environmental laws by higher levels of governments, just because they want to.
There has got to be a framework.
Mann asked where the County put the material it dredged this year. Hutchings
stated the County piled the material on property it has historically used to pile the material.
When the County unburies its road, it will need a place for the material. That property was
acquired for that purpose. It was not acquired to become an asbestos repository. It's an
interim option.
3. REPORT ON SUMMER PROJECTS
Jon Hutchings, Public Works Department, stated the summer projects included a
small repair project on the Abbott levee and other projects along the river. A project was at
the Cedarville landfill. They wrapped up the Silver Beach Creek pilot project.
Surface Water Work Session, 10/16/2012, Page 7
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Kirk Christensen, Public Works Department, described the Silver Beach project. He
described the process and cost for replacing stormwater vault filter cartridges.
Brenner asked how many miles of swales they need to prevent runoff. Hutchings
stated he will look into that answer. They'll get it done. It's a matter of choosing the best
projects given the money.
Mann stated he would like to tour these facilities.
Knutzen asked if there are two of these facilities for which they're getting results.
Christensen stated the County gets results at Lahti Drive, which gets 89 percent, and Cable
Street, which gets 50 percent.
Knutzen asked if the City is doing similar work. Christensen stated it is.
Brenner stated she would like to see the City's results.
4. PRESENTATION OF PROPOSED 2013 AND 2014 BUDGETS FOR PUBLIC
WORKS SURFACE WATER DIVISION
Jon Hutchings, Public Works Department, submitted handouts (on file). Revenues
are stable through 2013, and drop in 2014, based on whether grant funds and real estate
excise tax (REET) funds will be available. The decrease in money available in 2014 will be
about 10 percent, or $600,000.
Regarding expenditures, the proposed budget is balanced, with the exception of the
Deming levee improvement project. Another capital project ready for construction is the
Canyon Creek levee. Three - quarters of the money is from the Salmon Recovery Funding
Board for a levee setback and habitat improvement. The three capital projects are Canyon
Creek, Deming, and the pre- engineering /alternatives analysis for Jones Creek. There is no
money in the budget for construction at Jones Creek.
Knutzen asked if there is money dedicated to Swift Creek. Hutchings stated there is
not. Money for Swift Creek is budgeted in 2012 and carried into 2013. There is no new
money.
Brenner asked about less REET money being available. Hutchings stated there are
fewer qualifying projects, not less money. They have steadily increasing reporting and
inspection requirements under these stormwater regulations. Those requirements can't be
financed from REET. The financing must come from the flood fund.
Mann asked about balancing the budget. Hutchings stated the budget is balanced
with the exception of a couple of capital projects over the last couple of years. One
example is the Deming levee improvement project. REET money was available and put into
a fund, which is reflected in the fund balance. The fund balance goes up and down over the
course of time, depending on whether REET money is available for a capital improvement
project, which can draw down the fund balance over a couple of years. That is the reason
for periods of increases and decreases in the fund balance. They don't spend the same
amount of money from year to year. They develop and construct big capital projects over a
couple of years. A big project is built every five or six years.
Brenner stated REET can be used for stormwater. She asked why stormwater
project funding can't come from REET. Hutchings stated there is up to $1 million from REET
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for water resource capital projects. They can have more REET funds, but there has to be an
administrative investment that can't all come from REET.
ADJOURN
The meeting adjourned at 12:15 p.m.
The Council approved these minutes on November 7, 2012.
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Please contact the Council Office to obtain an
official, signed copy:
360- 676 -6690 or council4o.w hatcom .wa.us
Surface Water Work Session, 10/16/2012, Page 9