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HomeMy WebLinkAboutSurface Water Work Session February 17 20091 Whatcom County Council 2 Special Surface Water Work Session 3 4 February 17, 2009 5 6 Council Chair Seth Fleetwood called the meeting to order at 3:05 p.m. in the 7 Whatcom County Civic Center Annex, Second Floor Meeting Room, 322 N. Commercial, 8 Bellingham, Washington. 9 10 11 Present: Absent: 12 Barbara Brenner None 13 Bob Kelly 14 Carl Weimer 15 Laurie Caskey- Schreiber 16 L. Ward Nelson 17 Sam Crawford 18 19 20 SURFACE WATER WORK SESSION (AB2009 -024) 21 22 1. BIRCH BAY APPROACHES TO SHELLFISH RECOVERY EFFORTS 23 24 )on Hutchings, Public Works Department, stated there are new finding that affect 25 how they manage the watershed district. 26 27 Scarlett Tang, Public Works Department, submitted handouts (on file). She read the 28 handout on the Birch Bay Shellfish Closure outline. There are 500 to 600 onsite septic 29 systems (OSS) in the area. The OSS outreach will begin along the Drayton Harbor 30 shoreline. Legal counsel doesn't have an issue with the staff recommendations. The Birch 31 Bay Shellfish Growing Area handout should become the adopted closure response strategy. 32 33 Brenner asked if they've allocated money to pay for the small farm plans. Tang 34 stated that is in the actual closure response strategy (on file). 35 36 Brenner stated the Council said it would consider paying for the plans for people who 37 couldn't afford to do the plans. Tang stated that is what this response strategy 38 recommends. 39 40 Nelson stated he would like information before approving staff recommendations. He 41 asked about prohibited areas 20 and 21 and making a shellfish district out of the entire 42 Birch Bay Watershed and Aquatic Resources Management (BBWARM) area. He asked if 43 these two areas are impacted by the entire BBWARM District. Tang stated they are 44 considering making the entire Birch Bay watershed the shellfish district is so they won't 45 have to go through the process of establishing another district if there are future closures. 46 47 Nelson asked if these recommendations would apply to the entire BBWARM area. 48 49 Erica Stroebel, Public Works Department, stated the initial focus would be on the 50 Terrell Creek drainage, including the upper and lower Terrell Creek drainages. 51 52 Tang stated the focus includes monitoring and outreach work. 53 Surface Water Work Session, 2/17/2009, 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 Nelson stated that if adopted, this would apply to the entire BBWARM District. These are the policies for the shellfish district. Tang stated much of what they're proposing is already going on, including the OSS regulations and CPAL. They may just ask the Health Department and possibly the Planning Department to focus more of their time and resources on Birch Bay. Nelson asked if area 20 has drainage from a wetland at the golf course. Stroebel stated that is correct. It has been closed since 1994. It is a small closure, and didn't initiate the need to form a shellfish protection district. Because of the size of this closure, they are required to form a district. Nelson asked if area 21 impacts Terrell Creek. Stroebel stated it's a separate coastal drainage. Caskey- Schreiber stated the plan makes sense. It reflects the purpose for developing BBWARM. She is in favor of supporting it today. This area heavily depends on tourism, which will be a sustainable industry if it ever becomes a city. Fleetwood stated he agreed. Weimer stated he supports it also. He asked if they've talked to the BBWARM Advisory Committee about taking on these additional responsibilities. Most other shellfish districts have more members than BBWARM Advisory Committee. Kraig Olason, Public Works Department, stated they have talked informally. The members seem like they are in favor of it, if additional people are involved. Brenner asked if they are also setting up a district to be eligible for other funding. Otherwise, they are just creating more names to do the same stuff. Olason stated the closure requires an established district. They recommend that BBWARM be the district instead of creating another one. Kelly stated he is in favor of moving forward now. He is also concerned about the makeup of the Advisory Committee. Olason stated they will discuss it with the BBWARM Advisory Committee tomorrow. If they agree, they will have a discussion about the makeup of the Advisory Committee. . Tang stated the legislative authority may create an Advisory Committee, but that's all. It doesn't say who would have to be on it. Weimer stated they've tried to disentangle the Flood Control Zone District from the County Council. He asked if the County Council forms the shellfish district according to State law, and if that tangles them up again. He asked if Tang stated the Council forms the district. Crawford asked the State's method of testing. Tang stated the State has a three - part method for determining closures. The whole thing is called a sanitary survey. It includes a shoreline survey; actual water samples, and; how wind and tide conditions affect pollutants in shellfish beds. Stroebel stated they have collected water quality samples on Terrell Creek for a number of years. In 1994, they became concerned with the levels. During the latest shoreline survey in 2006, they were concerned enough to initiate a closure zone. From Surface Water Work Session, 2/17/2009, Page 2 1 that, they used drogues to look at circulatory patterns at the mouth of Terrell Creek. From 2 that, they determined the extent of the closure zone. 3 4 Crawford asked if they've ever found any contaminants in the shellfish beds. 5 Stroebel stated this follows national standards for shellfish growing areas, based on 6 conservative estimates to protect public health. 7 8 Crawford stated it is based on what's coming out of Terrell Creek, not what is at the 9 shellfish beds themselves. He asked if that's normally the way they do closures. Stroebel 10 stated it's generally based on water quality, whether that's marine water quality or fresh 11 water input. 12 13 Crawford stated the BBWARM District is bigger than the Terrell watershed. He 14 thought BBWARM goes all the way up to Ferndale. Olason stated that is the majority of it. 15 Near shore drainages go into the bay. Birch Point drains into Semiahmoo Bay. Point 16 Whitehorn is not all in the watershed, but asked to be included. 17 18 Crawford stated it seems like there are more than 500 or 600 OSS in the watershed. 19 That number seems small. Olason stated the majority are in the Birch Bay urban growth 20 area. The areas in five- and ten -acre zoning, particularly in the Terrell Creek drainage, 21 don't have high numbers of housing. 22 23 Crawford asked if this Terrell Creek drainage goes all the way back to Ferndale, and 24 there are only 500 or 600 OSS systems. Olason stated that is correct. 25 26 Crawford stated the Health Department will go to those folks in this area in June 27 2009. He asked what they've heard about public response to that Health Department 28 review. He's heard people are ignoring it. Olason stated he's heard that the Health 29 Department follows up the first letter with a second letter and then a citation or notice of 30 noncompliance. 31 32 Stroebel stated over 700 people in the Drayton Harbor watershed have submitted 33 reports of system status (ROSS) forms. That is significant in that short time period. 34 35 Nelson stated he is concerned about the legal definitions under shellfish protection 36 districts that they can incorporate into a district. Stroebel stated there isn't a definition of 37 the area. 38 39 Crawford stated they could do the entire county. Hutchings stated they could. 40 Jefferson County does that. Make sure the geographic areas are rationally defined. The 41 staff can look at that question in more detail. As they go forward, they ought to consider if 42 there are ways to be more efficient in how they manage these districts. Rather than having 43 individual districts in every identified area, there may be a way to have a broader 44 representation on a single advisory committee, for example. It could offer the combined 45 group a way to elevate their issues. 46 47 Nelson stated he doesn't want to quickly jump into a process that they may want to 48 change later. Don't be duplicative and redundant. To be effective in all these areas, they 49 must be efficient. 50 51 Weimer stated don't vote on this today. Put it off until Tuesday when they can get 52 input form the BBWARM Advisory Committee. 53 Surface Water Work Session, 2/17/2009, Page 3 1 Fleetwood asked when they will have a decision on the geographical area. Tang 2 stated they will talk with legal counsel and bring forward a formal ordinance for discussion. 3 4 Kelly stated the State is closely watching BBWARM and everything the jurisdictions 5 are doing out there. The State is looking at everything as a pilot process. It will be a 6 magnet for money to help out with many of these tasks. Birch Bay is clean. It is on the 7 verge of not being clean. It doesn't make sense to wait to do something until it's not clean. 8 In the meantime, combine all the shellfish protection districts into one. He likes the 9 Jefferson County model. This isn't a random, meaningless effort. 10 11 Crawford stated many of those folks are looking for revenue enhancement strategies 12 that don't involve the State. That is to their detriment, in many areas, including roads and 13 mental health. Be careful. He is skeptical when hearing the State may be interested in 14 funding BBWARM. 15 16 Kelly stated the governor put over $30 million in the Puget Sound Partnership, and 17 it's only been cut by $3 million. It's holding up well compared to other things. It may not 18 cost the County as much as they think. The State will look to put money into County 19 efforts. Don't allocate too much County money to this effort until they have more 20 discussions with the State agencies. 21 22 Crawford asked how the State Department of Health does this closure. They have 23 the authority to do the closure. The closure applies to commercial shellfishing, and is 24 recommended but not enforced for recreational shellfishing. He asked how fecal coliform 25 messes up the shellfish. Stroebel stated it doesn't have impact on shellfish, but on public 26 health. It is an indicator of other pathogens that can cause human illness, particularly if 27 people aren't cooking the shellfish. 28 29 Crawford asked if there are other options. One option may be the idea of doing a 30 countywide district. 31 32 Nelson stated there is a certain pot of money to resolve these issues. Consider the 33 system that would be best for a coordinated countywide system. Have a good, careful 34 administrative analysis. Also, he is concerned about the legal ramifications of imposing a 35 district according to the rules and requirements of shellfish districts, particularly the areas 36 outside of the drainage. 37 38 Crawford stated he is concerned about making sure the County response is equal to 39 the danger. Determine whether the culprit is agriculture or OSS. He asked if they've done 40 any forensic testing on Terrell Creek. Stroebel stated that is a recommendation of the 41 intensive monitoring program. She's been in communication with the Environmental 42 Protection Agency (EPA), which is willing to help with Birch Bay. This is an ideal place to do 43 that microbial source tracking work. 44 45 Brenner stated this is a requirement. They should go ahead and vote on the district. 46 She would like time to look at the handouts. 47 48 Hutchings stated they have to do something in the short -term to address the 49 requirements on Terrell Creek by 180 days from October, which is April. Staff proposes 50 sending a letter to the State saying the existing subzone does everything being asked for in 51 the response. They will work on enhancing that district. That is the short -term approach. 52 In the long term, they need to revisit how all of this works and how to advance the larger 53 picture effectively. 54 Surface Water Work Session, 2/17/2009, Page 4 1 Nelson stated that was the discussion they were supposed to have in phase three of 2 the integration project. They were going discuss how to allocate County funds for all these 3 things. One concept was to incorporate all the shellfish districts. They could have different 4 areas with different needs address the concerns. 5 6 Caskey- Schreiber moved to create a shellfish protection district to correspond to 7 the BBWARM subzone area. Determine later if the BBWARM committee will be the shellfish 8 advisory committee. 9 10 Brenner stated she would support the motion with a caveat that there are incentives 11 to offset fees. If people actually are reducing or eliminating their contribution, they get a 12 fee reduction or exemption. 13 14 Nelson stated they must clarify the geographic location with legal counsel. 15 16 Hutchings stated he is looking for direction today, so staff can create and bring 17 forward a formal proposal. 18 19 Kelly asked how the drainage concerns affect the district. They know that they have 20 a closure in the bay that requires them to form the shellfish protection district. There is no 21 problem with doing that. Hutchings stated the statute requires them to form a district or 22 equivalent plan. 23 24 Stroebel stated they are required to form a district and /or response plan. The 25 concern she hears from Councilmember Nelson is about which drainage would be a part of 26 the district and whether they truly contribute to the closure zone. 27 28 Nelson stated they could get into problems if the district taxes people for shellfish if 29 they don't contribute to the shellfish protection causes. 30 31 Motion carried unanimous /y. 32 33 2. REVIEW PROPOSAL CHANGES TO WCC 100.07, BIRCH BAY WATERSHED 34 AQUATIC AND RESOURCES MANAGEMENT DISTRICT 35 36 Kraig Olason, Public Works Department, submitted a new version of the proposed 37 changes (on file). The Council wanted staff to look at how to deal with adjacent properties 38 under one owner, in terms of density. Staff worked with the Advisory Committee on that 39 question. He used examples from others on which to base his proposal, beginning on page 40 five of the handout. He described 100.07.070(B)(6). 41 42 Nelson asked the criteria the manager would use to determine a contiguous lot. 43 Olason stated the lot has to be adjacent to the property under review, and it has to have 44 some commonality. In the case of British Petroleum (BP), for example, it is an area 45 enclosed by a road system. Farms are typically large enough to get the lowest density 46 factor. 47 48 Fleetwood asked the reaction from BP. Olason stated it meets the intent of what 49 they talked about. 50 51 Olason stated the manager has the responsibility to determine if lots are really 52 connected. The petitioner will have to show evidence that is the case. 53 54 (Clerk's Note: End of tape one, side A.) Surface Water Work Session, 2/17/2009, Page 5 1 2 Crawford asked if BP asked for this all along. 3 4 Olason stated it gets to it. There has been discussion about whether it would be 5 done on a per parcel basis. 6 7 Weimer asked if this came through the Birch Bay Watershed and Aquatic Resources 8 Management (BBWARM) Advisory Committee, and their recommended vote. Olason stated 9 the Hearing Examiner requirement and item 6 were reviewed and approved by the 10 BBWARM. Another recent issue is the determination of the penalty fee for delinquent 11 payments of five to ten percent. The Treasurer needed a specific amount, not a range. He 12 recommends ten percent. The committee hasn't seen that. 13 14 Brenner asked about the Hearing Examiner appeal cost. Olason stated the County 15 has to cover that cost, so they discussed that internally. 16 17 Olason continued to describe the changes. He referenced section (G) on page seven 18 of the handout regarding appeals. In this process, remember that the appeal of the original 19 fee allows them an opportunity to contest that and work with the manager on determining 20 whether it's right. The majority of the issues will be resolved at that point. It's not likely to 21 be a huge expense. This language does provide an alternative hearing body. 22 23 Brenner stated $500 is a lot of money. She is strongly opposed to any kind of 24 overcharge. She asked what would prevent tax and fee creeping up that increases the 25 charge all over the district. Olason stated that fees are calculated based on a low, medium, 26 or high fee. There isn't a debate with the residential lands on square footage unless they 27 request the 2,000 square foot rate exemption, which is a reduction. The people who will 28 mostly be aggrieved are those who pay multiple rates and have larger impervious areas. 29 30 Brenner stated she doesn't support this the way it is because it doesn't include low - 31 impact development incentives. She asked if they plan to redo everything once they do 32 apply low impact development incentives. Don't say ten percent. Olason stated that if they 33 figure out relative boundaries from an aerial photo, it will be tough to be within ten percent 34 in many cases. Sometimes they're getting a break, and sometimes they're not. If the 35 property owner can prove it's more than ten percent, they would get a reduction. That 36 language was proposed by the consultant, based on typical language used. It's not an 37 exact measurement in most cases. 38 39 Brenner asked if they have that kind of language in anything else. Olason stated he 40 doesn't know what else the County does that imposes a service fee with rate adjustments. 41 They don't typically measure things. This is a different way of doing business. 42 43 He continued to summarize the changes. This item is for discussion only. It will 44 come to the full Council in March. 45 46 Brenner referenced the lien for delinquent charges. She can see putting liens on 47 " property for that, but don't commence foreclosure for that kind of lien. Eliminate that 48 language. 49 50 Fleetwood stated foreclosure on lien is always a final option according to State law. 51 52 Brenner stated she doesn't like the language. 53 54 Caskey- Schreiber stated that language gives forewarning of the law to people. Surface Water Work Session, 2/17/2009, Page 6 1 2 Brenner stated it's threatening. This is not the way to talk to people right now. The 3 County isn't giving anyone any incentives. They're not trying to get people to help the 4 County make the watershed better. It is just threatening people. That is the wrong 5 attitude. Olason stated they turn this over to the Treasurer to do collection of the fees 6 through the annual tax mailing. Based on that, the Treasurer is the collector. This Revised 7 Code of Washington (RCW) is for utilities. 8 9 Fleetwood stated that even if that language is removed, there is still the State law 10 that the Treasurer can use their enforcement and collection devices, which include 11 foreclosure. If they take out that language to soften it, they are not giving people due 12 notice of what the law permits. 13 14 Brenner stated it's heavy- handed. 15 16 Nelson moved to amend 100.07.100 remove the last sentence and add language to 17 the sentence before that, "...RCW 36.94.150 may begrr� w'ithm sXty days." 18 19 Motion failed 1 -6 with Brenner in favor. 20 21 Weimer stated he is fine with all the proposed changes. The Advisory Committee 22 can have a look at this. It will be introduced next week. 23 24 Caskey- Schreiber stated the BBWARM Advisory Committee did a financial analysis of 25 what they expected to collect. They based some of their projects and goals on that budget. 26 She asked if this will significantly alter that amount. Olason stated he did a staff report on 27 that. It looks like it could affect revenue of up to $50,000 per year. That is a rough 28 estimate. 29 30 Caskey- Schreiber stated she is in favor of the changes. 31 32 33 OTHER BUSINESS 34 35 Brenner asked how people set up a flood subzone or diking district. 36 37 Hutchings stated people can contact River and Flood Division Manager Paula Cooper. 38 39 40 3. PROGRESS ON WATER RESOURCES SUPPLEMENTAL BUDGET REQUEST 41 42 John Hutchings, Public Works Department, submitted information (on file) on the 43 water resource program level of service two. He wants to make sure the March 44 supplemental budget request is as the Council expects. 45 46 Put into perspective what happened over the course of building the 2009 -2010 47 budget. The ending fund balances on the handout are projected and include the budget 48 enhancements the Council approved, including the $.04 per $100,000 of assessed value 49 increase. The increase results in an additional $700,000 to $800,000 per year of additional 50 revenues. Today, they will discuss the appropriate way to allocate those resources. The 51 reason that was considered in the first place is because it was recognized that the flood fund 52 was running in the red on the order of $700,000 or $800,000 per year. It's been doing that 53 for the last few years. They are approaching the reserve amount necessary to respond to 54 moderate flooding events. With this increase, the fund balance will not decline. Surface Water Work Session, 2/17/2009, Page 7 1 2 The handout provides a level of service two plus for that assessment. One -third of 3 the money goes to address the decline in the flood balance. It is the money available for 4 flood repairs and response. It's likely that they will come forward with a supplemental 5 budget request when they know exactly what will be repaired due to the recent flood. All 6 the items are in the top 25th percentile of the coordinated water resource integration project 7 (CWRIP) list. He read the list of items. This low impact development work are relative to 8 Birch Bay and Lake Whatcom. 9 10 Oliver Grah, Planning and Development Services Department, stated they have a 11 work plan in consultation with the Puget Sound Action Team, to act on funding and follow 12 up on the results of an experiment in the Birch Bay Watershed Action Plan. They will figure 13 out how to apply it throughout the county, specifically targeting the Lake Whatcom 14 watershed. They will hire a consultant to help develop the code, take the code through the 15 legislative process, and do public outreach. 16 17 Brenner stated they already have low- impact development standards in the 18 watershed. Also, they have a manual from the State that is a low- impact development 19 manual. A local environmental engineer was one of the authors of that manual. That 20 engineer said he would help the County with those things for free. She asked why they are 21 spending $60,000 to create this code revision. Hutchings stated there are existing 22 provisions in the County Code for dealing with some low- impact development applications. 23 There are other things that can make that development approach work in a regulatory 24 environment. It's important to get it right the first time. 25 26 Caskey- Schreiber stated there are low- impact development (LID) standards in the 27 Lake Whatcom watershed for new development, but not to address existing, older 28 development. She hopes they teach people to retrofit and do LID with existing properties. 29 Hutchings stated that is another challenge the Council asked the staff to address. They are 30 faced with State water quality mandates, so they must demonstrate to the community they 31 know what they're doing about reducing phosphorus in Lake Whatcom and reducing fecal 32 coliform. Along those lines, they proposed the Silver Beach demonstration project as a 33 collaborative program through the Lake Whatcom Management Program. The focus is to 34 give people confidence in what they spend money on. 35 36 The County and City are both looking for other sources of funding to offset some of 37 these things. These are difficult times, and not much money will be forthcoming. If it does, 38 they can reallocate the County funds elsewhere. They are working hard to get this stuff in 39 place and integrate incentive programs. 40 41 Last time, they talked about swapping the responsibility of paying for the contract 42 with the Conservation District (CD) from the general fund to Flood Control Zone District 43 fund, and the line item for a compliance - related full -time equivalent (FTE) employee from 44 the flood fund to the general fund. The intent is for the Planning Department and Public 45 Works Department to submit these supplemental budget requests together. 46 47 Brenner stated she's not interested in another County full -time equivalent (FTE) 48 employee. She wants the County to pay for materials, such as fencing, to help small farm 49 farmers comply with CPAL. 50 51 Nelson stated they can't use tax dollars to do that kind of stuff. 52 53 Brenner stated the Council already said it will do that. 54 Surface Water Work Session, 2/17/2009, Page 8 1 Weimer asked if the FTE in the Planning Department would be hired quickly. Grah 2 stated it's an important position that would keep them from getting further in arrears with 3 enforcement cases. 4 5 Sam Ryan, Planning and Development Services Department, stated she put in a 6 requisition for that when the Council first approved it. That hasn't moved forward. She 7 doesn't know if that position will be released. 8 9 Rebecca Craven, Council Policy Analyst, stated her understanding was that this 10 wouldn't be another enforcement person, but a staff person in the Natural Resources 11 Division to do work similar to what existing staff is doing. 12 13 Weimer stated they had additional conversations in the Natural Resources 14 Committee about how they need compliance to get people to do the right thing. 15 16 Ryan stated it makes sense to have a full -time person dealing with the CPAL 17 program. Putting the position strictly under compliance doesn't make sense. 18 19 Nelson asked if the projects will be identified as to where they stand on the 20 integration list when these items come forward. Hutchings stated they will. 21 22 Weimer asked if the declining fund balance is only because of the project or a 23 continual decline. Hutchings stated the bulk of the decline is related to that one project. 24 The river and flood program works by building up a fund balance until they have to respond 25 to a big flood event. 26 27 Kelly asked what happens if the 2009 flood repairs is more. Hutchings stated they 28 will be back revisiting the entire budget. 29 30 Brenner asked if they get funding from the federal government. Hutchings stated 31 they do. 32 33 34 ADJOURN 35 36 The meeting adjourned at 4:30 p.m. 37 38 39 40 Jill Nixon, Minutes Tran cription 41 42 The cil approved these minutes on June 9 2009. 43 44 A Y O WHATCOM COUNTY COUNCIL 45 ••\,At{grC • WHATCOM COUNTY, WASHINGTON J 46 — �•�i 47 48 49 50 6.ana0V n- .D.av, • A ungil Clerk Fleet ood, Council Chair HIN G .ice''' •••••• ••••• ``` Surface Water Work Session, 2/17/2009, Page 9 r-. b -' .