HomeMy WebLinkAboutNatural Resources September 11 2007WHATCOM COUNTY COUNCIL
Natural Resources Committee
September 11, 2007
Committee Chair Dan McShane called the meeting to order at 9:05 a.m. in the
Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Present: Absent:
Seth Fleetwood None
Carl Weimer
Also Present:
Sam Crawford
L. Ward Nelson
Barbara Brenner
COMMITTEE DISCUSSION
2. UPDATE ON FUTUREWISE LITIGATION (AB2007 -017)
McShane asked for background on this item. He explained the history of this issue.
Karen Frakes, Prosecutor's Office, stated the Court of Appeals will issue a mandate,
when their decision becomes final and subject to appeal. Whether or not Goldstar appeals,
the County will still be obligated to comply with the Board order. She anticipates having a
new compliance schedule. She hopes the Board will issue a reasonable compliance
schedule.
The process will be similar to the Lake Samish process that the County has done.
Staff has begun the preliminary stages of the process. It will be somewhat controversial in
some areas.
Fleetwood asked what the County has been directed to do. He asked for a summary
of the decisions from Superior Court, Appellate Court, and Hearings Board. He recalls gray
areas regarding the County's obligations. He asked what it means that they have to
analyze. Frakes stated there are specific criteria in the statute on how to evaluate these
areas. The Board decision is not ambiguous. The Superior Court reversed the Board
decision, and isn't clear on its decision. The Court of Appeals decision is also clear.
Fleetwood stated the meat is in the Hearings Board decision.
Weimer asked about rural zoning the County is supposed to fix.
Gary Davis, Planning and Development Services Department, stated there are three
basic issues the County must deal with. One is urban density. The urban residential, three
units per acre (UR -3) zone were deemed not dense enough for an urban area. The second
issue is rural densities. There were zoning classifications and land use plan designations
Natural Resources Committee, 9/11/2007, Page 1
1 that were too dense for rural areas. The third issue is the limited areas of more intense
2 rural development (LAMIRD's). The land use classifications described in the Comprehensive
3 Plan were not described in terms of the specific language of the Revised Code of Washington
4 (RCW). The Superior Court was silent on the urban density issue. The County took care of
5 that earlier this year.
6
7 Frakes stated the County is in compliance in that area. The Board issued an order
8 approving the County's decision to not rezone the UR -3 zone in the Lake Padden area,
9 based on environmental concerns. That decision was issued during the Council's break.
10
11 McShane asked if Futurewise recognized that issue in the Lake Padden watershed.
12 Frakes stated they didn't object to it.
13
14 Weimer asked if these are easy fixes. Davis stated the staff prepared a draft
15 amendment to the Comprehensive Plan to deal with bringing the land use classifications into
16 alignment with the criteria for LAMIRD's in the statute. That issue was placed on hold when
17 the Superior Court decision came down. They can now move forward with that part of the
18 issue. Once the definitions in the Comprehensive Plan are resolved, then look at the
19 boundaries around those small town designations and making those fit the LAMIRD criteria.
20
21 Frakes stated once done, any property outside those LAMIRD properties should be
22 zoned at rural densities unless there are extraordinary circumstances that justifies a higher
23 level of zoning.
24
25 Davis stated they have to identify the area as it was in 1990.
26
27 1. ORDINANCE AMENDING WHATCOM COUNTY CODE CHAPTER 16.20,
28 WHATCOM COUNTY SHELLFISH PROTECTION DISTRICTS, TO PROVIDE A
29 DEDICATED SOURCE OF FUNDING TO IMPLEMENT THE DRAYTON HARBOR
30 SHELLFISH PROTECTION DISTRICT RECOVERY PLAN (AB2007 -362)
31
32 Weimer stated the Council adopted the Drayton Harbor Shellfish Recovery Plan in
33 May. He hopes this ordinance will move forward dedicated funding. The language comes
34 from other jurisdictions. It institutes the funding authority under Revised Code of
35 Washington (RCW) 90.72. He's run the ordinance through the Prosecutor's Office and
36 Assessor for review.
37
38 The process is similar to the process for funding in Birch Bay through impervious
39 surfaces. That's the way it's been done in many areas of the State because that's the way
40 stormwater can be portioned out. In an attempt to get funding started in 2008, there is a
41 clause that adopts a $40 per parcel fee until that process is in place.
42
43 However, there must be justification for the $40 per parcel fee and how its used by
44 the stakeholders. They must add language to justify the $40, or delete that language. At
45 this point, the intent is to adopt this to get it going and start people working on it. The
46 actual funding and budget will come forward at some point. The Public Works Department
47 would administrate this process.
48
49 Fleetwood asked if passing this would not trigger the obligation of a parcel owner
50 making payments.
51
52 Weimer stated there is a clause now that there would be a $40 flat fee.
53
Natural Resources Committee, 9/11/2007, Page 2
Fleetwood asked what the Public Works Department is obligated to do.
Weimer stated the Public Works Department staff would calculate the average
amount of impervious surfaces on each parcel, including industrial, commercial, and
institutional parcels. There are about 7,000 parcels in the Drayton Harbor watershed.
Fleetwood asked how much money this would bring in.
Weimer stated the $40 per each of the 7,000 parcels would total about $280,000,
which is not close to the shellfish district's budget that the Council, which is about
$385,000. He handed out information. There was a grant opportunity for this funding, but
they were turned down because the County has a pitiful reputation for doing any
enforcement on many of these things.
Nelson asked if there is a documentation that the State Department of Ecology said
the County has a pitiful record.
Weimer stated it was a conversation he had with a Department of Ecology
representative, who said one deciding factor was that Whatcom County doesn't have a good
record for enforcement.
claim.
Nelson asked if the representative cited something that specifically references that
Weimer stated the representative didn't, but probably could.
Crawford asked the nexus between impervious surface and what's happening in
Drayton Harbor.
Weimer stated the shellfish protection district is looking at fecal coliform. There isn't
a clear nexus. Most other counties used impervious surface because of it's relation to
stormwater, and it's easy to track. Impervious surface seems to be the justification for it,
but in reality they take whatever budget they need and divide by the number of single
family lots. The money is not a direct relation to impervious surface anyway.
Crawford stated the second to last Whereas statement is too broad. It ought to be
reworded. Saying "every citizen" is a sweeping statement. They are talking about the built
environment, not the people, anyway.
Weimer stated they can work on refining the language.
Fleetwood asked if there is not sufficient justification expressed in the ordinance for
the $40 fee.
Karen Frakes, Prosecutor's Office, stated she'd rather address this in executive
session. It could lead to potential litigation. When imposing a charge, there has to be a
connection to the burden on the person paying the fee. There is no connection at this point
between the $40 and the individual property owner.
Weimer stated it is a one - size - fits -all solution rather than showing that a large
industrial lot may have a larger burden than a single family residence.
Natural Resources Committee, 9/11/2007, Page 3
1 Frank Abart, Public Works Director, stated he has concerns about staff resources for
2 administering this. It's very labor intensive to evaluate the impervious surfaces. The flat
3 fee is much easier. It's not as fair, but the Council may consider a flat fee a bit higher to
4 cover management costs and set a time limit when it would be reevaluated or reinstituted in
5 the form of evaluating impervious surfaces. It would give them time to collect a higher fee,
6 hire the staff, and do the evaluations. It takes an enormous amount of work to do it right
7 and fairly.
8
9 Weimer asked the deadline for the Assessor's Office. Abart stated he thinks it's the
10 first week in October, but it should be confirmed. He couldn't get the Birch Bay issue done
11 in time for that.
12
13 McShane stated they are trying to do a Birch Bay stormwater district. The goal is to
14 get a handle on stormwater issues in the watershed, including downstream impacts. This is
15 a different issue. They are targeting something else. Abart stated that's the way it appears
16 to him. He sees this evolving into more than a shellfish issue.
17
18 Weimer stated the authority is under the shellfish laws, they are targeting shellfish
19 recovery. To target more than that, they may need something else. The County has the
20 authority to collect more from the flood fee than what it is collecting now. The County has
21 the authority to collect $.50 per $1,000, but is collecting only $.14. There are $5 million or
22 $6 million of uncollected fees that the County can get. That may be another way to fund
23 this in the short term.
24
25 Geoff Menzies, Drayton Harbor Shellfish Protection District Advisory Committee
26 Chair, stated this is to identify a funding source to implement a plan from the Advisory
27 Committee to the Council. They are trying to help build the infrastructure to address this
28 problem. The main focus is developing the capacity in the local government to recover the
29 bay to fully approved classification. They must have a commitment from the County to do
30 those core elements. It also provides support to the Public Works Department to be the
31 lead. They are focusing largely on small farms and septic systems. This is a more proactive
32 and aggressive program to generate funds to solve the problem. Several other counties
33 have done this very thing.
34
35 Once Drayton Harbor is approved again, the Council has the authority to dissolve the
36 Shellfish Protection District. The challenge is whether they want to identify funding to
37 implement the plan to solve the problem.
38
39 Fleetwood asked the justification to make the rate stand up to challenge. He asked if
40 other counties have adopted a flat rate. Menzies stated most charge in a range of $20 to
41 $25 per parcel as part of the rate. Other counties hired consultants to determine an
42 appropriate rate structure. Recent research from the Puget Sound Action Team shows that
43 a key problem is impervious surfaces. If they lose the soil, they lose the bacteria
44 treatment, which becomes fast - tracked to the water body. All those communities went
45 through the hard work to develop a rate structure that was fair and supportable to
46 implement their program. They do a combination of a flat rate and a rate based on
47 impervious surface.
48
49 Fleetwood asked if it's possible to take the good reasoning from other counties and
50 incorporate it into this ordinance. Menzies stated it can be done. Any rates established
51 must be fair and supportable.
52
Natural Resources Committee, 9/11/2007, Page 4
1 Fleetwood asked if there is an anecdotal reason for an outcry when this comes up.
2 Menzies stated they are going to get resistance. It will take leadership from the County
3 Council. The Council can't expect the committee volunteers to continue working on a plan
4 that doesn't get implemented. They can solve this problem in two to three years of hard
5 work.
6
7 Fleetwood asked if any of the plans put in place by other counties were challenged
8 and held up. Menzies stated he doesn't know. Those counties had good public outreach.
9 There isn't much public outreach effort in this County.
10
11 Nelson asked the size of the districts in other counties. Menzies stated the sizes
12 vary. Kitsap County's district is small, and Snohomish County's is large. He described the
13 funding in Snohomish County.
14
15 Nelson asked other funding mechanisms the committee has considered. Menzies
16 stated they've looked at every mechanism possible. A volunteer advisory committee won't
17 come up with that without more support from County staff.
18
19 Weimer stated Skagit County has done a report on all the available mechanisms.
20
21 Brenner asked if Kitsap County did a certain area or the whole thing. Menzies stated
22 their funding has been countywide. A lot of the focus has been on Burley Lagoon. They can
23 get more information on Kitsap County.
24
25 Brenner stated she's frustrated because they are working on similar kinds of things
26 in several areas. As Councilmember Nelson has said, they need to create a countywide
27 system. There are benefits countywide. It's very similar to Birch Bay.
28
29 (Clerk's Note: End of tape one, side A.)
30
31 Brenner continued to state that funding is necessary. She's not comfortable doing
32 this as separate funding at this point. The very first watershed that will be carefully
33 examined for onsite septic (OSS) sewers is the Drayton Harbor watershed. That will take
34 care of the OSS problems. It would be less expensive if they come up with a generic
35 blueprint through the Birch Bay process. Everyone should pay their fair share.
36
37 Menzies stated the OSS Subcommittee was strongly in favor of a more systematic
38 approach to determine which areas should be closely considered in the management plan.
39 It's being addressed as a marine recovery area. Within the district's shoreline zone, those
40 will be the initial areas where owners will receive mailings that encourage them to maintain
41 their systems. That's great, but it doesn't go to the heart of the matter. The concern is for
42 all the tributaries throughout the entire system. There is a much broader area of impact.
43 There is concern about the capacity of government to steer the Health Department to
44 certain areas. It would be difficult to make the link and coordinate between the Public
45 Works Department, which is overseeing the monitoring programs, and the Health
46 Department. He knows that the County Health Department will inspect and correct systems
47 when it has the funds. This County doesn't have a low interest loan program in place for
48 septic systems. In the absence of those things, it will be many years before they get to the
49 bottom of the septic issues in the harbor. They're talking about funds to build capacity to
50 address those issues more timely.
51
52 Crawford asked about the core element budget.
53
Natural Resources Committee, 9/11/2007, Page 5
1 Weimer stated the $40 amount was decided upon based a guess of the number of
2 single family residences. In other jurisdictions with lower fees, the fees are countywide, so
3 there are thousands more lots.
4
5 Crawford stated he advocates strongly for the Birch Bay watershed fund, because it
6 seems like 75 percent or more of the money is going directly to improvements to the
7 watershed. When questioned, he must be able tell the taxpayers what this fee will do. He's
8 concerned that this plan for this money is only to hire people, not to do actual projects that
9 will show results.
10
11 McShane stated he's not sure actual projects will be successful to the Drayton Harbor
12 Recovery Plan. Many small farms can have a big impact on Drayton Harbor shellfish. There
13 is a disconnect between small farm support and getting small farm plans in place. There's a
14 clear link that small farms have significant impacts to the oyster situation. The critical areas
15 ordinance clearly states this is an area to work on, because the County is weak in
16 implementing the critical areas ordinance. The Conservation District will play a big role
17 once the County figures out how to fund it. OSS issues are also the chief concern. He
18 asked if they would focus just on Drayton Harbor as an oyster - producing area or if there are
19 other issues.
20
21 Crawford stated he would need to know more about fecal coliform in Drayton Harbor.
22 With improvements to the Blaine sewer system, he thought Drayton Harbor was improving
23 on the OSS issues. He asked if Drayton Harbor still has big fecal coliform problems.
24 Menzies stated it does. The big problem is the City of Blaine sewer system.
25
26 Crawford asked if potential problems include White Rock and people on their boats in
27 Blaine Harbor. He asked if they are closer to understanding how that works. Menzies
28 stated there is a summary of major improvements. Under wet weather events, the
29 watershed isn't draining. There are high bacterial levels. The major sources of concern
30 include small farm livestock and OSS. They are land -based sources. The committee is
31 looking at the upper watershed to address those things. All commercial dairies now have
32 nutrient waste management plans. During wet weather, there are still excessive bacterial
33 counts. Regarding enforcement, he filed complaints with the County against five farms.
34 When there is a rain event, the bay is automatically shut down for six days. The bay is shut
35 down for 30 percent of the time. Therefore, for 30 percent of the time, the watershed is
36 impaired. His complaints went in in February. It took staff more than two months to go
37 look at the farms. He still doesn't know the status. The County has a very slow response to
38 livestock waste. It continues to impair water quality. They are talking about building the
39 capacity to provide services. They are not building bureaucracies. They are funding people,
40 but these people are on the ground to do the work.
41
42 Crawford stated he is very cautious about setting up a special funding mechanism
43 when he can't define a tangible result.
44
45 Brenner stated most benefits come from lot size improvements. The only funding
46 she will support is funding that allows a reduction or exemption from people who are doing
47 stormwater offsets on their property. Develop incentives for landowners. People who aren't
48 the problem shouldn't be penalized.
49
50 George Boggs, Whatcom Conservation District Manager, stated they are talking
51 about two things. One is the funding aspect. The other thing is the measures. The
52 measures were hashed out when the plan was presented. It's a solid plan. If funded, it
53 would make the changes necessary to remove the shellfish protection district. Technical
Natural Resources Committee, 9/11/2007, Page 6
assistance is fine, but it needs a regulatory backstop. This program identifies the necessary
aspects of a regulatory backstop in addition to technical assistance. This is a very good
package that needs to be funded. The statute allows a district to provide funding to
implement the plan. If legal counsel is not comfortable that they are doing it the right way,
then don't go forward. The Council seems to support this. This Council is in favor of doing
this, but doing it right is also critical. Defer to legal counsel about doing it the right way to
withstand legal challenge. Don't put it off any longer. If they can't get money from the
general coffers, they need special district.
McShane stated another option would be funding the Conservation District for
supporting many of the activities, including enforcement. That would be countywide.
Boggs stated that with either countywide work or work in specific areas, they have to
communicate. The biggest mistakes in the processes is not having that communication with
the people most affected, which are the landowners. He doesn't know if that work has been
done either countywide or locally. They are able to work specifically in Drayton Harbor and
define those impacts and necessary actions. That would be more challenging to do
countywide.
Brenner asked if Mr. Boggs would support a mechanism that allows reductions and
exemptions to landowners who are making their properties better. Boggs stated always
work in terms of incentives, and give people the options to do the right thing. People do
need to know about the requirements and regulations. He would support incentives.
Brenner stated someone who lives in the Drayton Harbor doesn't necessarily derive
more benefits from shellfish than someone else in the County. Boggs stated it's not about
just shellfish. It's about water quality and a healthy environment. The water quality issue
is missing. That reflects on the health of the other systems. They have an entire system.
This is one indicator that is sick.
Weimer stated a question is whether the County wants to communicate more with
the people of the Drayton Harbor watershed before doing something like this.
McShane stated he would like to go into executive session to talk about the fee
mechanism before making a committee recommendation.
Weimer moved to go into executive session to discuss the legalities of the fee
mechanism.
Motion carried unanimously,
(Clerk's Note: The Committee went Into executive session from 10:40 a.m. to 10:53
a. M.)
Weimer moved to recommend that the Council withdraw this ordinance from
introduction. They will get greater clarity on the fee structure in two weeks.
Motion carried unanimously.
OTHER BUSINESS
There was no other business.
Natural Resources Committee, 9/11/2007, Page 7
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ADJOURN
The meeting adjourned at 10.54 a.m.
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WHATCOM COUNTY COUNCIL
WHATEOM COUNTY, WASHINGTON
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Dan McShane, Committee Chair
Natural Resources Committee, 9/11/2007, Page 8