HomeMy WebLinkAboutSurface Water Work Session March 20 20071
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
54
Whatcom County Council
Special Surface Water Work Session
March 20, 2007
Council Chair Carl Weimer called the meeting to order at 10:00 a.m. in the Whatcom
County Civic Center Annex, Second Floor Meeting Room, 322 N. Commercial, Bellingham,
Washington.
Present: Absent.
Barbara Brenner None
Seth Fleetwood
Laurie Caskey - Schreiber
L. Ward Nelson
Sam Crawford
Dan McShane
SURFACE WATER WORK SESSION (AB2007 -0251
1. BERTRAND CREEK FLOW SETTING SMALL LAND OWNER RESERVE
Bruce Roll, Public Works Department, gave a staff report. Information has been
gathered to assist in establishing instrearn flow levels. One issue is exempt wells on smaller
parcels that are not calculated. An idea is to create water reservations. He explained the
concept of a water reservation. A question is how much water should be made available for
current and future reservations. The administrator of the reservations can be the State
Department of Ecology or the County government. They must define the County's role, if it
has one, in administering the reservations.
Fleetwood asked if a reservation is required of everyone, not just the small parcels.
Roll stated the State Department of Ecology's (DOE) administration process is based
primarily on high water users and their existing water rights. These exempt wells do not fall
into that process. In this context, a reservation is used to thoughtfully manage many small
water users. Those people will be assured that they can use that water in the future.
Nelson asked why the County will get involved. Roll stated they must account for
the water that is used. Deal with the group as a whole, not with individual users. Someone
must represent those interests.
Doug Allen, Washington State Department of Ecology, stated they are working with
the watershed improvement district (WID) on a cooperative management structure that
would encompass all the agricultural uses and parcels larger than two and a half acres. The
smaller parcels are not included in the WID.
Brenner stated that if they have to identify an amount, just add up all the lots less
than two and a half acres, and multiply it by the 5,000 gallons that they're allowed.
Weimer stated that the people with the smaller parcels are not paying into the WID.
The point of the reservation system is to come up with an equitable way to serve these
people's water rights without having them all argue individually. The 5,000 gallon
exemption can be a problem for some agricultural users who don't have a water right. This
may be a way to lower the number of gallons allowed.
Surface Water Work Session, 3/20/2007, Page 1
1
2 Brenner asked the average gallons actually used. Roll stated the Health Department
3 uses 400 gallons to say that water is available.
4
5 Fleetwood asked the benefits of a reservation system. Roll stated it provides
6 individual users certainty of having water available now and in the future.
7
8 Jeff Chalfant, Planning and Development Services Department, explained the build
9 out analysis and summary. The current non -WID parcels that are two and half acres or less
10 account for about three percent of the existing water use in the entire Bertrand watershed.
11 Under full build out, that amount rises to five percent. He explained the options for
12 managing that water.
13
14 Weimer asked if the percent calculation assumed an actual use of 5,000 gallons per
15 day or 500 gallons per day. Chalfant stated they assumed an actual use of 450 gallons per
16 day, for 450 parcels.
17
18 Fleetwood asked if people have a legal entitlement of 5,000 gallons per day,
19
20 Dan Gibson, Prosecuting Attorney's Office, stated they do, for domestic use. The
21 County can't limit that amount.
22
23 Crawford stated that the lack of ability for more development rights may affect the
24 amount of water used. There is no practical use for these people to use 5,000 gallons per
25 day, even though they may have the right to use it.
26
27 Chalfant stated that there could be a limitation for exempt wells, with coordination
28 from the Department of Ecology, the tribes, and the WID.
29
30 Brenner stated people who live on two and a half acres can use that amount of water
31 for farming. Roll stated the 5,000 gallons can't be used for a commercial use.
32
33 Allen stated there is an exemption for industrial use, which includes agricultural uses.
34 Users can irrigate for commercial agriculture, up to 5,000 gallons per day. Some of those
35 smaller parcels could be using up to 5,000 gallons per day.
36
37 Roll stated that everyone is creating estimates based on actual water used, not the
38 amount legally allowed for use.
39
40 Weimer stated the idea of the Bertrand WID is to throw out the entire paper water
41 rights thing, and let the district come up with their own conclusions.
42
43 Nelson stated he wants to know what the instream flow limit is before he restricts
44 people's use. Allen stated that the current instream flow level is 13 cubic feet per second
45 (cfs) in the summer, but they never get there, so it's a closed basin. The current flow in the
46 summer is about one cfs. As part of this negotiation process, they are reevaluating the
47 current instream flow rule.
48
49 Roll stated the goal is to come up with an instream flow management regime that
50 meets the needs of agriculture and the tribes. One target is the amount of water salmon
51 need. Another target is the amount of water that the WID needs. Those amounts are
52 negotiable. The goal is to give cover to the more than 60 percent un- permitted uses, so
53 they are legal while still meeting the fisheries goals. All participants must agree to the flow
54 regime.
Surface Water Work Session, 3/20/2007, Page 2
1
2 Chalfant stated one idea is for people to opt in to the water reservation process if
3 they agree with the 500 gallons per day use. Those who don't want to opt in, and who plan
4 for a higher level of use, they could represent themselves in the process.
5
6 Roll stated someone must facilitate the water reservation process.
7
8 Nelson moved to recommend to the administration that the County take the lead
9 on these unidentified WID parcels and that the County will work with the Bertrand WID to
10 establish an appropriate level for meeting instream flows for Bertrand Creek. He asked who
11 decides to cut the allowed amount of water use if they can't meet the instream flow.
12
13 Allen stated they can come up with a total reservation amount. The question is how
14 many homes that amount will serve.
15
16 Weimer restated the motion that the County does support the reservation
17 concept, and the County would serve as liaison with those private well owners.
18
19 Crawford asked if the County has the resources to do this.
20
21 Unidentified speaker stated that the County does not have the resources to do this.
22
23 Roll stated that for now, the County can facilitate the discussion to get the
24 information it needs to understand what it means to administer a program. Decide on the
25 County's role in administration for another day.
26
27 Crawford suggested a friendly amendment to the motion to request that staff
28 move forward with a scoping project before the Council says that the County will administer
29 the system. They need to first define what that system will be.
30
31 Nelson stated that they have to do the reservation system for the owners of parcels
32 with two and a half acres or less. That will be done by either the County or the Department
33 of Ecology (DOE). People don't have as much access to the DOE as they do the County. He
34 restated his motion for the County to set up and administer the water reservation system.
35
36 Roll stated staff will have to estimate what is involved to take the lead. Now, they
37 don't have resources to convene.
38
39 (Clerk's Note: End of tape one, side A.)
40
41 Crawford suggested a friendly amendment to move forward with the formation
42 of a water reservation system for parcels two and a half acres or less within the Bertrand
43 WID and do a scoping effort to put in place a water reservation system and stakeholder
44 outreach.
45
46 Nelson accepted the friendly amendment.
47
48 Motion carried unanimously.
49
50 2. SWIFT CREEK MANAGEMENT OPTIONS
51
52 Bruce Roll, Public Works Division, described the history of Swift Creek management.
53
Surface Water Work Session, 3/20/2007, Page 3
I Paul Pittman, Public Works Department, explained the current situation with Swift
2 Creek and the assumptions used to create the five management alternatives. For each of
3 the five alternatives, they looked at a conceptual design, pros and cons, and costs.
4
5 Caskey- Schreiber asked how the County is going to get money to begin this process.
6
7 Dewey Desler, Deputy Administrator, stated the County administration had
8 discussions with the national congressional delegation. They are setting aside money to pay
9 for a more deliberate action plan. They would like to see more substantial analysis. It
10 would cost about $500,000 to do a more deliberate engineering analysis with options.
11
12 Weimer asked why they are going to plan for only 50 years. Pittman stated it would
13 be even more difficult to estimate costs for 100 years or more.
14
15 Nelson stated he's missing some facts and assumptions. Find out the expected
16 participation from the federal level to funding or help with planning. He would like to
17 consider the criteria before defining these courses of actions. One criterion is the least
18 possible cost to the County. Another criterion is the least impact to public health.
19
20 McShane stated he would have trouble analyzing these alternatives on that basis.
21 Do an economic analysis. They don't have a good idea of the health risks for the
22 alternatives. They need clever minds to deal with a unique problem.
23
24 Nelson stated a third criterion is the greatest preservation of land use. The last
25 criterion is the greatest protection from flooding. The first alternative does not provide any
26 protection from flooding. He needs more information on facts and assumptions to weight
27 the criteria and inform his decision.
28
29 Brenner stated they need federal assistance to control liability issues. That's her
30 biggest concern. Liability is her most important criterion. Roll stated they have considered
31 federal regulations that provide certainty about liability.
32
33 Dan Gibson, Prosecuting Attorney's Office, stated this is a naturally occurring
34 substance. Rules and regulations are written for release of dangerous substances in a
35 manufacturing process. That makes a difference. They don't know much about what that
36 means in terms of liability. The Environmental Protection Agency (EPA) is guessing, just
37 like everyone else is. He's reviewing federal and State regulations to see which regulations
38 they could change to provide the County with greater assurance that the County can handle
39 the material with very limited exposure. The next questions are what represents their best
40 case scenario, and how realistic is that politically. His conclusion is onsite handling and
41 disposal. He has a hard time envisioning a regulatory framework and political support for
42 movement of this material offsite.
43
44 They have a much greater possibility of raising legislative support to enable the
45 County to handle and dispose of this material within a limited area. That means the annual
46 dredging of the material, if conducted in a certain fashion, would be exempt from liability.
47 The State and federal governments don't have any more liability than anyone else.
48 Politically, there can be a shift of financial responsibility if they choose to take it on. Now,
49 liability will tend to gravitate to the parties who handle the material. The assurance he
50 seeks through federal legislation is taking liability away from the handler as long as the
51 material is handled in a certain manner.
52
53 Nelson stated that the federal government is waiting to see what process the County
54 goes through. The State and federal governments will respond to what the County can do,
Surface Water Work Session, 3/20/2007, Page 4
1 following their own criteria. Gibson stated that the federal government will take the political
2 and public health approach in their decision- making process. The County won't get a blank
3 check for an indefinite period of time.
4
5 Caskey- Schreiber asked about controlling flooding on those properties in terms of
6 Federal Emergency Management Agency (FEMA) buy out of those properties. If this
7 material is going to continue to land on these problems, it will get worse.
8
9 Paula Cooper, Public Works Department, stated that the alluvial fan is unpredictable.
10 All the options right now are very conceptual. They really haven't determined if they are
11 feasible.
12
13 Caskey - Schreiber asked what the property owners want.
14
15 Weimer stated they will hear from the property owners.
16
17 Gibson stated they must ask themselves the most realistic, best -case scenario from
18 a handling and liability standpoint. In his opinion, it will be onsite handling and movement
19 of the materials.
20
21 Brenner stated that at some point, they will run out of space. Gibson stated that one
22 square mile, piled at 30 feet deep, would be approximately sufficient to accommodate 600
23 years' worth of material. That's a lot of handling and movement of material that also
24 excludes farming and residential activity in the area.
25
26 Caskey - Schreiber asked about effects to groundwater. Gibson stated the material
27 would be piled, not buried. The groundwater will be a factor no matter what option they
28 choose.
29
30 (Clerk's Note: End of tape one, side B.)
31
32 Larry Mades, 7689 Oat Coles Road, Everson, stated he is one of the affected
33 property owners and is a member of the flood sub -zone advisory committee. He submitted
34 concerns and suggestions from property owners along Swift Creek. The area and amount of
35 material are massive. This has caught the Governor's attention. He discussed the history
36 of the slide. The EPA study left a lot of unanswered questions. They need definitive
37 information. The residents haven't experienced any health impacts so far. The residents
38 are potentially at risk, and accept that potential risk. This problem is not local, but includes
39 Sumas and Canada. No one is taking responsibility, and someone must.
40
41 He described the flooding and groundwater problems in the area. Unblock the
42 drainage ditches. This material could be used off -site with reasonable standards for that
43 use. Use the material in projects that are somehow capped. Get the gravel and mining
44 companies involved to use the material.
45
46 Brenner asked if the County can have Hold Harmless agreements with the property
47 owners, so it can move the material within a certain liability. Gibson stated that there can
48 be a contractual agreement between the County and a property owner. The question is the
49 effect of that agreement on third parties.
50
51 Caskey- Schreiber stated that the Council understands that the real risk to the
52 residents is from flooding. The EPA told the County that it must cease moving the material
53 off the property. That prohibits anyone from using the material for anything. She would
54 like to know what the property owners ideally want. Mades stated the property owners
Surface Water Work Session, 3120/2007, Page 5
1 don't want to be bought out. The property owners would like to work with the EPA. There
2 has got to be a way to allow movement of the material off -site. They've used the materials
3 in the past. !None of those locations has been tested to see if they're harmful when capped.
4
5 Denise Baker - Kircher, EPA, stated the letter to the County from the EPA didn't say
6 that the County couldn't move material offsite, just suggested that it wasn't a good idea.
7 The EPA recommended that people not take the material offsite in an unprotected way. The
8 EPA never said that the final answer is to leave the material onsite. The EPA has always
9 wanted to work with the County to come up with a solution.
10
11 Tom Westergreen, Great Western Lumber, stated there hasn't been much response
12 since the EPA report came out. He's glad for the meeting today and for the County to take
13 leadership on this issue. The concentrations of the asbestos floats to the top of the
14 material. There are things they can do with some of the material. Allow controlled uses of
15 the material. See if the Health Department and EPA will allow some controlled uses before
16 choosing one of the five options.
17
18 Baker- Kircher stated that the EPA supports exploring ideas for using the material on
19 certain projects. The EPA talked to the Department of Transportation and airport about
20 possibly using the materials.
21
22 Weimer asked if a $500,000 study would look only at the five options or would study
23 whether or not the material could be used. Desler stated no one has decided that. They'd
24 rather take action than do more studies, but the federal government wants more
25 information on how to handle the options.
26
27 McShane stated other locations with asbestos problems have found ways to use the
28 materials.
29
30 Gibson stated one legislative fix is to simply remove naturally occurring asbestos
31 from the regulatory framework. He asked Ms. Baker- Kircher if that would be a feasible
32 solution.
33
34 Baker - Kircher stated she couldn't answer that. She would have to ask her attorneys.
35 The question is how to treat the hazardous materials.
36
37 Gibson stated fill is the ideal use, if there aren't in other heavy metal issues that
38 would result in contamination. He asked if Ms. Baker - Kircher can envision an regulatory
39 framework in which this material would move offsite en masse to a variety of locations.
40
41 Baker - Kircher stated that the EPA did look at that option, and is still open to
42 discussing it. Make sure the material is handled and used in a protective way.
43
44 Weimer asked if the County needs to bring a specific proposal to the EPA. Baker -
45 Kircher stated that is one way to do it. The EPA has been offering to sit down and work with
46 the County on potential uses.
47
48 Frank Abart, Public Works Director, stated that the EPA has been offering to talk, but
49 is not offering any solutions.
50
51 Baker- Kircher explained the assistance that the EPA has provided so far. The EPA
52 worked very hard to give the County what it promised to give. The EPA spent over
53 $350,000 to do the sampling.
54
Surface Water Work Session, 3/20/2007, Page 6
I Roll stated that the EPA met the work that it perceived the health agencies needed.
2 That wasn't what the Public Works Department needed. They need the least costly options
3 to consider under some sort of regulatory framework.
4
5 Baker- Kircher stated that the EPA told Dr. Roll in April that it is working on the
6 sampling plan for what the work they heard Whatcom County needed during its meeting in
7 February. The EPA followed up with a letter outlining the work that they planned, per what
8 Whatcom County requested. The EPA did exactly what the County asked it to do.
9
10 Roll stated that the EPA did what the health agencies asked. The EPA didn't do what
11 the Public Works Department asked for.
12
13 Weimer stated it sounds like it may be possible to work with the material off -site.
14
15 Gibson stated the material has to be dealt with within a regulatory framework where
16 people know the rules, so they can economically move the material. He asked if they have
17 a commitment of the agencies responsible for regulation to sit down with everyone to create
18 a regulatory framework that will result in the economic disposition of this material. If that is
19 not possible, he asked if they are to try to figure out how to handle it onsite.
20
21 Baker - Kircher stated she can't speak for all the agencies. The County should ask
22 each agency if they are willing to work with Whatcom County. The EPA has made its offer
23 clear. It is willing to work with Whatcom County.
24
25 McShane stated he needs more information on the health risks of the different
26 options. The Council needs help from people who really understand this material. The EPA
27 understand this material more than anyone.
28
29 (Clerk's Note: End of tape two, side A. The recording of this meeting continues on
30 audiotape three, side A.)
31
32 Caskey- Schreiber stated the County needs to figure out where and how to
33 appropriately use the fill.
34
35 Dave Smith, resident, stated he lives on Swift Creek. There is a report from the
36 State Department of Labor and Industries about handling the asbestos materials. The
37 material was used at one time at Nugent's Corner. He hoped the County can figure out how
38 to use the material on the new Guide Meridian project.
39
40 Weimer stated that the Council will discuss this issue again.
41
42 Roll stated that a lot of people have said they will show up at meetings to work on
43 this issue, but no one has taken the lead to convene the meetings. They will have to decide
44 who has convener status,
45
46 (Clerk's Note: The Council took a three - minut=e break.)
47
48 3. STORMWATER ACTIVITIES UPDATE
49
50 Kirk Christensen, Public Works Department, gave a staff report on the status of the
51 Cable Street reconstruction. The best thing to do is close Cable Street and have one -way
52 detour routes go around the project. He indicated the detour traffic routes. The Council will
53 have to adopt an ordinance to establish the one -way detour routes. He discussed the public
Surface Water Work Session, 3/20/2007, Page 7
1 input and departmental response to public concerns, safety measures that will be taken,
2 and coordination with services providers.
3
4 Brenner asked if the Wall Street issue will be part of this ordinance. Christensen
5 stated it will be part of the contract that is coming to the Council. Roll stated that
6 administratively, there have been a number of changes in the Wall Street approach. Now is
7 not the time to change it. If the Council decides to change it, they can do it through a
8 change order at a later date. If they hold up the contract at all, they won't be able to meet
9 the timeline for the rest of the project.
10
11
12 OTHER BUSINESS
13
14 Sue Blake, Public Works Department, stated that next month, the Council will hear
15 the initial problem identification and various options regarding the Comprehensive Plan Lake
16 Whatcom stormwater plan. If anyone has any thoughts or ideas, she would like to hear
17 them.
18
19 McShane stated that the Council Planning and Development Committee is dealing
20 with Bellingham's urban growth area, including watershed areas. There has been
21 conversation about not creating any additional lots within that area, partly because of
22 stormwater issues.
23
24 Roll submitted a map of the Birch Bay area overlay.
25
26 McShane stated he has concerns about the Lake Padden watershed. The watershed
27 is small, and a significant portion of it is scheduled to be zoned for high density urban
28 housing.
29
30
31 ADJOURN
32
33 The meeting adjourned at 1:00 p.m.
34
35
36
37 ]ill Nixon, Minutes Tr scription
38
39 The Coyujil approved these minutes on April 24 2007.
40 01,1111
41 ATTE$P\:%'(Y C' Q(/ 14 i WHATCOM COUNTY COUNCIL
42 .� �1 .,�
��� J �•�r1Ai(,, •� � .�� WHATCOM COUNTY, WASHINGTON
43 ti 4'.is
44 _
45 �r -
46
47 DaAa Br'p - auis „�qV -1h rl clerk Carl Weimer, Council Chair
•. SkIN� .•
Surface Water Work Session, 3/20/2007, Page 8