HomeMy WebLinkAboutWater Resources May 17 20051
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Whatcom County Council
Special Water Resources Work Session
May 17, 2005
Council Chair Laurie Caskey- Schreiber 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
Dan McShane
Sam Crawford
Seth Fleetwood
Sharon Roy
L. Ward Nelson
WATER RESOURCES WORK SESSION (AB2005 -025)
1. WRIA 1 WATERSHED MANAGEMENT PLAN
Phase I Plan Adoption
Bruce Roll, Assistant Director, stated the Planning Unit approved the plan. It
will be introduced to the Council on May 24th, and a public hearing will be held on
June 7th. Today, he will present additional information received during the public
forum on May 4th. Appendix G is a packet of information and resolutions from the
various caucuses presented as the plan was approved by the Planning Unit. A
water resource inventory area (WRIA) Planning Unit subcommittee looked at ways
to potentially fund WRIA implementation. That information is also in the packet.
Sue Blake, Senior Planner, listed the members of the Planning Unit funding
subcommittee. The subcommittee was open to Planning Unit members who wanted
to attend.
The first item in the packet is the CD that contains the final plan and the
executive summary. There have been a fair number of changes to the document
since the first version was put together.
Caskey- Schreiber asked about page 14 of the Council packet. It mentions a
multipurpose water storage options assessment. She asked if the details of that
assessment are included in section three. Blake stated the full assessment isn't in
the plan because it's quite lengthy. It's built off lots of work done previously. The
assessment was done according to an interlocal agreement with the Public Utility
District staff, with a grant from the State Department of Ecology.
Water Resources Work Session, 5/17/2005, Page 1
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Next in the packet is the public outreach comments. In order to assist the
Council in its consideration of the document, staff worked with the Public Utility
District (PUD) to have a public meeting about the plan. It was held on April 27,
2005 at the Laurel Grange. A summary of the actions, participants, and comments
are in the packet. All the comments received were informal.
Caskey- Schreiber referenced the power point presentation and poster in
section two regarding public education, on Council packet page 18. Blake stated
that presentation is not attached to this Council packet.
Fleetwood asked the response to the one attendee who was concerned there
wasn't enough technical data to support the management options. Roll stated early
on in the process of developing the technical work, there were a number of work
sessions where people brought forward options. It was clear there would not be
enough tools to evaluate all options. They identified as many management options
as they could. The struggle they will have is identifying and being certain of the
output. That is yet to be determined.
Brenner asked when exempt wells will be addressed. Blake stated the plan is
written with the idea it would be updated in two years. If, at that time, there are
additional recommendations provided and supported, there is a mechanism to
address exempt wells.
Brenner asked if the reason is because exempt wells are difficult to
pigeonhole like other items. Blake stated people raised the issue a number of times
during the discussion. However, it wasn't a high enough priority by all to move
forward with specific action. The issue of exempt wells comes up frequently. It's
likely it will be discussed with instream flow pilots to see if exempt wells are a
significant issue in each basin. They may find that exempt wells aren't significant.
Roll stated people know multiple exempt wells may influence water
availability. They will get at the issue through drainage- specific work and through
the instream flow work.
Blake stated they have come up with numbers pertaining to exempt wells
through the work on water use estimates. WRIA -wide, they're a small percentage
of the users. However, they might want to deal with them at some point because
people are putting in exempt wells in some service areas for a public water system
so the system can't get a water right to expand.
Brenner stated she thought people were not allowed to put in private wells if
in a district. Blake stated it depends on if the district can provide service.
Tom Anderson, PUD General Manager, stated the aggregate use of exempt
wells is insignificant on the river flow. There are clear impacts in certain areas.
The real issue is the political one with the impacts to the associations, who can't get
Water Resources Work Session, 5/17/2005, Page 2
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
water rights to service those in the service area. It's a water right issue rather than
an exempt well issue.
Brenner stated it's either one or the other. Someone needs to conserve
through an association or district or be allowed to do their exempt well. Anderson
stated the County says that a person must hook up to the water system if in a
service area and the system can provide water in a timely and reasonable manner.
In most of the cases, the problem with getting service timely and reasonably isn't a
physical constraint. It's the limitation on water rights, which is a political and
regulatory problem, not a physical problem.
Brenner asked if this plan is going to provide the county with more water
rights. Anderson stated it will. That is the primary focus of instream flows. The
reason for that focus is to answer questions about available water quantities and
hopefully to remove the potential for senior tribal rights off the table. That will lead
to a resolution to free up water rights.
Brenner asked if it could do the opposite if the tribes feel they have more
water rights than whatever the plan comes up with. Anderson stated it could have
the opposite effect. From his knowledge of the basin, limited areas will end up with
greater restriction because of a lack of physical availability of water to meet all the
needs. In the majority of basins, there is ample water for fish and all water needs.
Nelson stated he got the impression most concerns were of a microscopic
nature. He asked if there was discussion on the larger picture. He asked if the
community understands the financial implications. Roll stated the funding sheets in
the Council packet were developed after the public process.
Blake stated that when the Council receives the plan and a resolution, it is
not being asked to approve or not approve funding. Through the plan, they will
continue to look at strategies for funding. There isn't consensus among the players
on how much funding they need. They all recognize that funding is linked to
implementation of this plan.
Roy asked if adopting this plan does not legally obligate the County to
implement the plan. Blake stated the County is not identified as the funding
mechanism for the plan. The County is identified as a participant in the process.
Roll stated two caucuses are required to implement the plan, the County and
the State. A lot of the implementation stuff will occur from different venues, not
necessary the WRIA plan venue. Any funding source will be identified by State law
that allows them to do those things. Staff has taken great pains to not obligate the
County to fund implementation. However, many people will come to the County
Council and County Executive for funding.
Blake stated the best way to see how the County is named is in the table in
section five, which lists the activities.
Water Resources Work Session, 5/17/2005, Page 3
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Brenner asked if attorneys looked at the letter from Tim Slater. Roll stated
they've reviewed it.
Blake stated the only comment formally submitted was from Tim Slater.
Roy stated she was struck by the low number of attendees at this public
meeting. She asked if staff was surprised at the low number.
Blake stated staff has done a number of these forums over the years, but it's
challenging to get people to attend.
Roll stated there was a lot of thought in setting up the caucuses. All interest
groups have been engaged in the process. The low attendance at the public forum
is a reflection of the large caucus group working for many years on the issue.
Nelson stated this is so early on in the process, the impacts on the ground
won't be felt until they start implementation.
Brenner stated this isn't early on in the process. Some meetings are packed
with people. She is concerned that the message hasn't gotten across yet that this
is the same thing as Lake Whatcom, Birch Bay, and other issues. If the message
got out that way, the meetings would be packed, especially if people know how
much it will cost. The next step is getting people to be really aware of what WRIA
means. There needs to be some kind of a special media person to work with the
press to really get the information out about what this will mean. It will radically
change things in the county, at a large cost. The Water Resources Division should
speak to the Herald editorial board. Roll stated he's talked to the Herald editorial
board three times in the last five years.
Crawford stated a reporter was at the public forum.
Brenner stated they need to do whatever it takes to get press.
Roll stated the staff direction and approach was to create a framework to
constructively solve water resource issues. There is no shortage of people that
know there will be a legal framework to validate what people agreed upon. That's
why they agreed on good faith negotiation. Some people believe they should have
started with adjudication. The information in the Slater letter is not a surprise.
McShane stated the reason they are limited in making a decision on
adjudication is because of the State. Other states have taken different approaches.
Roll stated the County staff proposed to create the opportunity for good faith
negotiation, absent a legal hammer that will come down on someone. With 60
percent of the agricultural community without a valid water right, staff wanted to
make sure there is a forum for problem - solving and not leave that constituency out
Water Resources Work Session, 5/17/2005, Page 4
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
of the process, which adjudication would do. The agricultural community has no
standing in an adjudication process.
Brenner stated she got the impression that this process would prevent
adjudication. If the process is not likely to prevent adjudication, it might be a
better idea for the County to have its foot in the door, rather than spending years
going through the process and ending up with adjudication anyway. It's likely they
will end up with adjudication on some issues. Adjudication may inspire people on
all sides of the issues to work toward common goals.
Anderson stated there needs to be clarity about Washington water law. The
only way to determine the validity of a water right is to go to court. What matters
is how they get to court. For those who have water rights and are not voluntarily
relinquishing them, they will end up in court at some point in the future to have
those rights validated. The form of adjudication where they collectively agree is not
contentious and is quick. A contentious adjudication could take decades and cost a
lot of money. Under the law, adjudication is the only way to resolve the extent,
validity, and priority of any water right. The goal is to have a mutually agreed to
plan.
Caskey- Schreiber asked the expense of the non - confrontational approach.
Anderson stated a non - confrontational approach to resolving the water rights issue,
that is inclusive of all the players, is a $10 million to $20 million expense. A
confrontational approach would cost about $70 million to $100 million.
Nelson stated they prepared for litigation ten to 12 years ago through the
Nooksack Initiative process because of the Spokane tribes in Yakima, who are still
working on their issue. A proper planning process clearly outlines the areas they
will work on so judges can see there is a process already in place. That's why they
are doing this. He agrees there will be litigation no matter what. The issue is the
cost in the long -run.
Roy asked if the decision is that of the judge deciding between two different
sides in cases that are confrontational. Another advantage of this process is that
more voices are involved. She asked if the judges make a single ruling.
Dan Gibson, Senior Civil Deputy Prosecutor, stated the issues are complex.
A judicial decision in an adversarial setting produces winners and losers. They are
not creating value through a cooperative process. They are competing for the value
that is there.
Regarding Mr. Slater's letter, he points to a recent case out of the Ninth
Circuit Court which addresses whether or not a tribe has an implied reservation of
water. The court said there is no implied reservation of water for the Tribe outside
the reservation. He tends to agree. Tribes have optimistically stated their claim on
water. However, there is an environmental servitude on available water. If they
Water Resources Work Session, 5/17/2005, Page 5
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
are going to have fish and water flowing in streams, it doesn't matter whose name
is on the water.
Fleetwood asked Mr. Gibson to define environmental servitude. Gibson
stated the river is a river, and it has purposes other than consumptive out -of-
stream uses. Recognize it is a home for things other than people.
McShane asked if that is similar to the case in Idaho where the U.S. Forest
Service prevailed in having a right even though the water was not on the U.S.
Forest Service land, but connected to U.S. Forest Service rights. Gibson stated that
case was a variant of the case Mr. Slater referred to. Even with that decision, they
have to have water there.
McShane asked if they can foresee a situation in which the judge makes a
decision during adjudication where they will still have problems because of lack of
clarity. Gibson stated there is no example he can recall of a clean adjudication.
Anderson stated the biggest difference between the adjudication and
negotiation approaches is that adjudication determines the quantity and date of the
water right. It gives no background or instruction on how the parties that have
lived there will manage the resources to meet their other needs. Yakima has spent
30 years arguing over those details. Yet, they still have to get along with each
other to manage storage. The adjudication doesn't answer that problem. The real
advantage of negotiating about how they operate solves those problems
simultaneously. There is a benefit to having those agreements as they go along.
Fleetwood asked the benefit of the watershed management plan. Everyone
is saying they agree with the plan, but they are not bound by it. The battles will
take place during implementation. He asked if the benefit of the plan is reducing
the likelihood of future litigation. They spent so much time and energy on this, yet
most of the litigation would have been private litigation amongst a multitude of
entities. Anderson stated Whatcom County government is one of the only entities
of local government that doesn't have water rights. All cities and water districts
have water rights in one form or another that would be directly impacted by
litigation. The reason for watershed planning and this entire process is to get the
players to the table to talk about how to manage the resource and solve everyone's
problems. If they can come close to doing that, there will be a management
strategy to support and enhance agriculture and fisheries and to address a lot of
publicly important environmental issues in ways that are easier to deal with.
Fleetwood asked if they are confident there is a great number of future
potential conflicts that would have arisen, and now will not, making this process
worthwhile. Anderson stated there are three venues of conflict that they have seen
in the past and in other places. One is the water rights issue itself. Tribes
ultimately will go to court over it. The other venue is the Endangered Species Act
(ESA), which has citizen lawsuit provisions. They have had contact, from groups
outside the area, about lawsuits. The third venue is the Clean Water Act. They
Water Resources Work Session, 5/17/2005, Page 6
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
have seen lawsuits locally and people outside the area suing small cities about
things such as a sewer outfall. If they don't attempt to resolve watershed planning
for the majority of people, they will face those three venues that will cost money.
Blake stated the current situation includes small public water systems that
are affected today, regardless of the tribal issue. It's part of the big motivator for
non - municipal water systems to be involved. It's about dealing with their
responsibilities and managing their resources today.
Brenner asked why the cities of Sumas, Everson, Nooksack, and Ferndale are
not signers.
(Clerk's Note: End of tape one, side A.)
Blake stated appendix G is for any participant who wants to submit language
if they want. There wasn't a deadline given to submit information. Staff may get
something from the cities in the future.
Roll stated the small city caucus is very engaged.
Blake stated they can't make people provide resolutions.
Fleetwood stated Mr. Slater expressed concern about the mediator. He
asked what staff thinks. Roll stated Bob Anderson is highly respected and
negotiated a successful settlement in Idaho. He was the person that everyone
accepted as mediator. He has credentials.
Fleetwood asked Bob Anderson's scope of work. Roll stated they are
developing that scope now. Bob Anderson will be the intermediate so the County
isn't always tasked with finding the middle ground in some of the government -to-
government relationships. Historically, it's been County staff who has played the
part of the intermediate.
Nelson asked if it deals with the quantification of the instream flow and gets
to what is acceptable by all parties. Anderson stated that's correct.
Caskey- Schreiber stated she is in favor of going with the cooperative
approach. However, Mr. Slater's points are valid in that they will come up with
tentative nonbinding agreements, and regimes change. She asked the guarantees
that they won't waste taxpayer dollars if the County is the lead entity to pay for the
negotiation process.
McShane stated one tack the County could take is to drop it and leave it up
to the other entities. That's not a good idea. Ultimately, a cooperative approach is
much better. The County is providing the catalyst for the cooperation. If people
don't want to cooperate, they can fight their own battle.
Water Resources Work Session, 5/17/2005, Page 7
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Anderson stated Mr. Slater's current position is that he clearly participated in
a negotiated a settlement for a water supply on the Gooseberry peninsula with the
County, State, federal government, and tribes for four years. That negotiation blew
up in the end. Mr. Slater represents several groups and landowners on the
Gooseberry peninsula in a legal battle that ensued following the collapse of that
negotiation. That legal battle is due to be in court for trial some time in the future.
That has a big impact on what happens. It's clear that part of Mr. Slater's agenda
is perpetuating or winning that case. A negotiated settlement is not in his interest.
Brenner stated that if the planning process doesn't work out, it should have
some influence on the judge's decision since they attempted to make things work.
If they show they acted in good faith, a judge may be more willing to acknowledge
some of their arguments. Gibson stated he doesn't have a good answer to that.
He's not inclined to be critical of Mr. Slater's concerns. He will place them firmly
within the context out of which they arise. They are not entirely helpful basin -wide.
Mr. Slater's analysis of the law is not far off, but it isn't relevant because they still
have a problem to deal with.
Fleetwood asked if the Ninth Circuit Court nuanced the decision by limiting
the tribes water rights. Gibson stated that is correct. The question was whether
the primary purpose of the reservation is represented by a certain amount of water
off - reservation. The decision was a blow for the tribe, which is challenging the
decision. However, Mr. Slater is saying they should not buy into the claim that
there is an implied right, to which he agrees.
Fleetwood stated he is a big supporter of the watershed planning process.
Roy stated she wants a rationale for this. The County is not a water
purveyor. The County is not responsible for anyone's water rights anywhere. Out
of the five initiating governments, the County ends up being the entity that carries
the ball, partly because of the State's legislation. If the County had stepped back
from this issue and let the people who have the vested interest fight it out, that is
an option. However, the County's vested interests are the critical areas ordinance,
salmon recovery plan, and other legislation.
Nelson stated the County deals with land use decisions, which affect all the
rest of it.
Roy stated it's a question they've never aired. The County is taking this
leadership role and committing a lot of resources on pieces of the WRIA plan that,
as one could argue, aren't really the County's concern.
Nelson stated they started the Nooksack Initiative process years ago because
of pending litigation on this issue. They were looking at a tremendous cost. The
County is the only entity that can work with various other entities. Set some
guidelines that would be accepted by all. If they go into litigation, the judge can
work within those parameters.
Water Resources Work Session, 5/17/2005, Page 8
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Roy stated it gives the judge guidance, also.
Brenner stated the County's role was mediator of the plan. The County's role
is not to continue with the costs. The County is working on programs that
complement this plan. The County has taken this plan as far as it should. The
County has other interests it must focus on, such as the critical areas ordinance,
Lake Whatcom Management Plan, and special watershed areas. The public is
confused by this because it seems duplicative. It's time for the County to back off.
The County was instrumental in creating the plan, but it should not be instrumental
in implementing the plan. The entities with vested interests should implement the
plan.
Caskey- Schreiber asked if users who may end up unhappy will go to the
County or court. Roll stated they'll go wherever they get traction.
Anderson stated he doesn't assume all interested parties will participate. He
knows people will object. They will have an opportunity to be in court. The County
is not involved in that. The County should continue to be a major player for two
areas. The largest number of vested interests are the agriculture community and
small systems. Individually, those two interests are not in a good position to
negotiate a resolution with the tribes or duke it out with the federal government.
The City and PUD are in good positions to negotiate with the tribes and in court.
The PUD and City support the WRIA process because of the health of the future
community and economy, which depends on the involvement of the smaller water
users.
Caskey- Schreiber asked if the PUD would be willing to give up some of its
rights to make sure all the other people can agree in the end. Anderson stated the
PUD is prepared to serve water anywhere in the county. They don't have enough
water right to serve all the needs of the county right now.
Caskey- Schreiber asked who will give something up for the good of others.
Anderson stated in most cases, no one will have to give anything up. People will
just have to have agreements about where it's managed. In areas where there is a
lack of water, they need to spend money to fight for water, which takes cash. The
bottom line is that there needs to be an objective entity to facilitate these people,
which the County can do.
Fleetwood asked what Mr. Anderson means by the City and PUD being in a
good position to negotiate. Anderson stated both have forged relationship with
tribes to keep them out of court. The City is working on a habitat conservation plan
(HCP) to resolve issues with middle fork diversion. The PUD chose direct
negotiations with the tribes to resolve issues. The 7,000 individual water right
owners aren't in a position to build those relationship. They don't have the
resources to go to litigation or negotiate. He spent five years building a relationship
Water Resources Work Session, 5/17/2005, Page 9
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
with the tribe to get to the point where the tribes won't take him to court every
time he proposes a project.
Brenner stated the PUD is a vested interest, and Mr. Anderson is speaking for
the PUD. She doesn't have problem with the County acting as a facilitator. The
County doesn't get paid for being the facilitator. The County must remember it has
an obligation to the county as a whole in terms of the projects and plans it works
on. On non - controversial items, it doesn't look like there was much negotiation.
The letter from Tim Slater has valid points. It says that the County is getting
further into the process without having the ability to get out if necessary. The
County can't be all things to all people.
Caskey- Schreiber asked about Mr. Slater's assertion that the negotiations
held behind closed doors will be a violation of the Open Public Meetings Act.
Anderson stated Mr. Slater's concern is that the tribes often want things done
confidentially because it gives them an advantage. Mr. Slater overlooked the fact
that other entities will be present to discuss their water use in private because it is
illegal and they can be sued. They spent time with the State Attorney General's
Office and others to craft confidentiality language that only specifically addresses
the issue of future litigation. It's clear that they have no intention of trying to get
around the Open Public Meetings Act. In terms of getting to what is actually going
on between parcels, they request people participating to sign a confidentiality
agreement that limits their ability to use what they learn in the meeting in a future
court case.
Gibson stated the Open Public Meetings Act applies to places where
government action is taken. When in an executive setting, which this is for
negotiation purposes, the Open Public Meetings Act does not apply.
Anderson stated the PUD's legal counsel doesn't disagree with Mr. Slater's
points, and the intention is to structure the negotiation in a way to satisfy those
legal needs. The one place they don't agree on is how to get there. Mr. Slater is
an advocate of filing a court case first and then negotiate later. They disagree with
Mr. Slater on confidentiality.
Brenner stated Mr. Slater also talked about the idea of pending litigation.
Pending litigation is allowed to be discussed in executive session. She wasn't too
worried about it. She doesn't understand what part of the process will be done in
executive session versus open session.
Fleetwood asked if any staff drafted a formal response to Mr. Slater's letter.
Anderson stated the PUD is working on a formal response to the letter it received.
Roll stated he is preparing all documents from the last six years in one room,
for Mr. Slater to look at. When the community is disappointed in staff for not
accomplishing key things, the staff spends a lot of time doing this kind of stuff. It
will take many hours.
Water Resources Work Session, 5/17/2005, Page 10
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There is a central theme here about the nervousness about WRIA
implementation. There is a pile of plans coming forward. The staff's role has been
to facilitate those plans and get them started. The County doesn't have the cash to
implement everything everyone wants done. As they go through this plan and the
other plans, determine the County's priorities for the next five to ten years. It will
help staff craft a funding strategy and proposals in line with policy direction.
Caskey- Schreiber asked how they will fund the negotiation process and
expenditures. Roll stated that so far, the Council has authorized early action work
tied to instream flows to get the Bertrand and Middle Fork projects started. The
money provided will not fund the projects enough to get to completion.
Anderson stated the State is funding Bob Anderson.
Roll stated there is one to two years of funding now for the Bertrand project,
depending on the pace.
Appendix G
Blake stated they needed a place for people to put additional language about
what the plan means to them, which became appendix G. There are submittals
from participants expressing reservations or approval about the plan. Some are in
the form of resolutions or simply emails.
Fleetwood asked who drafted the resolution that most of the cities signed.
Blake stated the templates used were the City's and the water district's templates.
Brenner asked if the resolutions and information from the land use caucus
indicates there wasn't consensus. Blake stated there was consensus to move
forward with 2055 and 2006 activities, with reservations about specific things, such
as the funding issue. They will have to work that out over the next few years.
They don't want a single management entity with a single funding source. There
was approval to continue to plug away at the overall effort and umbrella ideas, with
some reservations.
The reason staff is providing the Council with this information is because the
Council has its own resolution to approve or reject the WRIA plan. The Council
can't change the plan. The Council can only approve or reject the plan. The
Council could send recommendations back to the Planning Unit. All this information
is to help the Council's consideration. If the councilmembers need more
information, they should let staff know.
Caskey- Schreiber stated Mr. Slater asserted that the plan isn't complete.
Blake stated that's not the first time someone has said that.
Water Resources Work Session, 5/17/2005, Page 11
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Roll stated the State Department of Ecology and entire state caucus says its
a complete plan. It's more robust than any other WRIA plan in the state. Everyone
wanted their issues addressed, but the plan doesn't resolve all the questions. For
that reason, some people won't see this as a complete plan.
Brenner stated that if the Council approves the plan, besides the funding, it
is also not necessarily approving the County's role in the future. Roll stated table
5.1 in the plan commits the County to certain actions.
Caskey- Schreiber asked if the County will fund the groundwater model in the
future. Roll stated it's up to the Council. Do it in a limited area, see how well it
works, and then expand if they want to. Now, the project is proposed for Bertrand
only.
Fleetwood asked if the statute defines a completed plan. Roll stated he
doesn't think so. He asked Ecology if the plan meets the requirements of RCW
90.82. Ecology responded that it does. Therefore, the plan is complete.
Roy stated the Council can't change what's in the table without saying no to
the entire plan.
Brenner stated she's fine with what the County is committed to in the table.
Funding
Blake stated there is a memo on packet page 55. A subcommittee of the
WRIA Planning Unit worked on additional funding resources. The Planning Unit
recognized that there are many programs related to water resources in the county
that need funding. That small group can't determine the best way to do all the
work that needs to be done or identify the appropriate funding mechanism. This
information was put together to help facilitate that discussion. The first discussion
paper is on page 57 about the use of a surface water management utility as a
funding mechanism. The paper was put together by Roger Brown from Birch Bay.
Another paper on page 63 addresses specific WRIA activities that will need
additional funding. Based on input from the subcommittee, the paper identifies the
shortfalls. The next table is a comprehensive list of programs coming up that need
funding. It tried to also identify the benefits to continue moving forward in
pursuing these activities.
(Clerk's Note: End of tape one, side 8.)
Caskey- Schreiber stated that whatever fee is put out to the voters, make
sure there is some flexibility in how they use it. Make sure they are clear about
communicating to the public what the fees are going toward. If the fees go toward
negotiations, the public should know. Blake stated the range of things the funding
will be used for will help define the funding mechanism.
Water Resources Work Session, 5/17/2005, Page 12
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Roll stated the appropriate funding sources will be self- evident when they
identify priorities.
Blake stated the final paper is the subcommittee's list of the various funding
options. It provides additional information on the short- and long -term ability to
meet the financial needs.
Brenner stated that any stormwater management fee the County decides on
needs to go on the ballot. It will force people to understand what is going on.
Make sure people understand and the County gets public support. She is not
comfortable with another fee or tax, given the lack of general public participation.
They can tie that in to all the discussion on stormwater management, which the
Council keeps hearing that people want to do. Make sure people understand what
that means.
Fleetwood stated he is conflicted about whether things of this nature should
go to a public vote. A part of him feels like it's a dereliction of duty. The Council
has the power of the purse. They are the legislators and the ones with the access
to the information to try to understand the complexity. A question is whether the
Council is doing its duty by throwing it out to the voters, who only get a small sense
of the complexity and then vote emotionally.
Nelson stated this isn't going to be an easy process. Understanding the
mechanisms is a big issue. There is a question of the relationship to implement
plans and keep public support for financing and actions. Cities are doing certain
tasks. The County has a limited capacity. He looked at stormwater programs from
other counties. They cannot overlay fees onto other fees. They will have to
coordinate with other jurisdictions that already have fees.
Gibson stated that in thinking about an appropriate governance and revenue -
generating device for stormwater issues, one idea that kept coming up was the
subzone. It has taxation authority and the authority to impose rates and charges.
The difficulty with a device that just allows rates and charges is that a lot of initial
programming can't be paid for with rates or charges. The County does have
taxation authority within a subzone to the extent of unused capacity of the
countywide district. According to the flood control zone district, there is a taxation
capacity of $.50 per $1,000 of assessed value. The County is collecting a portion of
that amount. Therefore, the balance is available partially for the subzones' use.
The Council could apportion a part of the uncollected allowable fee to generate
programmatic and capital revenue for projects within the subzone. It could serve
to unify a process that crosses jurisdictional boundaries. Clearly, the County needs
to have a cooperative arrangement with the city.
Roy asked for a definition of a subzone. Gibson stated a subzone could be
the Lake Whatcom watershed, perhaps the outflow area, and perhaps a surface
area. It's addressed in Revised Code of Washington (RCW) 86.15. The formation
of subzones generally follow watershed boundaries.
Water Resources Work Session, 5/17/2005, Page 13
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Roy asked if this is something the County Council can do or if those affected
in each subzone would vote on their own particular area. Gibson stated the County
Council can create a subzone. The question that is not answered is if the
countywide tax, plus a subzone tax, will represent an increase that needs voter
approval. They need to answer the question legally and think about the question
politically.
Brenner stated the term 'dereliction of duty' is a statement about all the
things the Council does that may not be enough, resulting in a dereliction of duty.
It's not a dereliction of duty because the County is not a purveyor. It is more a
dereliction of duty to proceed with this without the public support that is necessary.
The public doesn't have to be brilliant to understand the general concept of what
the Council is doing.
Caskey- Schreiber asked how they convince the subzone voters to put the
revenue into a big kitty so the County can afford to fund the water rights
negotiation process. Gibson stated he is talking about funding stormwater within
basins, not the negotiation issue.
Caskey- Schreiber asked how to get the money to negotiate water rights.
Gibson stated he's not there. This is a method is to fund implementation.
Roy stated she has mixed feelings about citizens voting or not voting. The
people she talks to understand this issue.
Nelson stated his understanding is that it's not just stormwater they can use
these funds for. Part of it can be used for fish enhancement and environmental
enhancement. Gibson stated RCW 86.15 allows a broad charge, but not so broad
as to allow water rights negotiation.
McShane asked about the subarea providing revenue to assist the County in
dealing with the big problem. He asked if the County could raise the subzone rate
within the limits of the law if there are projects identified in a subzone. Gibson
stated he believes so. There are policy considerations in terms of how one assists
the areas to bear the burden. They need to revisit the cost - sharing notion as it
pertains to subzones versus countywide dollars being applied to subzones.
McShane asked if one could argue that it's okay to subsidize the subzone
because there is a broad county benefit. Gibson stated that is correct. The
advantage of something like a subzone, with taxation authority in addition to rates
and charges, is that it provides funding to get the project off the ground and also
funding for long -term operation. As they look at all the areas of the county with
their own characteristics and needs, keep the governance structure as simple as
possible. That's why he gravitates toward the idea of a subzone.
Water Resources Work Session, 5/17/2005, Page 14
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Nelson stated they are trying to get something set up with the City for Lake
Whatcom. It's difficult. Many of the municipalities don't have a clear
understanding of the reason for a flood control district or what a district can do.
There will be an educational process. Second, the cities may have mechanisms in
place, even though it may be more beneficial to go to a system like this. The cities
will have to evaluate that option according to what they've already done. They
can't layer something like this on top of what the cities have already done. Gibson
stated the City of Bellingham already has a stormwater assessment. A separate
flood control zone district subzone tax to address the same issue may tax people
twice.
McShane stated it is more fair to get rid of the City stormwater fee, and
replace it with this mechanism.
Roy stated the Birch Bay community meets once or twice per month just to
talk about stormwater. There is interest in and support for stormwater
management in the county.
Brenner stated some parts of the county understand it better than others.
There is enough support to approve a measure.
Fleetwood asked the status of funding for WRIA resources. Roll stated there
is no more funding. Funding ended two years ago when there was a transfer from
the flood fee for the water resources work. Since then, they are spending money
the Council already authorized. None of it is allocated from the general fund. Staff
is done on the issue. There is no more money for more meetings or work on the
issue.
Fleetwood asked if there is a timeline for funding. Roll stated it depends on
the Council's priorities. Regarding public support, he needs to tell the public what
the County will do with the money it raises.
Nelson stated there are things from the plan the Council is already doing.
Staff is asking the Council to prioritize. Bertrand Creek is the example of what can
work and what can't work. There should be information from that project at some
point. Roll stated there would be information from Bertrand over the next year or
two.
Nelson stated they can't do everything at one time. He liked the idea of the
subzone. It has a lot of flexibility. The Council will have to make an effort to
provide direction to staff.
Roll stated the salmon recovery plan summary resolution will also come to
the Council.
ADJOURN
Water Resources Work Session, 5/17/2005, Page 15
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The meeting adjourned at 12:05 p.m.
Jill Nixon, Minutes Transcription
The Council approved these minutes on June 7 , 2005.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Laurie Caskey- Schreiber, Council Chair
Water Resources Work Session, 5/17/2005, Page 16