HomeMy WebLinkAboutWater Resources November 16 20041
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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
November 16, 2004
Council Chair Dan McShane called the meeting to order at 10:10 a.m. in the
Whatcom County Civic Center Annex, Second Floor Meeting Room, 322 N.
Commercial, Bellingham, Washington.
Present:
Barbara Brenner
Laurie Caskey- Schreiber
Sam Crawford
Seth Fleetwood
Sharon Roy
Absent:
L. Ward Nelson
WATER RESOURCES WORK SESSION (AB2004 -025)
1. WRIA INSTREAM FLOW
Draft: Instream Resources Protection and Water Resources Program - Samish River
Basin
Bruce Roll, Assistant Director, stated the Samish River basin is part of water
resource inventory area (WRIA) 3. There are instream flow proposals for the Friday
Creek drainage. There are lawsuits between the Swinomish Tribe and Skagit
County. Skagit County is also in a lawsuit with the State Department of Ecology
(Ecology). Because of the lawsuits, work on instream flows stopped. At the same
time, the group wanted to move forward with instream flows and asked Ecology to
go through its rulemaking mechanism. Ecology worked independently to come up
with the instream flow levels. There are three drainages in the basin that go into
Whatcom County, which are Lake Samish, Silver Creek, and the Upper Samish
drainages. Some of the Friday Creek drainage is part of the Samish drainage area.
Staff met with Ecology. Ecology hopes to work through this and subsequent
drafts with the counties in the next two or three months, with a public draft
available after the first of the year. That is a different schedule than before.
Originally, they planned a public comment in November. Ecology said it is not
prepared yet for the public comments and wants to work more with the counties.
Key points in this draft include how Lake Samish is managed and a history of
Lake Samish. The history of the lake level goes back to the mid- 1980's, when the
Department of Fish and Wildlife asked that flows be augmented out to two cubic
feet per second (cfs) during dry periods of year. In exchange, property owners in
the basin were granted water rights if they draw from the lake. Almost everyone
Water Resources Work Session, 11/16/2004, 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.
has applied for a water right. Twelve applications are pending until the instream
flows are decided.
As a result of that negotiation in the late 1980's and early 1990's, a Lake
Management District was created to control the lake level. It was established
through a county ordinance. The ordinance also identified fees charged to people in
the drainage when the district was established. The district has been operating
with that fee for the past ten years to manage the lake levels only.
Ecology proposes that if the lake management district continues to operate,
Ecology would be willing to grant water rights to the twelve pending applicants and
any future applicants, only if the two cfs level is maintained. Exempt wells are
considered hydraulically connected to the streams and part of the instream flow
rule. That will influence how the County manages land in the areas.
The Silver Creek and Upper Samish drainages are closed to future
appropriation, other than a provision to reserve a certain amount of water for
future growth. Ecology proposes a level of one cfs to be set aside for future
withdrawals. If the County wants to use that reserve, it would adopt a County
ordinance regulating how the water would be managed in conjunction with the
flows and reserve waters.
Fleetwood asked if a future appropriation would lower the flow if the water is
fully allocated. Roll stated a level of one cfs wouldn't have a profound influence,
according to Ecology and the Department of Fish and Wildlife. He's interested in
understanding why Ecology derived a level of one cfs, how much ability someone
would have to get an exempt well status, and how many exempt wells can happen
in Samish and Whatcom Counties. He will be working with the County planning
department and the portions of the Samish drainage that is in Skagit County.
Brenner asked who is on the WRIA 3 Planning Unit and why they couldn't
reach consensus. Roll stated the group got to a point where some flows were
recommended at such a high level that they weren't achievable. The Swinomish
Tribe wanted the higher level and wouldn't change its perspective. Skagit County
finally quit the planning effort. That's when Ecology stepped in.
Brenner asked if the Tribe can appeal Ecology's decision. Roll stated Ecology
has to respect tribal claims and rights. The tribes have been engaged with
Ecology's process.
Brenner stated she understands that the Tribe has the last word. Roll stated
Ecology has the last word. Ecology is obligated to consult with tribes, but
regulating water rights and quantity is an Ecology charge.
McShane stated the value set for instream flow and drainage is probably
unachievable. Tribes may be happy with the decision and not interested in pushing
it further because it may lose ground.
Water Resources Work Session, 11/16/2004, 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.
McShane stated it sounds like the instream flow for that drainage can't be
achieved, and the Tribe is not interested in pushing back because they will lose
ground. Roll stated they're lower, but still pretty high. The difference in the two
WRIA approaches is that in WRIA 3, Ecology is doing the rulemaking efforts. WRIA
1 is negotiating its flow locally, which will drive Ecology to do a rulemaking
consistent with the negotiated amount.
Roy asked what happens if Ecology doesn't like what WRIA 1 comes up with.
Roll stated Ecology has been a representative at the table all the way along.
Roy asked about the Lummi and Nooksack tribes. Roll stated they are very
much engaged with determining instream flows.
Roy asked if the tribes and Ecology agree enough that they don't anticipate a
problem.
John Thompson, Senior Planner, stated the difference between two WRIAs is
that the Lummi Nation is clearly interested in quantifying its water right. The
rulemaking for WRIA 3 would not address water rights for the Skagit tribes.
Caskey- Schreiber asked who would augment the water being drawn from
Lake Samish to the streams to allow further development. Roll stated they are
doing that now, since 1992, locally.
Caskey- Schreiber asked if there is a risk for people drawing water from the
lake. Roll stated that if they continue the flow regime downstream, they would be
open to additional withdrawals and new water rights. This version implies it also
works for groundwater withdrawals in the Samish drainage. The approach for the
Samish drainage allows for some level of future growth and still protects fisheries.
The current strategy for regulating instream flow is a shared responsibility between
Ecology and the local WRIA.
Caskey- Schreiber asked if this is a significant increase. Roll stated it is not
for the Samish drainage. They still have to deal with groundwater in Silver Creek.
Staff is doing an analysis of other drainages and will provide an update later on.
Paul Chudek, Environmental Health Supervisor, stated the Silver Creek
drainage includes the Cain Lake and Reed Lake area. There are a couple of small
public water supplies that serve the area. It is a well- defined service area that is
not likely to expand. Groundwater is available. Wells have been drilled deep
enough to be reasonable sources of water. Because there is not a lot of public
water, development would subtract from the reserve, which is split between
Whatcom and Skagit counties.
The Upper Samish drainage goes to Wickersham. It parallels the south fork
of the Nooksack River at Saxon. It belongs to Whatcom County and only goes to
Water Resources Work Session, 11/16/2004, 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.
the county line. Wickersham is the only water supply. Limited service area and low
capacity to expand. The few private wells mostly are shallow, less than 20 feet.
There is groundwater but no public water. All new development outside of
Glenhaven lakes and Wickersham will draw from the reserve.
Roll stated they will discuss in the future what one cfs will get them and how
the areas can develop.
McShane stated one cfs is 648,000 gallons per day. The County would
assign a level of water use per day, and subtract that amount from the total.
Chudek stated other conditions must be followed to allow that to occur.
Caskey- Schreiber stated she is worried that augmenting this stream will
exacerbate development and encourage sewer and water installation.
Sylvia Goodwin, Planning Division Manager, stated they don't know how
much of the 648,000 gallons will go to Whatcom County. She submitted
information (on file) on potential build out. The Friday Creek area has a potential
build out of 2,639 units. The Samish River north area potential build out is only
346 units. She didn't split between the Lake Samish area and surface water and
ground water and Cain and Reed lakes. Some units would use surface water from
Lake Samish and other units would use groundwater that would subtract from the
reserve.
Chudek stated there are lots that are away from Lake Samish and don't have
access to drawing surface water from the lake.
Goodwin stated staff can further split the potential build out in each
watershed area. They haven't had time to do it yet.
McShane asked about Silver Creek. Goodwin stated the Friday Creek
statistics include Silver Creek.
McShane stated it also includes Lake Samish and the Cain and Reed lakes
areas.
Roll stated staff will divide the information by drainage. On the table now is
a requirement for Whatcom County, if it decides to participate, to acquire the
reserve water for future allocation. This rule applies from when it was enacted and
to future appropriations, not existing appropriations. This rule lumps exempt wells
in with all resources because of potential hydrologic continuity and the influence on
instream flows.
Chudek stated that if this rule passes, exempt wells are treated like
everything else. Until then, people living there now have a right -in -time.
Water Resources Work Session, 11/16/2004, 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.
McShane asked if this rulemaking would step in for accounting of existing
and future exempt wells, and would create management for instream flows, which
is a significant change. Roll stated the proposal is for county people to have access
to reserve water. The County must adopt ordinance with all these conditions. If a
public water supply becomes available, residents would have to hook on. He read
the other conditions on Council packet page 13.
Crawford asked if there is still an effort to bring in water and sewer to Lake
Samish. Roll stated there have been attempts.
Crawford asked if it is a question of money. Chudek stated it is a question of
both money and the will of the community.
Crawford asked if the barrier is cost. Chudek stated a barrier is also that
residents want to control growth in the area by controlling the amount of water that
is available. He's not sure in the case of one development if the reason for not
bringing in public sewer and water is financial or other considerations.
McShane stated he's not sure if that issue is there anymore, as it was at one
time. The potential build out is much less. There is an existing plat that would
have to be served by public water. Bringing in public water and sewer might pencil
out in the future, depending on future property values. Once the line goes in, some
people will be required to hook up.
(Clerk's Note: There was more discussion that is inaudible due to
construction occurring outside the building.)
Crawford asked about an existing development at Lake Samish.
Amy Pederson, Planner II, stated that development has received water
rights.
Chudek stated the developer would rather bring in a water supply than treat
water. To move the project forward, the developer was willing to build its own
treatment system.
Brenner asked about forced no- protest agreements not being legal, according
to a recent court case. Goodwin stated that court case was about annexation, not
hooking up to sewer and water service.
Roy asked where the public water would come from theoretically. Roll stated
public water would be drawn from the Skagit River.
Caskey- Schreiber asked if there are more paper rights than what is allowed.
Roll stated he would ask that question.
Water Resources Work Session, 11/16/2004, 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.
Chudek stated that if they don't exceed their water right, they can change
their service area boundary. The water right can be used anywhere within the
service boundary. As long as they don't exceed their water right, it can be put to
any beneficial use.
Crawford asked what happens if WRIA 3 prefers to have the Lake Samish
folks have public water. He asked if there is a cost mechanism that water could go
to Lake Samish in a larger scheme. Roll stated the planning process didn't talk
about it before the planning group quit.
Crawford stated it's important to make sure they know that county lines are
less significant than doing what's right for the watershed. Look at any possible
solutions they see as appropriate.
Roll stated staff will bring forward more information on future build out
scenarios in the drainage and what one cfs means. Staff will talk in the future
about Whatcom County's role and what it would be responsible for.
(Clerk's Note: End of tape one, side A.)
Chudek stated water is available for public health purposes. This is more for
water used outside the home, such as for irrigation. He's hopeful they can figure
out a way to have assurances that people understand their obligations.
Instream Flows in WRIA 1
Bruce Roll, Assistant Director, stated the WRIA 1 process is more locally
negotiated than the WRIA 3 process. It is driven by the participants. Ecology will
eventually do its rulemaking consistent with the group's decision.
There is a draft instream flow strategy. The Planning Unit and the Joint
Board felt that they should begin in clearly defined pilot project areas so they can
refine and understand how to do this in the rest of the WRIA.
There are two instream flow pilot project areas. One is in the Bertrand Creek
drainage. Bertrand has a Watershed Improvement District (WID), which includes
participants representing the residents of that geographic area and from other
governments.
The second area is the Middle Fork of the Nooksack River, and is tied more to
City of Bellingham issues. The project includes tribal interests and City of
Bellingham water right interests. It is much different in nature than Bertrand.
Those pilot projects will move along at the same time. The Lummi Nation
wants to assert its tribal rights through this process. It's part of the WRIA plan.
They will begin to decide what that tribal claim is as they go through the instream
flow activities.
Water Resources Work Session, 11/16/2004, 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.
Fleetwood asked if the Lummi plan is currently pending litigation. Roll stated
that is for on- reservation issues only. This plan is for off - reservation issues.
Jeff Monsen, Public Works Director, stated there are two claims. One is for
fisheries and one for water for the reservation. A third element is groundwater on
the reservation.
Roll stated the pilot projects will hopefully lead to flow recommendations for
the two drainages.
Most member governments support the Bertrand project. The level of
support from each government will be different. For instance, the Lummi Nation is
more interested in dealing with instream flows on the Middle Fork because of
impacts to fisheries. He submitted proposed memoranda of agreement (on file) for
each pilot project and their participants. The scopes of work will come out in the
next three to four months. The agreements are written as though the Joint Board
is the administrator for instream flows. He and the Executive differ from the other
participants about everyone's roles in implementation. The agreements are
elements of implementation. Whatcom County is named as a participant in the
agreements. He recommends the County approve the agreement as a County
interest, not as a participant of the Joint Board. Implementation would be done
only in those areas where the County is willing to act. They are at a stage where
implementation happens through regulation updates. Other participants feel that
the Joint Board should implement all the pieces, which won't be effective. The
Planning Unit wants the instream flow pilots to move forward, but most participants
don't want to participate in every aspect of the projects, only do general oversight.
Set up a strategy where the stakeholders with an interest will act.
Roy asked if the concern is that the Joint Board not carry the responsibility it
has up to this point, and that the Joint Board needs to change so that the individual
participants will act independent of each other. Neither the County nor the Joint
Board needs to be the lead agency on all the implementation projects. Roll stated
focus on the stakeholders. Bringing aboard the Joint Board has historically also
brought along the whole Planning Unit with it. They never enter a Joint Board
proposal without Planning Unit concurrence. However, implementation must be
different from plan development.
Crawford asked if the Planning Unit members agree. Roll stated they do.
Ultimately, the recommendations go back through the Planning Unit. Use the
Planning Unit as the mechanism for establishing flows.
Thompson stated that as the scope of work is developed, it will define the
County's role.
Crawford asked where the agreements go for approval. Roll stated the
participants of the proposal will agree to it. There is no intent to take the
Water Resources Work Session, 11/16/2004, 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.
agreements to the Planning Unit for approval. The agreements recognize the plan
for setting instream flows, so they are consistent with the Planning Unit.
Brenner asked if the Planning Unit should at least weigh in, since the Joint
Board has used the Planning Unit for everything else. Roll stated its not the same
mechanism they will use for implementation. After the first of the year, there is no
more money to support the caucuses or Planning Unit. Planning Unit members
don't want to continue to meet monthly forever.
Sue Blake, Senior Planner, stated the agreements are made available to the
Planning Unit, and they will take comment.
Roy stated she accepts Dr. Roll's explanation. If the Planning Unit
understands the process, that's fine. The concept of implementation is to move
away from using the Planning Unit. They don't have the money to continue it, and
that's the way the system has been set up from the beginning. Individuals can
comment, but having the Planning Unit approve or deny the agreements doesn't fit
with the process.
Roll stated including Ecology as a signatory to the agreement is not in the
current draft, but was discussed. He recommends Ecology be included because it
has to receive and administer the results of the negotiated process at some future
date.
Thompson stated that now, Ecology is a participant in the process, but not a
signatory.
Monsen stated the WRIA planning process created the Initiating
Governments and Planning Unit with the goal to adopt the plan. If the State
participates in the plan process through the Planning Unit, the State is obligated to
implement its role. Now, they are talking about implementing the plan when
adopted. They've never talked about the organizational structure during
implementation. The current thinking is that elements of the plan will be
implemented by a different collection of entities. The only way Ecology and the
State remain engaged is either through the Joint Board and Planning Unit, or it's
engaged in specific activities. He doesn't recommend maintaining the large
organizational structure for implementation.
Roy asked if Ecology has a role in implementation of instream flows. Roll
stated the County wants Ecology to receive what the group recommends, and
Ecology will do a rulemaking process to establish the legal framework. Ecology
should be there throughout so it is committed to the local process. Ecology is
needed to resolve problems before dealing with water right issues.
Monsen stated the State has a role in water rights and instream flow,
however it can't resolve the issue, including tribal claims, because tribal claims are
a federal matter. Implementation should be focused task by task. However, if a
Water Resources Work Session, 11/16/2004, 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.
tribal claim is part of instream flow, the State is a party to the decision, but can't
resolve the issue.
Roy asked if the State has the ultimate approval on instream flow if the
tribes agree. Monsen stated the State sets the instream flow. That date the flow
rate is set becomes the priority date in the context of water rights. All water rights
before the priority date are senior to the flow. That's where the federal interest can
step in and move the target date back in time.
McShane stated the goal is to have a healthy stream and try not to let the
legal issues get in the way.
Monsen stated they need to move cautiously to avoid unintended results.
Roll stated decide how to manage the Bertrand area before they put a huge
legal framework on that group. They need to also understand what it means to
work through it. There will be a future draft of the agreements. It seems like
everyone approves of the draft agreements.
The Council concurred.
Monsen stated the County has a different recommendation from the
participants on the Joint Board. Everyone else wants the Joint Board to continue to
administer the implementation projects, and the County wants everyone do their
own implementation.
Blake stated the agreements include reduced responsibilities for the Joint
Board and the Planning Unit. The actions are divided between the different
jurisdictions.
Roll asked if the Council agrees with including Ecology as a party to the
agreement.
The Council concurred.
Roll stated he wants to add an overlay that is the tribal claim. State
legislation identified $200,000 to resolve tribal claims in WRIA 1. Ecology proposes
to enter into a contract with Dr. Bob Anderson, a professor of law at the University
of Washington, to serve as a diplomat between the tribal claim and these efforts as
they move forward.
McShane asked if this would be done to work something out for the good of
the streams and water users do it doesn't blow up later into something legally that
no one thought of. Thompson stated Dr. Anderson has status in Washington D.C.
by working on federal negotiations on the Lummi Reservation. Getting the financial
backing to the basin to do that brings political support to resolve those water right
issues. Dr. Anderson has the skills and status needed.
Water Resources Work Session, 11/16/2004, 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.
McShane asked if the Lummi representatives are happy with Mr. Anderson.
Roll stated both tribes are happy with the choice.
Thompson stated there may be some disagreement in the community
because of his work in the past on behalf of the tribes.
Roll stated go cautiously with legal framework in Bertrand. For the Middle
Fork project, fewer people are involved. Resolve that initially to help them
understand the tribal claims. The WID needs to understand its role before creating
a legal framework.
Monsen stated Bertrand has issues regarding State water law.
Fleetwood asked when they will begin implementation of WRIA, salmon
recovery, and established instream flows. Monsen stated they have invested a lot
of money in a lot of great data collections and management. That will help them
make difficult decisions.
Roll stated that between the Middle Fork and Bertrand projects, they can
make good headway into 2005. There will be recommendations from those
projects in a year and a half.
Caskey- Schreiber asked if Whatcom County will hire Dr. Anderson. Roll
stated Ecology hires Anderson. He's not asking to put this through the Joint Board.
The interest in Dr. Anderson is tied to County's interests the Bertrand and Middle
Fork projects. He won't necessarily represent the County, but the County will work
to come up with a strategy that everyone can live with.
Roy asked the people who would object to this would be the agricultural
people. Roll stated he talked to Henry Bierlink about the Joint Board versus
individual governments. Mr. Bierlink doesn't need to support Joint Board.
Regarding Dr. Anderson, Mr. Bierlink agrees with him that they need to put
strategies in place before they put a legal framework on Bertrand.
(Clerk's Note: End of tape one, side 8.)
Roy asked if the farming community would perceive Dr. Anderson as a tribal
advocate.
McShane stated the State is committed to the success of the Bertrand WID.
It came up with $200,000 for Dr. Anderson.
Salmon Recovery Plan
Roll stated members of the Shared Strategy Development Committee
requests the Council write a letter identifying early action items to send to Olympia.
Water Resources Work Session, 11/16/2004, Page 10
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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.
He submitted a draft letter (on file). By the end of the year, craft something to
send forward in support of the salmon recovery plan. There will be a summit in
January, including all Puget Sound salmon recovery plans, to go through these
types of letters. He would like to hear from the Council on any suggested changes.
McShane stated he will put this proposed letter through the Council's letter
writing policy process. It will go in the Council's packet for approval.
Roll submitted a packet of information (on file) describing to the early actions
described in the letter.
Last, he submitted a white paper (on file) on what they've accomplished and
how they will fund WRIA implementation in the future. The white paper was crafted
by a number of the WRIA participants. The County has been silent on this topic for
some time. The struggle is understanding what the County will implement and the
resources needed. There is no shortage of people who want to continue the Joint
Board and Planning Unit framework indefinitely, and want more resources to
continue the effort. He submitted the paper because the Council will probably hear
from those people. There are two proposals for funding from a countywide tax,
either through the County or through Public Utility District (PUD) 1. Executive
Kremen commented that the County staff doesn't have the resources to implement
something like this. The County should make sure it understands its priorities
before going out for funding. Executive Kremen proposed funding not be driven by
the County, but he didn't say no to the possibility of the PUD 1 taking it on if it
wants.
Caskey- Schreiber asked if the WID would be arm of implementation, and
each area should build in funding as it wants.
Crawford asked who wrote the white paper. Roll stated a variety of people,
including Joint Board staff, contributed to the paper.
Brenner stated she is not comfortable with the PUD collecting the countywide
tax.
Roy stated her concern is perpetuating the Joint Board and that this is a
control issue.
Crawford stated the white paper doesn't throw out ideas. It offers
conclusions without showing analysis, yet no one is taking responsibility for the
document. He is concerned about that, and he doesn't accept the document. They
need information from someone with a proposal who is willing to talk to them about
it.
McShane stated this paper is for information. Discussion is on the
fundamental County philosophy for its role with water. The County should protect
the resource, but it is not a purveyor.
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Crawford stated he doesn't object to the argument in the paper, but the
paper's presentation. Roll stated a perspective of staff is that they want to engage
in elements of implementation and see pieces moving forward and understand what
its going to take to get people committed to moving forward.
Brenner stated consider a levy. People don't like property taxes. A levy is a
better way to go. There has been support in the past for conservation futures.
This brings out the same protectiveness in people.
Roy stated it's premature to talk about how they are going to do this. They
don't even know if they are going to do this.
Brenner stated she agreed it may not be necessary.
McShane stated the councilmembers can read the paper, but it is not before
the Council at this time.
(Clerk's Note: The Council took a five - minute break at noon.)
2. LAKE WHATCOM
Lake Whatcom Work Plan Update - Watershed UGA's
Erika Stroebel, Senior Planner, stated City and County staff worked on urban
growth area (UGA) options. They identified some areas where they can take
watershed protection actions in 2005.
Sylvia Goodwin, Planning Division Manager, stated areas are built out in the
Britton Road and Hillsdale area. A maximum of 131 additional housing units can be
built. As of October 2003, there are 150 vacant lots in Geneva. Almost all areas
have been platted. She displayed a map of the areas.
One option for watershed protection is density reduction in the Hillsdale area,
because the City of Bellingham has control of sewer and water utilities. Urban
residential zoning without utility service is one house per five acres. Platted lots
already have access to water and sewer. Many of the bigger lots don't have access
to utilities. The City will allow utilities if an owner agrees to a density decrease.
The problem with a downzone is that the lots can be platted smaller if they are
rural lots, even without sewer service. An owner can get more density from a
downzone.
McShane stated they could change the rules in that area anyway. Goodwin
stated another option was to make sewer service mandatory, but they would have
to work closely with the City and make sure they don't have a takings challenge.
There must be an agreement with the City to allow sewer extension in certain
circumstances.
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Caskey- Schreiber asked what the goal is for the area's density. Goodwin
stated at the last joint meeting, they discussed whether it should come out of the
UGA and be downzoned. The final decision for that is the County Council's. In her
opinion, there is no value to remove the area from UGA other than the Denke
property.
Stroebel stated that through the Lake Whatcom Management Program, there
is a special designation for UGA's in the watershed. Another option is to have a
special designation for those areas that don't move the UGA boundary, but is still
protective.
Kurt Baumgarten, Planner I, stated the special designation is described in the
Comprehensive Plan as a water resource overlay /special UGA, but is not defined
and has not been used. The County can define it with a new set of stricter
regulations for the overlay.
Fleetwood asked if these areas constitute about 10 percent of the
developable units around the lake. Goodwin stated the downzone took out around
1,000 units. The Sudden Valley density reduction program took out about 1,400
units.
Amy Pederson, Planner II, stated the rezone is about 400 units.
Goodwin stated that is a total reduction of 2,800 units. In addition, the City
and County have bought development rights.
McShane stated a cost of stormwater issues in urbanized areas is a concern.
They are constrained in designing systems. He would like to see predictability, or
know if they need to over - design for future complete build out. The two ideas are
to tighten the cluster development and the unused UGA designation. Goodwin
stated tightening the cluster development for areas already platted.
McShane stated that even though there are no big tracts, it is a sensitive
area.
Caskey- Schreiber stated a concern is that Water and Sewer District 10 is
going to expand. She asked if all these areas are in the jurisdiction of the City of
Bellingham. Goodwin stated the County has an interlocal agreement with the City
to use City development standards within the UGA.
Fleetwood asked what is problematic with figuring out how to fund
stormwater retrofits that collect stormwater and keep it from going into the lake.
He asked if that is viable.
Jeff Monsen, Public Works Director, stated that most entities start by having
a public storm sewer, which the County doesn't have anywhere in the county. If
Water Resources Work Session, 11/16/2004, Page 13
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the Council believes that a public entity needs to have that facility, the next step
would be to create the authority and develop that system.
Fleetwood asked if a public storm sewer would divert into the City's system.
Monsen stated there is a difference between a storm sewer to collect and treat
water and a sanitary sewer. In both cases, they are capturing and managing the
quality of the water. A stormwater system is a collection system.
Crawford asked if there are funding options to allow the County to make the
determination of who benefits and to assess those who benefit. Monsen stated that
if they fund through a fee structure, they must allocate based on benefit. It is a
utility.
Crawford asked if the County has not done this because the Council has not
given the Public Works Department that direction. Monsen stated that is part of the
reason. As they go through the design process for the Cable Street project, various
scenarios for the creation of a utility will come up. There is a range of options for
what type of system they will create.
Crawford indicated on the map areas they should consider.
Fleetwood asked what they'd have to do to create a public storm sewer in
this area. Monsen stated they would have to make sure there is continuity between
the different pieces of the system. Understand how water flows. Also, understand
there is a water quality function.
Roy asked if a stormwater system includes a treatment plant. Monsen stated
it depends on the level of treatment they choose. They would have to decide how
much phosphorus, for instance, they want to remove. The costs depend on level of
removal.
Caskey- Schreiber stated the water has to go back into the lake. She asked if
the City already collects a stormwater fee, if the City fee will conflict with any fee
the County collects, and whether people who don't negatively impact the watershed
should pay. Any stormwater fixes will be costly and cross - jurisdictional. Monsen
stated the fee structure is based legally in benefit received. If they want to have a
public debate on sharing the cost inside the community, then they are talking about
a tax.
Fleetwood stated this is the reason they should consider what a jurisdiction
would look like and what the equities would be.
(Clerk's Note: End of tape two, side A.)
Roy asked if the only people who benefit would be the 85,000 people who
drink the water. She asked if it is reasonable to think that people who drink the
water would pay the fee. Monsen stated they can't assess a fee on someone who
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lives inside the City of Bellingham. The County can tax those people for the
County's general fund.
Brenner stated that would require all taxpayers to pay.
Roy stated they need to further explore this option, even though it may be
too expensive and not wise politically. They all need to understand what it means
to have an effective stormwater system.
Crawford stated one option is to have a hearing that is policy based, so the
public can provide input and the Council can make a decision. Then, staff can
respond accordingly. This may be worth having a hearing on, so the Council can
make a policy direction for the administration.
Fleetwood moved to form a discussion committee on Lake Whatcom
stormwater systems.
McShane stated Councilmember Fleetwood should spend time figuring out
exactly what he has in mind before bringing it forward.
Fleetwood agreed. He withdrew his motion.
McShane asked the density to which people must reduce before the City
provides sewer and water. Baumgarten stated it is very variable. Staff has talked
with City planners about formalizing that policy so it's more predictable.
McShane stated a question is whether it remains in UGA. Zoning should be
predictable.
Goodwin asked if they want to go to the density of the smaller areas that are
there already. There are areas with larger five -acre lots.
McShane stated zoning seems to have been driven in the past by the lots
that already exist in an area. He asked the flaws of the type of zoning that creates
a lot of holes in an area. He asked if there is a problem with creating a zoning limit
that will create more nonconforming lots. Goodwin stated legal issues will come up.
If they do a blanket change, everyone is treated equally. However, if one neighbor
has different regulations from another, there will be legal challenges. It can be
considered spot zoning. There can be exceptions for public health and safety
reasons.
Brenner stated exceptions are happening now to allow public water and
sewer beyond the UGA for reasons other than public health and safety. Goodwin
stated people can't do that legally, according to regulations. However, they can
always hook people up to the lines that are there.
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Brenner asked if the County can use the public health and safety reason for
this. Goodwin stated it can. If they downzone Hillsdale and not put utilities out
there, they can probably do that. Don't downzone to one- or two -acre zoning
because that is urban sprawl.
Fleetwood asked if staff can contemplate the benefits to water quality if there
is sewer with more density, or no sewer with less density. Goodwin stated they
can't do that level of detail with a model.
Stroebel stated staff can extrapolate information for general estimates, but
can't get that specific or a particular area.
Goodwin stated there are too many variables.
Roy asked if they have done as much as they can in terms of land use, and
property acquisition, and density reduction. Also look at what it will take to keep
stormwater out of the lake. She wonders if they have done all they can do in terms
of land use, and if they can start looking at retrofitting.
John Watts, Bellingham City Council Member, stated one option is for the City
and County to work on a site specific pilot project such as the Park Place system,
and learn from that. There are things different from phosphorus that are of
concern. They would see how the pilot project works, evaluate costs versus
effectiveness, monitor the outcome, and figure out all the liabilities. They could get
real information in a short period of time.
Caskey- Schreiber stated make sure stormwater efforts are based on good
science. The total maximum daily load (TMDL) study will figure out where most of
the pollutants come from. Target those specific areas. Retrofitting for stormwater
will not fix the problem. Adding more residential development will exacerbate the
problem and make future fixes more expensive. She advocates for density
reduction wherever possible. They learn more and more that all the effects add to
the problem. Basin three is beginning to show signs of degradation.
Fleetwood stated it will be impossible to get public support if the public
perceives that the lake can't be saved. He hopes they're not yet at that point.
Crawford stated he's not worried at all about basin three. He likes Mr. Watts'
idea. It will require some property acquisition. He is concerned about basin one
and should address that stormwater issue and associated funding options.
Stroebel asked if the County and City staff should continue to work on these
options together in 2005.
The Council concurred.
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(Clerk's Note: The remaining five - minutes of the meeting discussion is
inaudible.)
ADJOURN
The meeting adjourned at 1:05 p.m.
Jill Nixon, Minutes Transcription
The Council approved these minutes on January 11 , 2005.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dan McShane, Council Chair
Water Resources Work Session, 11/16/2004, Page 17