HomeMy WebLinkAboutWater Resources February 18 20031
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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
February 18, 2003
The meeting was called to order at 10:05 a.m. by Council Chair Dan
McShane in the Whatcom County Civic Center Annex, Second Floor Meeting Room,
322 N. Commercial, Bellingham, Washington.
Present: Absent:
Barbara Brenner Sharon Roy
Laurie Caskey- Schreiber
Sam Crawford
Seth Fleetwood
L. Ward Nelson
WATER RESOURCES WORK SESSION (AB2003 -025)
2. WRIA 1 WATERSHED MANAGEMENT PROJECT
WRIA 1 Water Policy
Bruce Roll, Water Resources Division Manager, stated the Council at its last
work session expressed an interest in learning more about the proposed water
policy program identified in the Parametrix work. At that point, Council requested
that Parametrix not move forward with that element pending a more thorough
discussion of water policy issues in Whatcom County.
Brenner stated those were two separate things that happened. There was a
vote to not do that part. There was another request to hear more about it.
Approval wasn't pending. They are two separate issues. Roll stated that is correct.
He hoped that Council would revisit whether it wants to continue working on this
element.
Tom Anderson, Public Utility District (PUD) 1, stated water rights as issued
by the State specify QI, instantaneous quantity, also called rate, and QA, which is
an annual volume. Water rights are limited to place of use or area certified and the
point of withdrawal. When first applying for a right, the application turns into a
permit. The permit specifies a length of time in which the owner must perfect the
water right by putting the water to beneficial use and turn in proof of appropriation.
The State then issues a certificate of water right. Perfection is how they get from
permit to certificate.
Some people refer to water rights as property rights. They have similar
aspects, but they are not exactly the same. To be able to buy and sell that water
Water Resources Work Session, 2/18/2003, 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.
right, they would have to be able to transfer it. Water rights are limited to place of
use. They would have to move the place of use from where it was originally issued
to the new place. There is a question of whether the rights go with property.
Normally, a right runs with the land unless otherwise specified.
Brenner asked what would happen to the water right if it doesn't get sold
with the property. Anderson stated the owner could put in for a transfer. Water
rights in the state are subject to a "use it or lose it" condition to remain in good
standing. The State Department of Ecology (DOE) has to take an action to rescind
the water right. The DOE has done that, but it is not very common.
The statutes for groundwater, not surface water, allow an exemption to
applying for a water right for a use of up to 5,000 gallons per day for specific
purposes. It is not an exemption from a water right, but is an exemption from
applying for a water right. The owner is still subject to the regulations of the water
law statutes. A neighbor could claim that an exempt well is impacting his or her
well that has a senior right. The neighbor could go to court and force the exempt
well to shut down.
Brenner asked when that has ever happened. That's difficult to prove.
Anderson stated in places that have been adjudicated, the exempt wells are
included in the adjudication process. Adjudication is not common in the State of
Washington.
Nelson asked if there is a timeframe in which a person must file for
adjudication against an exempt well. Anderson stated there is no statute of
limitations. The water law statute dictates first in time, first in right, which means
that a person is senior if he or she used the water first.
Brenner asked if an exempt well is a water right. Anderson stated it is. It is
a de facto water right.
Anderson stated there are lots of problems with the system. The reason they
have a problem is that there are illegal users because it is difficult to be a legal
user. He has a transfer application into DOE that has been in for ten years. It is to
move a water intake one - quarter mile down the river. It has cost him $80,000 to
maintain the old intake. Any transfer must address the impact of that transfer on
all existing water rights, both senior and junior water rights. Because the State's
record keeping has been inadequately maintained, there is no way for him to know
what water rights are valid.
Nelson asked if the DOE is required to deal first with new applications, then
transfers, and then others. Anderson stated the priority mechanism historically was
chronological. Two years ago, the State passed the "two lines bill" to create a line
of applications for changes and a line for new applications. Theoretically, the DOE
does the changes first. The DOE is making some progress in catching up on their
change applications, but not their new applications.
Water Resources Work Session, 2/18/2003, 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.
Nelson stated he couldn't visualize that there is that many new applications.
He asked how many they have and the volume. Anderson stated the State has
about 600 applications in Whatcom County for new water rights. Pre -water
resource inventory area (WRIA) planning in the mid 1990's, the agriculture people,
many of whom are technically illegal, got in line and filed 500 applications six years
ago.
Brenner asked how much is based on State law and how much is federal law.
Anderson stated it is all State law. All of the states west of the Mississippi operate
an appropriation doctrine, first in time first in right. The Eastern states operate a
riparian system, which is much different. Each state has its own set of rules. Not
all states have 'ruse it or lose it" policies.
Claims are a nightmare. Technically, the original surface water statute was
passed in 1917. State policy before that was to require a posted notice on a tree
and filing with the County. When the State passed the original statute in 1917, it
led to opening the claims registry. If someone used water before 1917, that person
could file a claim for water based on that use. If a person used water continuously
from 1917 forward, that person could convert the claim to a water right. The
problem with the claims issue is that, in the late 1960's, California wanted the
Columbia River. Some legislative statute encouraged everyone to file claims. The
goal of the State was to make it clear that the Columbia River water was all
Washington's water, and California wasn't going to get any. A problem was that
the people didn't understand the issue, so people filed claims. In Whatcom County,
over 4,000 claims were filed. Since then, the State has opened the claims registry
two or three times. A problem is that the majority of the claims are invalid because
the claims talk about first use of water in 1952. A problem is that a claim is not
valid unless water was used prior to the implementation of that statute. For
groundwater, that was in 1948. For surface water, that was in 1917. The real
problem with the claims was that the document they received at that time says
"water right claim" instead of "water right certificate."
One of the prime drivers of illegal use is that the system currently does not
function. There have been a number of certificates issued for Lake Whatcom and
Lake Samish. Blaine was issued a certificate for groundwater. There have been no
other certificates or major permits issued in ten years.
Nelson asked why they have not been processing any applications. Anderson
stated there was a proposal to change the fees a number of years ago. The fee
proposal failed, and the State failed to include any money in DOE's budget. The
DOE staffing level went from 60 people down to 15 people to process water rights
statewide. There are a lot of court cases. DOE staff time goes into spending time
in court.
Crawford stated something else is going on. Even 15 people in court often
can process at least one application.
Water Resources Work Session, 2/18/2003, 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.
Anderson stated that he's never received an answer from DOE about that
question. One reason Whatcom County is doing watershed planning is that DOE
sets instream flows in Whatcom County and closed the majority of the basins. In a
closed basin, a person will not be issued a water right per the statute. That is one
reason the DOE hasn't processed any applications and the one reason Whatcom
County is doing watershed planning. That is a driver for watershed planning for
agricultural users. All the basins west of Deming are closed. The only one in
partial closure is Terrell Creek.
Crawford asked if they will be able to open some of the basins through
watershed planning. Anderson stated he is optimistic that they can. A driver of
illegal use is that if a water right applicant can't get through the system to be legal,
and that person has to live, he or she does whatever is needed. That has become a
real problem in reality. The Agriculture Preservation Committee estimated that 60
percent of agricultural operators in Whatcom County are, in one way or another,
illegal. It's not just the agricultural community that is illegal. The original
Coordinated Water System Plan showed at least 40 public systems that don't have
water rights that should. The City of Lynden discovered that they were in trouble
based on the quantity of water they were pumping. They currently have a
moratorium on new building permits because of that.
The point of all this is that water rights should function as a property right.
The DOE is not in a position to determine what is a valid water right. A court case
said the only way it can be determined as ultimately valid is through adjudication
through Superior Court. That's one of the hang -ups.
McShane stated Washington has chosen not to set up water adjudication
courts. He asked if anyone has looked at other areas that do that. Anderson
stated several other states are in the midst of changes. Currently, a draft report
makes an initial recommendation from a group to streamline the adjudication
process. The only currently active adjudication going on is in Yakima, which started
in 1977. They are still four or five years away from completing it.
McShane stated that is adjudication through a regular court.
Nelson stated the laws are so bad that it wouldn't do them any good to have
a water right adjudication system right now.
Anderson stated there is substantial misinformation about what is possible
and where the statute currently is. The system is broken right now. Someone
should be able to put in a change application and have it acted on in 120 days. It
ought to be the equivalent of a land use change. There are no time limits in the
statute, so DOE sits on the applications.
Water Resources Work Session, 2/18/2003, 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.
Brenner stated there is no amount of reasons to justify why the DOE hasn't
approved one water right. Something else is going on. The State has never put
forth a good faith effort to resolve the problems.
Crawford asked if the State legislators know what is happening. Anderson
stated DOE was created in 1971, when the culture took a turn toward
environmental activism. Prior to that, an office in the State Department of Natural
Resources (DNR) handled water rights. The DOE started off in the 1970's with
mandates resulting from the culture shift. The State of Washington has some of
the more environmentally conscious water statutes. One of the DOE tasks was to
set instream flows. They discovered that was difficult. They've done a total of 16
basins in the State. They did the Nooksack in 1985. At the same time, the big
utilities got together and formed the Washington Water Utility Council, went to
Olympia, and stomped on DOE. In 1986, legislature banned DOE from setting
instream flows for 18 months. Big utilities were terrified DOE would mess up their
systems. The political efforts sparked a series of efforts to reform the law. Two
years ago, the legislature passed the first statute that is the beginning of changes
to the water law.
Brenner asked where "use it or lose it" came from. Anderson stated it has
always been a part of water law. In the Western U.S., there is not enough water,
so original users were hoarding water and not using it. The original concept
requires that the water be put to beneficial use.
Caskey- Schreiber stated members of the agriculture community are upset
because of allowing gravel mining on lands with good water rights is a waste. She
asked if DOE recognizes that those rights should be easily transferred out of those
areas. Anderson stated some people at DOE might recognize that, but DOE
collectively hasn't because the system doesn't function. DOE has opened the door
to solve the problem by passing some rules that allow someone to pay the true cost
to get their water rights processed right away.
Nelda Sigurdson, citizen, stated this week she received a document from the
State Department of Health. At the State level, people are working on these same
things. She asked how they dovetail DOE with DOH.
(Clerk's Note: End of tape one, side A.)
Anderson stated he hasn't seen the document from the Department of
Health.
McShane stated it sounds like a water quality issue.
Anderson stated the State invoked a process for some changes. He wrote
part of that change policy for a conference. One problem of the system is that they
need to get the paperwork current, especially if they are going to have water
markets or water banking. They need a system to function and to manage the
Water Resources Work Session, 2/18/2003, 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.
paperwork. It needs to be partially managed on the local level. The State has an
abysmal record of managing the paperwork. They need a local record. A
significant piece of the proposal was having the County, through the Assessor's
records, include the status of the water for each parcel. It would force the system
into some level of being current. That would go a long way toward facilitating
changes, transfers, buying, and selling. If they require a registration of the water
source as part of the property tax records, all the numbered documents could be
recorded. They could create an electronic database for the State to track what is or
is not being used.
Nelson asked if they can analyze the amount of water in the ground.
Anderson stated there is a quantification of groundwater that exists, although they
haven't done enough data collection on all the aquifers in Whatcom County. They
take information from wells to measure the volume of water and how the water
moves. Many of the aquifers that are tapped by homeowners are not quantified, or
are small surface depressions. It would take a lot of work and money to quantify
them all. The groundwater recharges annually in Whatcom County. The
consumption is not so great that they deplete the water. That's not true in other
places.
Crawford asked if the Planning Unit looked at this, what they need from the
County Council, the status of the Senate bill, and the Council's role. Anderson
stated the watershed planning process pushed it locally as a potential pilot project
last winter. In terms of doing a legislative push, it was torpedoed last year.
Roll stated that during the previous meeting, the Council provided direction
that it did not want to see this as a program area in the draft plan outline. The
Council requested that the work be stopped, which was done. The Council wanted
to understand and have more information related to policy. That is why they are
here today.
Anderson stated the original intent behind the policy included creating a
mechanism that provides more local support for the State in terms of processing
water rights and moving forward. From his perspective, this is a big issue because
large companies have chosen not to locate in Whatcom County because of the lack
of available water. It is an economic development issue.
Caskey- Schreiber stated British Petroleum (BP) changed its application to
reuse wastewater from Intalco Alcoa to cool their towers. Intalco is petitioning to
not pay property taxes because they say they won't be in business much longer.
She asked where BP would get its water if Intalco goes out of business. Anderson
stated he told those companies about the political problems with taking water from
the river. The alternative is reuse of water from Cherry Point. The co -gen facility
will install a recapture system for Alcoa. If Alcoa goes away, their current water
use would go away, and the water would go directly to the co -gen plant. It is not a
transfer of water right, but a transfer of the contract right. It is the PUD's water
right. The transfer happens with the proposal. The co -gen plant will purchase the
Water Resources Work Session, 2/18/2003, 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.
contract from Alcoa. Either way there will be no increased withdrawal from the
river.
Caskey- Schreiber asked what happens if someone wants to restart the
Intalco plant. Anderson stated Alcoa has a contract for ten million gallons per day
(mgd), and it is giving up four mgd. If they sell to a different company, there
would be six mgd available.
Nelson stated the proposal has significant impacts on local water planning.
There is an inability for local communities to move forward. It is another step in
the process that has to be worked out. Anderson stated he agreed. Right now,
they can't move forward. They have to get there somehow.
One piece of the proposal, the registration, is to clean up the paperwork.
The other part of the concept of the water contract is to help Whatcom County
agriculture. One way to solve the illegal rights is to regulate everyone, but that
would shut down the agricultural industry. There is significant interest to enhance
fish production and fish issues in Whatcom County. The purpose of contracts is
simple. A farmer or landowner with a need for water and who has a source for
water, but who also has questionable paperwork, could sign an agreement with the
State to use the water for a limited amount of time if they are willing to do a list of
things for watershed restoration. The program is voluntary. It is motivation for
people to have some security of having water. It is temporary, but can provide
confidence of having a source of water. That's the contract portion of the proposal.
Many utility people in the State think it's a great idea, but are wary of it on a global
scale. Some legislators like it and some don't.
There is a push during this legislative session to change the water law,
primarily having to do with municipal rights. There are going to be changes this
year. The Senate is in the process of passing legislation to reform the water law
regarding municipal purposes. Kelli Linville is in the process of putting out her own
language. He suspects that language will get massaged in Ms. Linville's committee
and will end up with a bill after negotiation. It is primarily targeted at municipal
issues. It doesn't do Whatcom County agriculture any good. There is support of
the Governor's team to create a pilot project that allows greater flexibility and a
mechanism so water right holders in pilot basins can have greater flexibility. He
hoped that the Governor would have support from county and city councils.
Brenner stated one of the concerns is that this will create a nightmare for
people who have to be in charge of this. They are creating a huge bureaucracy.
There is no guarantee that it will solve the problem. They are creating a way to get
more money. From the State, she would like to see good faith efforts to create
some trust that the problem will get resolved. Get rid of the "use it or lose it" law.
Anderson stated there are no guarantees.
Crawford stated he disagreed. This is an exciting proposal. A process to
solve anything that has been stuck in a quagmire for 15 to 20 years is exciting. He
Water Resources Work Session, 2/18/2003, 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.
asked for a graphical flow chart of how this would work. Legislators want to hear
that there is broad community support. He asked if the Planning Unit looked at it
and gave consensus. It would be nice if other groups have looked at this and
support it. He asked if they can show that all interests involved with water approve
this. He asked if they can move forward as a community to get the pilot project
going or allow the broader legislation to happen. Anderson stated the Planning Unit
looked at this. The County Council said not to talk about it any more, and it was
taken off the work plan. Everyone else thought it had merit.
Caskey- Schreiber stated there is a pending state law change. They need to
figure out what that will be before the County Council weighs in. A concern is that
the tribes are against this proposal. She asked how this would not end up in court.
Anderson stated tribes were opposed last year for a specific reason, not
philosophically. The document he created was the one the Governor's team used in
crafting its proposed legislation. A lot of the ideas in the document are in the
Governor's draft legislation.
McShane asked if the bill is connected to Anderson's proposal. Anderson
stated it is. The Senate changed the Governor's proposal, but the ideas are the
same.
McShane asked what they would really support. They don't know yet. He
asked for updates on the different forms of these bills. Read the bills, not just Tom
Anderson's perspective. His impression is that the desire is for Whatcom County to
be a pilot area. The County Council has to decide whether that is good for
Whatcom County. Anderson stated they have to see what the legislation actually is
before Whatcom County decides to be the pilot area. The legislation is targeted for
Whatcom County and Walla Walla County.
Nelson asked for updates on this material from County staff. Allow time for
discussion of the implications of being a pilot area and the ramifications to the
entire state. Anderson stated he should have something for next week, when he
gets the language from Kelli Linville. He will make sure the language gets sent to
the Council members.
Roll stated he is having difficulty understanding his direction for the Planning
Unit meeting. He asked if Council wants to continue to terminate that work.
McShane stated the Council had difficulty in the beginning understanding
water law. He is pessimistic about the Council's ability to fully understand what this
means, and the connection between this legislation and why Parametrix should plan
for it. He doesn't get that connection, and he needs to understand that better. He
asked why legislation has to do with Parametrix planning. Roll stated Parametrix
identified a number of program areas, such as a natural resource program area and
a water policy program area. These areas are proposed in the current draft outline.
Legislation may or may not be the framework for how those things are addressed
as they move forward. The plan begins to describe a process for developing good
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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.
legislation. Now, Parametrix is working on other program areas and has ceased
working on this program area. The County Council's action only stops the
contractor from working on the placeholder in the outline. The legislation will
continue regardless of what work Parametrix does. Parametrix's challenge is
capturing collectively what the WRIA wants in the process for developing water
policy.
Crawford asked the fiscal implications of Parametrix doing or not doing this.
Roll stated there would be other program areas that will be pushed forward in place
of this item. At some later date, they will need to inject resources to push this
forward.
Nelson stated he preferred to give Parametrix specific guidance rather than
assigning an esoteric project. Review the final legislation, provide comments, and
possibly incorporate Mr. Anderson's proposal. That will be guidance for Parametrix
to incorporate it into the overall WRIA plan.
Brenner stated she gets the feeling that the Planning Unit wants to move this
forward and the Council is holding it up, but she doesn't get that feeling from the
few Planning Unit members she's talked to. Roll stated the Planning Unit wanted
more work to be done in the program areas and to continue to flush out the
program areas defined in the packet last month. It doesn't mean they are voting
on what to include in the plan. They are voting on what to work on.
McShane asked for a list of Planning Unit members. Roll stated it includes 12
water interest caucuses and six governmental caucuses, including the diking and
drainage caucus, the water interest caucus, and the non - municipal water
association caucus.
Anderson stated Nelson is right on. What they do depends on the legislation.
Considering the timing, it makes good sense to pay close attention to legislation so
they know what will come out of the process. He then hopes to get workable pilot
projects. They will have serious work to do to move forward before the next
legislative session. During the next legislative session, Whatcom County will still
have the advantage of a having Kelli Linville as chair of the legislative committee.
Brenner asked if the County would have any influence in whether or not it is
the pilot area. Anderson stated the agriculture community, him, and the City of
Bellingham are all actively pursuing this question. There are benefits to doing it.
They'll see the fine print when the legislation gets written. The community in
Whatcom County gets to make a decision on whether it wants to be the pilot area.
He doesn't know who locally will make the final decision.
Caskey- Schreiber stated she is still uncomfortable having Parametrix
involved. The Planning Unit can get involved. She asked why they need to commit
to going down this path when they have so many other things to do. She has not
Water Resources Work Session, 2/18/2003, 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.
heard anything compelling to reverse her stance. She is concerned about how the
tribes figure in to this.
Robin Dexter, Environmental Caucus, stated he wants the Council to act as a
caucus, and instruct County staff to keep the development of this idea in the
Planning Unit as much as possible. The legislation goes on whether they like it or
not. The chance to have the biggest impact on the legislation is if the WRIA and
Planning Unit speak as one voice.
(Clerk's Note: End of tape one, side B.)
Dexter continued to suggest that the Council instruct County staff to work
with the caucuses. Parametrix doesn't have to do it. He objects to his caucus and
other caucuses giving input separately. Speak with one voice in Olympia. That will
resonate with the legislature. That is what watershed planning was supposed to be
about.
(Clerk's Note: The Council took a ten - minute break at 11 :40 a.m.)
1. STORMWATER
Stormwater Phase II Permit Application
Bruce Roll, Water Resources Division Manager, stated the phase II permit
applies to the City of Bellingham and several surrounding areas. The County and
the City of Bellingham both have to submit an application. The areas are based on
contiguous census units with a population of 10,000 or more. The County will have
to work with the federal government on the issue with the Ferndale and whether it
truly falls within the area of contiguous census units. He thinks that it probably
doesn't. He posed this question through the State Department of Ecology (DOE),
which responded that they need to deal with the federal government. That will be
his next step.
There are six key mandatory elements in the application process. Other
elements are discretionary.
Brenner asked what an "ms4" is. Roll stated it is the definition of those
communities that fall within a separate storm system. It is a municipal system.
Erika Stroebel, Resources Planner, stated the permit is for the sewer system.
A private entity that is discharging into the municipal stormwater system can affect
what they have to deal with.
Brenner asked if it would be for water association. Roll stated he doesn't
know of any discharge permits for water associations.
Water Resources Work Session, 2/18/2003, Page 10
DISCLAIMER: This document contains the Whatcom County Council or Committee
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1 Roll stated haven't they historically created a stormwater map inventory of
2 these areas. Initial work will be mapping the areas for a stormwater treatment
3 system inventory. He read the six key elements into the record. Whatcom County
4 already meets or exceeds the minimum regulations of the six key elements. For
5 the public outreach element, they are already doing an outstanding job. The
6 programs are not tailored to the six elements, but adhere to many of the elements
7 already. They must have compliance with the public meeting notice requirement
8 for the public involvement element. They must understand potential illicit
9 discharges. Identify, develop, implement, and educate through some type of
10 adaptive management process. He discussed the components of the six elements
11 and briefly addressed what existing programs apply to each of the elements.
12 Specific types of record keeping and reporting will be required. DOE has not yet
13 developed its permit. They do not know what the permit will have. Nor has DOE
14 developed an application. It's difficult to predict what is or isn't in the permit that
15 could be in the application. The application he is writing is general, and is written
16 to take ownership of the priority pollutant areas. It will be a couple of years before
17 the permit is developed.
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19 Brenner asked what is in place for post construction to make sure detention
20 ponds and treatments are taken care of. She asked if the County is dealing with
21 development. Roll stated it is tied to an expectation that a homeowner association
22 will maintain it. There is no maintenance enforcement by the County.
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24 Roger McCarthy, Engineer - Development, stated they have a record of the
25 systems that are installed. They rely on a homeowner's association or business
26 entity to maintain them.
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28 Roll stated some of the questions on the application are not completely filled
29 in because they don't have an inventory to be able to describe all the pieces. They
30 have to provide maps for some of the outfalls and discharges. They are going with
31 estimates. One of the first exercises is inventory what they have and understand
32 what they have and the relationship of those areas to potential pollutants.
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34 Brenner asked if they could work with the state and federal government
35 materials without having to redo them. Stroebel stated they could. There are a lot
36 of educational materials from the State and federal government that have already
37 been developed dealing with stormwater management.
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39 McShane stated there is going to be a substantial amount of guidelines in
40 how these things will be put together. They don't have a good guideline from the
41 Department of Ecology on record keeping. The rules are from the Environmental
42 Protection Agency, but it goes through the Department of Ecology. A lot of it will
43 be standard, but there will be areas where locally they will need to do something
44 unique. The fact that the Department of Ecology isn't telling them about the record
45 keeping is a little scare because that's where the big costs could be.
46
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Roll stated the application includes physical descriptions. They will do an
inventory of the areas over the next year or two. This is looking at what they need
to do for this set of regulations. This doesn't provide guidance in a drainage area.
Council has provided guidance to look at the entire watershed in terms of how it is
managed. They also need to consider relationships to the phase II areas, their
drainages, and the relationship between the cities and the County. He encouraged
Council to consider doing broader inventories, tied more to the drainages.
Nelson asked about the relationship to closed communities, such as Sudden
Valley, which supposedly takes care of its own drainage system. He asked if the
County would take it over. Roll stated the County would not. Think of Sudden
Valley as a private homeowner. The County would require the same thing as
someone doing a single - family structure. The County is only required to deal with
County roads. Think of Sudden Valley as a very large private parcel.
Nelson asked about the expansion of geographic areas versus drainages.
Roll stated Squalicum is an example. Pieces of it touch areas that are required to
be in the phase II areas. The inventory may want to include collectively the entire
drainage before developing a specific plan.
Nelson asked who agrees on the entire drainage. Roll stated an approved
map already identifies all those drainages.
As required, the receiving waters and parameters have to be identified
through the 303(d) piece of the Clean Water Act. Ultimately, if following current
regulatory hoops, they would potentially go through a total maximum daily load
(TMDL) process to identify a load capacity.
Caskey- Schreiber asked if there is special consideration for a water reservoir
as a receiving area. Roll stated there is not. However, the Council might want an
additional level of protection.
Brenner asked if some areas, such as Ten Mile Creek, that are not listed as
impaired are actually impaired. Roll stated the DOE is always updating the list.
County staff went through existing DOE maps that have waters in those phase II
areas that can be receiving waters. According to the current list, Ten Mile Creek
was not included on the 303(d) list.
Stroebel stated Austin Creek is recommended for listing, but has not been.
Tennent Lake has not been listed.
Roll stated the TMDL process is controversial in how things are listed. It is
an entire other set of regulations. They are trying to show the relationship between
stormwater and impaired water bodies. The County doesn't have to use the list as
their sole guidance.
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Roll stated the theme is to go into the areas and understand what they have
in terms of stormwater inventory, target audiences, pollutants, and public
education. The County needs to gather a lot of information. They've done a lot of
work in these areas. Many existing programs deal with these issues. The question
is where to apply the programs.
Nelson asked if they are doing an adequate amount of public education to
meet the standards and, if not, what kind of increase will they need to do and at
what cost. Roll stated they are doing a lot in the case of Lake Whatcom. The cost
will be dictated by the population in the target areas and how much they want to
expand the effort beyond those target areas.
Nelson asked for more information in the future on the specifics of those
costs.
Roll stated they need to move cautiously on extending beyond the federal
requirements. They need to work on stormwater outside of the boundaries, such as
in Lake Whatcom and Lake Samish.
Caskey- Schreiber asked if the State would follow up on the County's efforts
and programs.
McShane stated that will be part of the record keeping procedures.
Roll stated there is no requirement for monitoring, but they will have to
monitor if they are going to do these types of things.
Crawford asked if the County is getting money. Roll stated not at this time.
This is a federal mandate. An example of similar regulations is that the City of
Bellingham has to adhere to the Safe Drinking Water Act.
(Clerk's Note: Councilmember Crawford left the meeting at 12:25 p.m.)
Brenner asked if they are going to follow the goals listed in the application.
Roll stated those are examples of goals. He suggested they use the goals that best
meet their needs locally. The County is going to have to develop mechanisms to
detect and eliminate discharges in these areas.
Caskey- Schreiber stated they all recognize the Sudden Valley sewer line is a
problem. One of the goals is to detect and eliminate the most illicit source. She
asked if the County would demand that Sudden Valley not use the sewer line. Roll
stated Sudden Valley has done a lot to deal with the discharges. This would be
treated as any other private purveyor. The County would look at what stormwater
or discharges are coming off of the land that the County would have to regulate.
The question is what Sudden Valley needs to do now in addition to what they've
already done.
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Caskey- Schreiber stated everyone recognizes that water is coming into that
system, which is why they are having problems with leaking and overflows. This is
almost like the responsibility is shifted to the County. Roll stated the wastewater
collection system is under another set of discharge regulations, so it isn't simplistic.
He hasn't thought yet about applying this illicit discharge regulation to Sudden
Valley.
It's important to take all the County does now and ask themselves if there
are gaps to be filled. That exercise needs to go forward in the first year or two.
Understand the existing ordinances.
Nelson asked how they detect and eliminate illicit discharges through the
public. Roll stated a voluntary monitoring program in Drayton Harbor is a good
example of how that is done. Create a partnership so citizens work directly to fix
problems.
Roll stated the Planning Department's work on construction site runoff in the
Lake Whatcom area has been phenomenal.
Caskey- Schreiber asked if the one -acre minimum for construction site runoff
control is because they are generalizing across receiving water bodies. She asked if
this is an instance where they have to look at something steeper than one acre in
the Lake Whatcom reservoir area.
(Clerk's Note: End of tape two, side B.)
Kurt Baumgarten, Planning Technician, stated they are reviewing an area of
5,000 square feet right now. They reduced that minimum threshold for the Lake
Whatcom and Lake Samish areas already.
Rich Emerson, Building Industry Association, stated the stormwater overlay
is being analyzed. He asked if that ordinance must pass muster in terms of this
requirement.
McShane stated the ordinance is independent of this requirement, but will be
incorporated into the requirement.
Emerson asked if the ordinance being discussed could be a good model for
other locations in the county, with some variations.
McShane agreed that is what he's been hearing. In some areas, they may
not want to go that far. It may not be necessary.
Caskey- Schreiber stated this provides support for what they are doing with
the stormwater management overlay. They are ahead of the game in this instance.
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Nelson asked how they have identified the sensitive organisms that need to
be enhanced, as stated in one of the goals. Roll stated they have some estimates.
That is a new field that is emerging. The issue is about knowing the type of aquatic
life and how they are repairing and enhancing it. That is tied to both fisheries and
other toxics that can impact habitat issues. Discharges often include bio- indicators
that demonstrate whether or not the water is toxic. That is done in place of
screening for pollutants. Do more of a biological assessment.
Nelson asked if they are going to be ready for this in four years. Roll stated
these are suggested goals.
Caskey- Schreiber asked if they are already doing that in Drayton Harbor with
the shellfish. Roll stated they are in terms of shellfish consumption. He is referring
to the existence of aquatic life and how pollutants may interfere with them.
Roll stated how the DOE stormwater manual will be used would be
considered in the development of the DOE permit. As they receive this, continue to
look for the BMP's that are most appropriate for the specific site. The DOE
stormwater manual wasn't designed to remove fecal coliform through the use of
BMP's. In each area, deal with the BMP that is most important.
Brenner asked if they would consider development standards equivalent to
the DOE stormwater manual. Roll stated it would have to be submitted to DOE for
approval.
Brenner stated most of this looks like stuff the County is doing anyway. Roll
stated they are doing some of it but not all. Those areas such as illicit discharge
will require resources to deal with. Over the first year or two as they do the
inventories, they will be able to describe the size of the areas. Not included in the
application are the special areas and the overlays. That also needs to be looked at.
Nelson asked if they could incorporate property tax rebates as an incentive.
The person who takes care of his property has raised property value. There is a
disincentive to taking care of the property. Include an incentive for property
owners. Roll stated he agreed. Public information is an arm of that issue. They
need good incentives.
Roll stated there is a request for a wording change to the selection criteria.
Scarlet Tang, Program Specialist, stated staff brought forward the Council's
suggested changes to the Planning Unit. The Planning Unit was concerned about
criteria for selecting pilot projects, "Preference shall be given to pilot projects that
meet substantive goals, such as...." The Planning Unit was concerned about adding
the phrase "such as" because it would open up the criterion to last minute changes.
The criterion didn't seem to meet the Council's goal of weighting the criteria. She
suggested that the Council consider reverting to original statement and add a new
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sentence, "Preference shall be given to pilot projects that meet any of the following
goals. Criteria may be weighted in the future."
Brenner stated the statement should say the weighting shall be done.
Nelson asked why the Planning Unit didn't want to be tied to that language.
Tang stated the Planning Unit was uncomfortable saying "such as" because they felt
additional goals could be added at the last minutes.
Brenner stated the Council's intent wasn't to add any criteria. The intent was
to list the ones that were already there. If they include criteria, they need to let
people know that each criterion will not have the same value as the others.
McShane moved to amend language to revert to the original sentence, and
then add language, "Preference shall be given to pilot projects that meet any of the
following goals. Specific weighting of the criteria will be evaluated in the future."
The Planning Unit will recognize that specific things need evaluating.
Nelson stated they should look at the criteria and see what kinds of projects
they get. Be more specific on the criteria as they move along in the process.
Brenner stated she would support the motion, but is concerned about some
of the criteria being too inclusive. Roll stated he agreed that some are too general.
Staff needs to run through the process with some pilot projects to understand how
to weight them. Before they add criteria and limits, understand how it will hinder
more projects from going forward.
Motion carried 5 -0 with Crawford and Roy absent.
ADJOURN
The meeting adjourned at 12:55 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on March 11 , 2003.
ATTEST:
Dana Brown- Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dan McShane, Council Chair
Water Resources Work Session, 2/18/2003, Page 16
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