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HomeMy WebLinkAboutNatural Resources April 17 20011 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 WHATCOM COUNTY COUNCIL Natural Resources Committee April 17, 2001 The meeting was called to order at 9:30 a.m. by Committee Chair Dan McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington. Also Present: L. Ward Nelson Connie Hoag Absent: None COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL 1. ORDINANCE AMENDING WHATCOM COUNTY CODE, TITLE 20, REGARDING REGULATIONS RELATING TO NON - CONFORMING SURFACE MINES AND SURFACE MINING IN THE RURAL, AGRICULTURAL, RURAL FORESTRY AND COMMERCIAL FORESTRY ZONES (AB2000 -301) Matt Aamot, Senior Planner, stated that this proposal was initiated in 1999 by the Land Use Division. They propose modifying the mining regulations outside of the mineral resource lands (MRL's). He would compare and contrast the Planning Department version versus the Planning Commission version, talk about their rationale, and touch briefly on the state Department of Natural Resources (DNR) gravel resources study. In the Rural and Rural Forestry zones, the Planning Department proposal would have limited mining to three acres per parcel outside of an MRL. The Planning Commission modified that proposal to limit mining to three acres at a time, which is the way it is now. In the Agricultural zone, the Planning Department limited mining to 15 percent of the parcel. The Planning Commission recommended the three acres at a time condition. The Planning Commission also added that one could mine terraces, which is a significant change from the existing code. Staff is concerned with Comprehensive Plan policy 8L -1, which he read into the record. The Planning Department also recommended that side slopes be reclaimed to not exceed eight percent. The existing code is 33 percent. The Natural Resource Conservation Service (NRCS) said that is not farmable. The Planning Commission agreed in the Agricultural zone. Regarding non - conforming mines, the existing code says that one needs a conditional use permit (CUP) to expand a non - conforming use. It works well for other uses. Mining, by its nature, expands. The recommendation was to define expansion of a non - conforming use requiring a CUP to mean: 1. If expanded laterally outside of the footprint, 2. If excavating in a five -year wellhead protection zone, 3. If excavating within ten feet of a water table in a ten -year zone, or 4. If mining within five feet of critical aquifer recharge area. The five- and ten -year wellhead protection zone is similar to the Comprehensive Plan rules. The Planning Natural Resources Committee, 4/17/2001, Page 1 1 Commission endorsed those recommendations. The Planning Department also 2 recommended deleting restriction limit extraction rates to the average rate over the 3 previous five years. The Land Use Division said it is difficult to administer because 4 miners don't keep good records of how much they extract. The Planning 5 Commission did not agree with the recommendation, and voted to keep that 6 restriction. He submitted an updated staff report (on file). The Planning 7 Commission did not recommend a change to the five -year restriction, so it wasn't 8 included in the proposal. 9 10 There were four issues the Planning Department looked at: 1. 11 Comprehensive Plan zoning implementation. Mineral resource land (MRL) 12 designations are the main areas where mining is anticipated. This proposal does 13 not address MRL's, but mining outside of MRL's. It is not the intent of Rural and 14 Agricultural zones to facilitate mining. The purpose and definitions of these areas 15 don't include mining. 2. Impact to neighbors. People moving in next to an MRL get 16 that disclosure. People moving to rural areas don't get that disclosure and expect 17 that same level of impact. One issue is addressing land use conflicts. 3. 18 Agricultural soils. There is a difference of opinion on the ability to rehabilitate 19 agricultural soils. The Comprehensive Plan alludes to rehabilitation difficulty. With 20 all of this, there is a certain risk. Minimize the risk. They recommend 15 percent. 21 4. Groundwater risks. State, federal, and local authorities identified mining as a 22 potential pollutant to water, so they included the added protection to wellhead 23 protection areas. 24 25 Staff made its recommendations before the state Department of Natural 26 Resources (DNR) came out with its study of gravel resources in the Bellingham 27 quadrangle. That report has been at the Surface Mining Advisory Committee 28 (SMAC). One SMAC member, Dr. Babcock, evaluated the report. His evaluation 29 and that of the SMAC is that there is a 10- to 15 -year supply of aggregate in the 30 Bellingham quadrant. That is going to have to be addressed one way or another in 31 Whatcom County. In the context of this amendment, they could do it one of two 32 ways. They could say that rural and agricultural areas should be opened up, or do 33 a more comprehensive view of MRL lands, as called for in the Comprehensive Plan. 34 35 Nelson stated they are dealing with Rural, Agriculture, Rural Forestry, and 36 Commercial Forestry zones. When they talk about rural living, they are only talking 37 about those zones. Aamot stated rural zones include R2A, R5A, and R10A zones. 38 39 Nelson questioned where to find most of those resources for which there is a 40 shortage, according to the study. Aamot stated he had a map that was in the DNR 41 report. He would forward that report to the Council, along with the SMAC letter, 42 which recommends more study to the east county. They have areas mapped of 43 significant sources in the Bellingham quadrangle. Some gravel resource areas do 44 overlap with agricultural areas. The Columbia Valley is a significant area. 45 46 Nelson stated transportation would be an issue. Many areas that have 47 resources available are the areas they are talking about today. If they start limiting 48 themselves from the resources, the County will back itself into a corner. Aamot Natural Resources Committee, 4/17/2001, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 stated this ordinance, as proposed, is not limiting. They could determine areas with aggregate supplies and no prime soils. Nelson stated they have information that they still need to look at and evaluate before putting these regulations in place. Aamot stated this would not limit the Council from creating MRL's in any place in the county. The gravel issue may pressure rural and agricultural areas to do smaller scale mining. It could result in more land use conflicts in rural areas and issues with agricultural soils. It is a better approach to look at it on a comprehensive basis. McShane asked if it would make much difference as far as enforcement or oversight. Aamot stated the Land Use Division had that same concern. It is difficult to prove one way or another what the five -year rate was. Dawson stated the soil types are not concentrated in specific areas, so it would be difficult to keep mining to certain areas. Aamot stated they could overlay the prime soils map and aggregate areas map. Designate mining areas in areas where there are no prime soils. Now, anyone can apply anywhere for smaller scale operations. McShane stated there are different situations in different parts of the county regarding transportation. Aamot stated there is also a pollution issue. Hoag referenced the DNR study and SMAC's review of it. When the Comprehensive Plan was put together, they attempted to set aside 50 years' worth of sand and gravel. The final MRL designations ended up designating more than what was initially needed for 50 years. Now, the DNR says the supply is only for ten to 15 years. She questioned where the other supply went. Aamot stated some river gravel was designated. McShane stated that when MRL's were designated, the quality wasn't evaluated as thoroughly as it should have been. The DNR looked carefully at some of these pits and realized that the useful volume was lower than anticipated. Nelson stated many times they discussed the amount and quantities of aggregate, and the numbers reported previously weren't always accurate. What they assumed as reported and what remained were actually not accurate. Hoag stated she'd asked that the DNR study be brought into committee for discussion. The Council should be informed. There is language that is not in either the staff or Planning Commission version. The language from section .159(8) of the Rural zone, on Council packet page five, isn't in the Agricultural zone. The Agricultural zone includes Sumas' water wells. She questioned why they don't have the same type of protection for Agriculture zones. Aamot stated that language applies in the MRL. In the Agricultural zone, one can't go within five feet of the water table. That language sounds like a good idea. Natural Resources Committee, 4/17/2001, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Hoag questioned the Planning Commission version of section .165(4) on Council packet page six. The mining would be allowed to go deeper than the minimum land elevation. She asked why. Aamot stated he didn't recall why. Nelson asked if it was because topsoil removal could be added back in to bring the level back up to the surrounding area, which would make sense. Language says that it must be restored to previous elevations. Hoag read the bottom of section 20.83.020 on Council packet page eight. Lummi Island has an MRL overlay, but they also have a non - conforming pit to start with that was supposed to be limited to a certain amount. She asked how this language would affect what is going on at Lummi Island. Aamot stated they had a 20 -acre MRL designation and nonconforming right extending out of the 20- acres. If mining in an MRL, one can do that. If mining expands outside the footprint on the portion of the parcel outside of MRL, then these provisions would apply. Hoag questioned the meaning of section 20.83.020(4). Aamot stated that if they enact these provisions, there might be a situation that would require someone to stop operating until they've obtained a permit. The staff is trying to avoid that. If one is applying for a permit, he or she can keep on mining while the permit is being processed. Staff didn't want to stop someone's ability to mine. Hoag asked if this is for people who would now be required to have a CUP, which wasn't required before. Aamot stated it is. Hoag stated the language seems like anyone who must have CUP, but doesn't, won't be enforced against. Aamot suggested an amendment to section 20.83.050(4)(x), "The owner or operator demonstrates that Wee 20.8320 this ordinance would require...." Hoag stated subsection (c) seems like someone who doesn't meet the criteria for a permit could mine while applying for the mine. Aamot stated someone wouldn't be allowed to sit on an application for five or ten years. Once a decision is made, it could be appealed. But once a final decision is made, the owner is no longer seeking a permit. Hoag asked if the applicant could turn around and apply again. Aamot stated the intention was that they couldn't apply, and then sit on the application for many years. Nelson asked if Light Impact Industrial (LII) zones require a conditional use if mining is prohibited, or if mining is addressed. Lesa Starkenburg - Kroontje, 115 Front Street, stated one could do some soil mixing or crushing of recycled asphalt, but there is not a provision for mining. Nelson asked if that has become an issue. He asked why they would not allow mining in those industrial areas. Starkenburg - Kroontje stated it is not Natural Resources Committee, 4/17/2001, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 addressed. If it is not addressed, it is prohibited. The only industrial zones with deposits are within the cities. Nelson stated they may want to look at different areas in the western part of the county that may have sources, or in areas in the Foothills for economic development. Have the capability to look at future MRL's in conjunction with the zoning that best suits those areas. McShane asked if it would need to be a Comprehensive Plan amendment to allow mining in industrial areas. Sylvia Goodwin, Planning Division Manager, stated they may be able to do a zoning text amendment. Hoag stated it should be a conditional use, not an allowable use. McShane asked if the committee wants to look at adding the industrial area to areas they are looking at today. He would propose to the full Council that they formulate a resolution asking to investigate that item. Nelson stated it could only be a motion. McShane moved to recommend to the Council exploring the possibility of adding the industrial zones to allow mining as a conditional use. Goodwin stated they might want to run that through the SMAC, because there is a lot of LII in the urban fringe area. They might want to talk to the City of Bellingham about it. McShane amended his motion to ask the SMAC to look at this. Aamot asked if they want to have a size limitation. Nelson stated the SMAC could hash out the language. Goodwin stated it would have to go to the Planning Commission if there was a recommendation to change the code. Hoag stated that mining is a heavy impact. It is not appropriate to put it in a LII zone. LII zones are close to residential areas. She suggested that the SMAC and Planning Commission only look at heavy industrial areas. Nelson stated he did not want to rule out LII areas. Look at it in a comprehensive approach. No one has bothered to do this before. (Clerk's Note: End of tape one, side A.) Nelson continued to state that they should rule out commercial zones. Natural Resources Committee, 4/17/2001, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Hoag stated that if they don't have developed criteria, then it goes to the conditional use process. If the Hearing Examiner decides it is okay, it can be appealed to the Council. The Council only can decide whether or not there is an error of law. The criteria should be protective. If they are going to promote it in the LII areas, they should develop criteria. Aamot stated the SMAC issue was about criteria. McShane amended his motion to have the SMAC look at establishing conditional use criteria for mining in industrial zones. Motion carried 2 -1 with Hoag opposed. Starkenburg - Kroontje stated she spoke on behalf of the Whatcom County Sand and Gravel Association, which is an association comprised of larger surface mining and extraction companies in the County. Most are working in MRL areas in the county. The association has indicated since its inception that it is not its intent to create an industry that only involves big players. There are smaller companies that are not members of the association. The association submitted a letter to the Planning Commission in June. Regarding the Rural zone, the proposal of staff was to limit extraction to three acres per parcel, and no more. When looking at supply of materials for the future, these three -acre sites do provide material, but there are limitations to how they can be used. The Sand and Gravel Association didn't take a stand on the staff's proposal, but only said that the proposal may limit the amount of material available for extraction. The County will have to designate more material elsewhere. In the Rural zone, regardless of the site size, there is no processing available of those materials. Crushing is only allowed in the MRL. If an owner is going to process the material, then it is being trucked twice. They have not seen a proliferation of these rural permits over the last ten years. Before the interim MRL was established, a number of permits were granted for different sizes. Since the MRL's were established in 1992, only one permit was granted that she was aware of. Two are being processed. There has also been recent discussion about reclamation between DNR and the County. This hasn't been a wide problem. Regarding the Agricultural zone, the association points out the current criteria and how it's been working. Right now in the Agricultural zone, in order to get a CUP, one has to have a knoll or ridge, do agricultural enhancement, and meet criteria in the conditional use section in the code. It is fairly expensive. Since that language was adopted for knoll and ridge removal in 1993, there have been two applications for knoll and ridge removals. Neither resulted in a permit, as of two months ago. It has not been widely used. That language was a text amendment suggested by the Conservation District. The 15 percent limit proposed by staff is quite limiting when trying to do something that enhances agriculture. If they are enhancing agriculture, and the Conservation District says they are enhancing agriculture, and the farmer says they are enhancing agriculture, then they should not limit it. Natural Resources Committee, 4/17/2001, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Regarding the nonconforming uses, it is difficult to work with the five -year limitation. It is a burden to review accurate records. Staff's proposal makes sense. The association supports giving people time to get their permits. Between the two versions, the Planning Commission put a lot of work into it, took public testimony, and toured sites in the area. The association is comfortable with what the Planning Commission approved, minus the five -year average provision. Regarding the supply of gravel in the DNR study, the association has been consistent with the supply that is available. DNR confirmed what the association has been saying. They have not lost the supply; it has just never been there. Give the study credibility. Regarding the DOE National Pollution Discharge Elimination System (NPDES) permit, she was not sure why the language was not put in the Agricultural zone regarding the wellhead protection level. It may be that protecting the groundwater through something that is arbitrary may not accomplish the farmer's purpose. The DOE permit is required of all sites, regardless of size, that have any water that sheet flows over the sight. One is not exempt because of size. There are smaller sites that do not have the permit that they should have. DOE has not done a good job making sure the smaller pits get permitted. The association has asked the DOE to get people permitted. The 50 permits that exist often cover more than one gravel site. Hoag stated she was aware of at least three knoll removals in the Agricultural zone. Starkenburg - Kroontje stated there have been only two applications for CUP's for agricultural enhancement through knoll and ridge removal. There has been some activity in the Agricultural zone through fill- and -grade permits for removal of 10,000 cubic yards or less. Mining is a permitted use if materials are kept on -site or are removed to another site leased or owned by the farmer. Hoag asked if the fill- and -grade permits have the criteria that the mining does. Starkenburg - Kroontje stated they are approved by the County. If they are removing over 500 cubic yards, then they need a state Environmental Protection Act (SEPA) checklist. One can have mitigation attached to the site. Typically, the County looks at things like erosion control. She was not aware of anything regarding fill- and -grade that is not site specific. Hoag asked why the Planning Commission did not remove the language regarding the five -year extraction levels. Starkenburg - Kroontje stated that was one of the last things the Planning Commission did in its meeting. The reality is that a number of the sites have very low amounts of material, under 1,000 cubic yards. Hoag asked how much gravel from the county is exported. Starkenburg - Kroontje stated that when the Comprehensive Plan was developed, the amount was less than 10 percent on an annual basis. Today, the exported amount is less than Natural Resources Committee, 4/17/2001, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 that. A new supply opened in Canada for Canadians. Also, the supply available here is not cost - effective for exporting. Hoag asked about exports out of Whatcom County to other counties. Starkenburg - Kroontje stated there is sand that the county doesn't have that has to be brought in. The exported material is from companies who have offices in several counties. Hoag stated there is a disparity between testimonies given during the Comprehensive Plan process. They have to be aware of what the aggregate is and where it is going. She questioned how the numbers in the Comprehensive Plan were derived. Starkenburg- Kroontje stated one tool used was from a registration form that had to be submitted. Planning staff used those forms, and also models of areas. She had information on how staff arrived at those numbers, which she could provide. Roger Ellingson, City of Sumas representative, stated the issue is not going to have a significant impact on the amount of aggregate, in terms of the larger picture, because of the system that exists. The Growth Management Act required planning for 20 -year reserves, not 50 years. There was a conversation in the SMAC with Dr. Babcock. Regarding the Comprehensive Plan estimates of available supplies, Dr. Babcock said that the estimates were overestimated. He quoted from Dr. Babcock's testimony in the SMAC minutes. When the second quad study is done, the Council will ultimately face a change in the aggregate industry in Whatcom County. As a consequence, the full Council is going to have to deal with the policy. They have to look at this being premature. They may want to wait. On the other hand, he agreed that it needs to be tightened. The Council could wait for this information to come in from the study. There are additional criteria in the Comprehensive Plan for designated agricultural areas. One says that after the Comprehensive Construction Aggregate Study is done and approved by the County Council, the County shall draft, adopt, and implement all legislation necessary to allow or disallow mineral resource extraction in all or some prime farmlands, under the listed parameters. Reclaiming a hole in the ground does not make it suitable for agriculture. The equipment used is not suitable for this type of operation. It compacts the soil, and creates root rot. The farmers are becoming strapped. The easiest thing for them to do is to mine their deposit. Regarding the 15 percent provision, it is too big. It leaves the door open to ruining the land. In terms of the agricultural enhancement provision, these farms weren't created in the last 20 or 30 years. They've been around for 100 years or longer. Normally, the farmers eliminate all the knolls and ridges as they go. If they open the door here, it will only further jeopardize the quality of soil in Whatcom County. In terms of his specific recommendations in his June 20 letter, he suggested language to make the intent clear to minimize the disturbed area as much as possible. The criteria for determining whether it is approved should be contained in that section of the ordinance, but should also reference the general conditional use Natural Resources Committee, 4/17/2001, Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 criteria. The 15 percent limitation should be limited to 15 percent or six acres, whichever is less. Regarding the nonconforming use provisions, the five -year averaging may be difficult, but they have to have some kind of similar wording. These are nonconforming pits. The level of activity is very important. (Clerk's Note: End of tape one, side 8.) Ellingson continued to encourage including a sunset clause for section 20.80.020(4). They may also want to include language regarding its intent. Hoag asked about Mr. Bobcock's comments about the County's estimates of gravel. Ellingson stated that Mr. Babcock referred to the County's estimates during the Comprehensive Plan process. The County estimates were a matter of public participation. Even the DNR study was not comprehensive enough. Mr. Babcock was saying that the aggregate is not continuous. He is going to testify that there is not enough gravel in the prime farmland soil to justify jeopardizing the soils. There is a big gravel resource on the north part of Skagit County that will contribute to Whatcom County supplies. The smaller operators are going to become desperate and work with farmers who are desperate to create many small pits. The Planning Commission, when it considered eliminating the five -year averaging, said they agreed with him. He convinced the Planning Commission it was the right thing to leave in. Dawson asked why everyone went with the CUP. She asked why not leave it as an administrative permit. Goodwin stated this isn't for MRL's. These are areas within Agricultural or Rural areas not designated as MRL's. Aamot stated staff could bring forward the DNR study and the SMAC recommendation to the next committee. McShane stated they would not do any amendments today. They have scheduled a presentation for the next meeting, which staff may want to attend, on an unrelated matter. He would prefer to look at letters submitted by the public, and then have a presentation on the DNR report at the second meeting in May. Nelson asked if there are adequate maps in the study. Aamot stated there are. There are also GIS maps. McShane stated his intent is to find out what it is all about, but not "take on" the MRL issue. This is an issue the Council is going to have to tackle soon. Hoag stated she didn't see the language regarding terraces in the staff recommendation. Aamot stated it is in the Planning Commission recommendation. Hoag asked if 'terrace' is defined in the code. McShane stated it is not. Natural Resources Committee, 4/17/2001, Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Hoag asked if most of the farmland would qualify as a terrace. McShane stated a terrace is flat land with a sharp drop -off, and then flat land again. Hoag asked if the chair would be willing to accept motions for vote or consideration. McShane stated he would rather do them all at once. He suggested having the Planning Commission recommendation, staff recommendation, and letters from Mr. Ellingson and Ms. Starkenburg - Kroontje in the next Council packet. He instructed the committee members to write out any suggested amendments before the meeting. Nelson stated he had questions he needed to research before voting on amendments. Hoag asked to make a couple of amendments. Nelson stated he would abstain because he doesn't have enough information. Hoag moved to insert language in section 20.83.020(4), "...operator or owner of an existing nonconforming surface mining operation at the time of the adoption of this ordinance if all of the following...." Aamot stated all of the mining operations would exist at the time of the ordinance. Hoag stated that the way this language is written, someone who begins mining without a CUP in the future won't be enforced against. Aamot stated that someone who mines without a CUP would not be nonconforming. They would be illegal. Nelson stated the language says that, once the ordinance is adopted, the use would no longer be a nonconforming use. Hoag disagreed that the language says that, but agreed with the intent. McShane questioned whether staff grants nonconforming surface mining permits. Aamot stated nonconforming rights exist if someone has been doing something for a long time. McShane questioned whether a new mine would be given a nonconforming permit. Aamot stated it would not. It would be given a regular CUP. Nelson stated it would otherwise be illegal. McShane stated the language works for him as it is. Natural Resources Committee, 4/17/2001, Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Hoag withdrew her motion. Hoag moved to include the language from 20.36.159(8) into the Agricultural zone, added to section 20.40.165(6). That language makes it consistent with the Rural zone, and more consistent with the MRL designations, where they also do not allow mining within the five -year zone of travel. McShane stated that section only deals with farm enhancement, which is different than what would go on in the rural area. Motion failed 1 -1 -1 with Hoag in favor and Nelson abstaining. Aamot stated he would forward the DNR report to the committee. ADJOURN The meeting adjourned at 11:30 a.m. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dan McShane, Committee Chair Natural Resources Committee, 4/17/2001, Page 11