HomeMy WebLinkAboutNatural Resources April 17 20011
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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