HomeMy WebLinkAboutNatural Resources July 10 20011
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
July 10, 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,
RELATING TO NONCONFORMING SURFACE MINES AND SURFACE
MINING IN RURAL, AGRICULTURAL, RURAL FORESTRY AND
COMMERCIAL FORESTRY ZONES (AB2000 -301)
McShane stated that they had requested advice on this issue from the
Agricultural Advisory Committee and the Surface Mining Advisory Committee.
Matt Aamot, Senior Planner, stated the Surface Mining Advisory Committee
sent a memo to the Council. It is in the Council's packet. The Surface Mining
Advisory Committee recommended the Planning Commission version of the mining
rules. He just received the Agricultural Advisory Committee recommendation,
which is to make modifications to the Planning staff version of the mining rules.
The Agricultural Advisory Committee recommends including the term "terraces." A
Comprehensive Plan policy talks about allowing this activity for knolls and ridges.
Adding terraces may require a Comprehensive Plan amendment.
There are housekeeping matters. The County and the state require a hearing
if the County Council wants to change the Planning Commission recommendation.
Also, they should send the Planning Commission version to the state again for a 60-
day review period. The Growth Management Act requires that any amendments be
sent to the state. Staff did that originally. Because the Planning Commission made
some significant changes, staff thought it should be sent again, which they did in
mid -June. Their 60 -day period won't be up until mid - August. If the County Council
approves the Planning Commission recommendation, then staff suggests waiting
until September to give that approval. Allow any state agencies to comment.
He created a chart that highlights the major differences between the Planning
Department version, Planning Commission version, and Councilmember Hoag
version.
Roger Ellingson, City of Sumas, submitted a letter from the Conservation
District, dated June 13, 2001. With the Conservation District's recommendation,
the committee has three recommendations. The Surface Mining Advisory
Natural Resources Committee, 7/10/2001, Page 1
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Committee was handling its business by consensus. The Council directed them to
take a vote. There was poor attendance at that meeting. What happened at that
meeting is troubling. Advisory Committee members Alvin Starkenburg and John
Van Boven advocated the Planning Commission recommendation. The Council
needs to recognize that those two members of the committee have a strong conflict
of interest. They may still have the same conditional use permit application
pending that involves 331.64 acres at the end of Van Buren Road. Columbia
Aggregate also has an application that the City of Sumas is concerned about. Take
the Surface Mining Advisory Committee recommendation with a grain of salt. Mr.
Starkenburg hopes to mine specific terraces if the ordinance is changed according
to the Planning Commission recommendation. The two recommendations from the
agricultural community indicate that they prefer to have a science -based approach.
That approach allows extraction with appropriate safeguards for reclamation. They
recommend the Planning staff's recommendation as an interim measure until a
science -based program can be formed. The Agriculture Advisory Committee
recommends a six -acre maximum on agricultural soils. For clarification, he is only
speaking about mining in agricultural zoning. The agricultural economy is doing
well in the County.
Mining in agricultural zones needs to be limited. In that regard, this Natural
Resources Committee had a presentation by Bill Lingley on the construction quality
aggregate study. He asked Mr. Lingley about reclaiming agricultural soils. Mr.
Lingley said 20 percent of the topsoil is lost when it is stripped off for mining. Mr.
Lingley also concluded that 70 percent of productive capacity is lost. A
conservative approach is a very good one.
The most important issue now is how they handle the mining limitation.
Include terracing without any restrictions is too wide. It would require a
Comprehensive Plan amendment. If they allow mining of terraces, it will still allow
the farmer to raise a large amount of money. There are many terraces around, and
it will be difficult to define a terrace. Even though the Agricultural Advisory
Committee agrees on the six -acre limitation, they indicate that maybe it should not
be restricted to knolls and ridges. Go along with Conservation District
recommendation of a science -based approach focusing on soil characteristics. The
system is subject to abuse from the use of the "pac -man" approach. Staff's
recommendation to tighten this up is a good recommendation that is based on fact.
Lesa Starkenburg - Kroontje, 115 Front Street, stated there is a variety of
opinions. The Planning Commission did research on the staff's version. The
Planning Commissioners talked to farmers who've worked in the fields and removed
high areas and who have inherited sites that have been reclaimed. The Planning
Commission talked to people actually farming this land, and made a
recommendation. The Sand and Gravel Association recommends changes to rural
language and nonconforming use issues. The Planning Commission
recommendation is fair.
McShane questioned the staff recommendation to limit the size of conditional
use permit pits to three acres. He also questioned terraces. The Planning staff
Natural Resources Committee, 7/10/2001, Page 2
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initial recommendation put a limit on the size of a given pit under a conditional use.
He asked for information on why that recommendation was made.
Doug Goldthorp, Senior Land Use Specialist, stated the County Code is
associated with state Surface Mining Act, which has a three -acre threshold. There
has been recent debate on how tightly or loosely that is to be interpreted. He's had
conversations with the assistant state geologist, who said it was never the intent of
the state legislature to exempt the roving or pac -man surface mining activity.
During the latest legislative session, the assistant state geologist submitted a bill to
address the issue. They support keeping the activity to three acres. Anything
intended to be greater than three acres should be subject to state's Surface Mining
Act. Also, when it comes to evaluating environmental impacts, it makes sense to
assess those impacts comprehensively. Gravel operations can continue for
decades. They are market driven, which is sporadic. It made more sense to
evaluate the impacts, if it were to be larger than three acres, and to look at it in a
comprehensive sense through the Comprehensive Plan process. Keep the
conditional use mine to three acres to minimize the impact to the area.
Roland Middleton, Land Use Division Manager, stated the interpretation for
incremental extraction of three acres has been the interpretation of Whatcom
County for 15 to 20 years. That interpretation was appealed to the Hearing
Examiner. The Hearing Examiner upheld that interpretation of the Code. The
Council upheld the Hearing Examiner decision. It is very problematic for the staff
to review a project. They now have the mineral resource land (MRL) process for
larger mines. It is more appropriate to go through that public process to establish
if a mine is going to be a mineral resource land area. A small three -acre pit can be
handled through the conditional use process. However, an operation that will only
have three -acres open at a time and still allowed to mine throughout the entire
parcel is problematic for the public, the staff, and the industry to compete with
someone not going through the MRL process. That is why staff proposed a three -
acre limit. If larger than three acres, the mine should be an MRL. The Planning
Commission version recommends the process the way it is now.
McShane stated a concern is that the criteria for obtaining an MRL would
require a large deposit. A fear is that a mine using the current pac -man approach
would not meet the MRL criteria. He questioned whether the County is accepting
MRL's that would not meet those criteria. Middleton stated staff is evaluating that
currently. They are also trying to decide whether or not they are going to
recommend approval of an MRL that does not meet criteria. Those deposits that do
not have one million cubic yards wouldn't meet the threshold of an MRL
designation. However, three acres, depending on the depth, would still be enough
of a deposit to allow the property owner to mine the highest graded portion of the
property. At same time, it would still meet with the intent of the state's regulation
of being three acres or less. Staff strongly recommends that only three acres or an
MRL are allowed. Allow the staff to go through the process to look at the MRL
criteria, and have a different tier of the MRL.
McShane stated that in other counties, a pit has to go for MRL status, or the
pit doesn't expand. He asked how other counties are handling the three -acre limit.
Natural Resources Committee, 7/10/2001, Page 3
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Goldthorp stated many smaller operations outside if MRL are nonconforming.
Whatcom County is liberal in its nonconforming use, compared to other counties.
Whatcom County permits the activity indefinitely. Other counties require the mine
to conform over a certain period of time.
Hoag asked how large a deposit would be one million cubic yards. Middleton
stated he worked on a project that was 12 acres, with a variable depth from five to
55 feet deep, which had about a half million tons. It is hard to estimate an
average. There are deposits that won't meet a million cubic yards. The policy
question will be whether a three -acre area is appropriate for mining, and if the
County wants to allow mines larger than three acres that don't have an MRL
designation. If the answer is yes, then adopt the Planning Commission
recommendation, and he would prepare his budget accordingly. The reviews the
County must do take up a lot of Mr. Goldthorp's time.
Goldthorp stated that one acre that has a deposit one foot deep is 1,600
cubic yards. If a deposit is 20 feet thick, it would require 31.25 acres to have one
million cubic yards.
Nelson stated the staff recommendation is to allow the conditional use of
three acres, and anything larger would require an MRL designation. He asked what
the six -acre recommendation is for. Middleton stated that is for agricultural
enhancement.
Nelson stated six acres is 15 percent of a 40 -acre parcel, which is the size of
agricultural parcels. The Whatcom County Sand and Gravel Association recommend
a limitation of five acres for Rural zone areas. He questioned whether they are
considering different recommendations for different areas. Middleton stated staff
considered differentiating between agricultural enhancement, which is a specific
problem. A way of fixing that problem, or enhancing the viability to eliminate knolls
and ridges, flatten out the land, and do that economically by trading away sand and
gravel. Staff wants to make sure there are limitations to ensure that is the true
purpose. That is different than someone who wants to open up a mine. Staff looks
at that in a different light.
Dawson asked why a three -acre maximum is in commercial forestry areas.
Goldthorp stated it is based on state Surface Mining Act.
McShane stated six acres is for enhancement more than mining.
Middleton stated they are trying to stay with County's intention to stay with
agricultural enhancement. The difficulty is determining whether a proposal is really
enhancement or just a mine in an agricultural area.
Dawson asked the reason for not considering the wellhead protection
provision. Aamot stated it is a good idea. Staff overlooked it in the original
adoption. It is a good idea to have a wellhead protection zone. Staff would support
the proposal to incorporate the current wellhead protection language into the
Agricultural zone.
Natural Resources Committee, 7/10/2001, Page 4
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Starkenburg stated Whatcom County's Development Performance Standards
for surface mining, which includes conditional use surface mines, require a distance
of 300 feet from any potable water supply. It is an ongoing provision.
McShane asked how to define a terrace. Goldthorp stated there are
definitions from the American Geological Institute. It is a geomorphic feature that
has two sides to it. It is steeper on the left side than the right side. It has a flat
top surface to it that extends for considerable distance. It drops down to another
flat surface. It is the steeper surface between the two flat ones that cause the
farmer's grief, and what they want to level. The problem has been that the
inclusion of terraces into the equation is that it is easily abused. A terrace would be
like two tabletops sitting at different elevations, joined with a steeper portion in
between. There is an accepted term for terrace in the geomorphic community.
Nelson questioned a slope of the terrace. Goldthorp stated it is more about
the relation of the upper surface to the lower surface. There is no angle that
distinguishes a terrace from something else.
Hoag asked if anything in the Planning Commission recommendation
prevents someone from taking out terraces on top of terraces. Goldthorp read from
the Planning Commission recommendation, which states that the activity will only
remove sand and gravel knolls and ridges, or modify the edge of a terrace to a
farmable slope. An edge is just that portion that joins the two level surfaces.
Hoag questioned whether the restriction of reducing the terrace edge to a
slope of less than six percent prevents a farmer from going further. Goldthorp
stated that is correct. It is a matter of opinion of whether that is too much or too
little.
Hoag stated testimony given was that a 60 -foot drop on a terrace to bring it
to a six percent slope used up 760 feet, plus 240 feet. She questioned what
happens if there is another terrace within 900 feet. Goldthorp stated removing the
edge and the six percent requirement begins at the toe of the slope. One would
take out the first slope at six percent. At the second slope, begin at the toe and
take out to six percent of that slope.
Hoag asked if they need to make a Comprehensive Plan amendment if they
include "terrace" in the definition. Goldthorp stated he believed they do.
McShane questioned whether terraces are a common feature in agricultural
land. Goldthorp stated they are. There are terraces everywhere.
Dawson asked if the farmers could traverse a terrace slope safely. Goldthorp
stated they could traverse the slope at a safe angle. In some instances, the
orientation of the crop is important to the angle of the sun.
(Clerk's Note: End of tape one, side A.)
Natural Resources Committee, 7/10/2001, Page 5
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Goldthorp continued to state that at times they have to traverse down the
steepest portion of the slope. The farmers do that at their own risk, or they stop
their harvest at the top. That is an awkward and expensive process.
Nelson stated the slope could also impact irrigation. A terrace would be
defined as anything greater than a six percent slope. Goldthorp stated they could
adopt that as a definition. In most geologic circles, there is not an inclusion of an
angle to the slope.
Middleton stated, in administering the code, they could hold the slope at six
percent. That is how they would end up defining it.
Nelson stated one could backfill in material or take material away. Middleton
agreed if the true proposal is to enhance agriculture.
Hoag stated farmers would historically terrace steeper slopes to increase the
area that could be farmed. She asked why that would be awkward and expensive.
Goldthorp stated that is what farmers have told him. It is difficult to move farming
equipment over the steeper portion between the terraces. The farmer couldn't
make a continual run with the equipment. He submitted RCW 78.44.030(17)(A) -
(D), which defines what a surface mine is. This section includes the intent of
mining areas larger than three acres in size.
Hoag questioned why the Planning staff did not recommend keeping the rate
of extraction to the average of the previous five years. Aamot stated it is difficult
to get that information out of the miners. The state also uses as a criterion for a
surface mine a slope greater than 30 feet high and steeper than one -foot horizontal
to one -foot vertical. If the operating face is steeper and higher than that threshold,
then the state considers it a surface mine.
Hoag questioned whether that criterion would apply to any of the terraces.
Goldthorp stated that if the mining face of the terrace exceeded the criterion, it
would be subject to the state's Surface Mining Act and prohibited by the County
Code.
Nelson stated that a mine less than three acres with a one -to -one slope and
that is 30 feet or higher would be subject to the state's Surface Mining Act.
Hoag stated it would be banned in the Agricultural zone.
Middleton stated that scenario could happen easily for rock quarries. One
could make an argument that that could happen in the Agricultural zone. However,
the type of material in the Agricultural zone makes it unlikely.
Hoag questioned the purpose of keeping an activity a nonconforming use if
they don't keep track of the rate of extraction. Aamot stated they keep track of the
lateral footprint.
Natural Resources Committee, 7/10/2001, Page 6
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Middleton stated that to go back five years and figure out the rate of
extraction has been nearly impossible.
Hoag stated the Hoag version was a compromise discussed in committee.
She only compiled the suggestions.
McShane questioned whether the Planning Commission version has been
submitted to the state. Aamot stated they originally submitted it last year. They
resubmitted it mid -June. It might be good to wait the 60 days.
Nelson stated he wanted to wait the 60 days, and see what the state's
comments are. He suggested holding this item in committee until they get the
state's recommendations on the Planning Commission version. Aamot stated staff
would continue administering the current code.
McShane stated the state has already seen and made comments on the
staff's version. The Council would still have to have a hearing.
Nelson stated he likes parts of each version. He wants to hear what the
state has to say before going forward with his proposals.
Ellingson stated that the state would comment on the entire ordinance. Staff
can get comments on specific items by making a phone call. Typically, the state
will look at the entire package. An item on one package may be okay with the
state, but it may not be okay in a different package with different components.
Nelson stated the County would get significant information from the state on
the Planning Commission package. Whether or not the state is happy with the
recommendations, he will be able to make a decision based on the state's
comments. If he called state staff members, he could get different answers from
different state staffers.
McShane stated that he agreed on holding this item until they get the state's
comments. The three major issues are limiting conditional use mining, terraces,
and the rate of extraction. He would entertain any amendment to add wellhead
protection.
Hoag moved to include language into WCC 20.40.165, "No excavation shall
occur within the five -year zone of contribution for designated wellhead protection
areas. Excavations may occur within the 10 -year zone of contribution outside of
the five -year zone of contribution if they are not within ten vertical feet of the
seasonal high water table. Wellhead protection boundaries may be adjusted in
accordance with WCC 20.73.131(2)." This language is consistent with Rural and
Forestry sections of the code.
McShane stated he had concerns about this not being necessary for farm
enhancement. He would be in favor of it if terraces are included. For clarification,
the committee is formally working from the Planning Commission version.
Natural Resources Committee, 7/10/2001, Page 7
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Hoag stated this is the language adopted in the MRL process. It is more
liberal than the language adopted in the original process. This was the compromise
worked out between the industry and the Planning Commission version. She would
like to see something more restrictive, but she wanted to be consistent. At least
put the minimal protection in.
Motion carried unanimously.
Hoag moved to amend WCC 20.83.020(3), "For the purpose of this
section,...shall n9ean include any of the following:" The intent is that a surface
mining operation is considered an expansion if it meets any one of the following
items. The way the language is currently worded, it could be interpreted that every
one of the following items would have to be met. Aamot stated the word 'include"
might imply that something not listed could also be an expansion of a
nonconforming use.
Hoag questioned the reason for the change.
Nelson stated he preferred the original word "means."
Ellingson stated he would get back to the committee on his reason for the
suggested language change.
Hoag withdrew the motion until Mr. Ellingson could clarify his reason for the
suggestion.
John Gillies, Natural Resource Conservation Service, discussed the
background for the Conservation District suggestion for having a scientific basis.
They've debated about this issue of productivity, and how much they are losing.
They don't know the answer in Whatcom County because no one has looked at this
from a science -based point of view. It would be worthwhile to spend some time to
know what they are giving up in terms of productivity by doing some science. Set
aside some land, grow crops on reclaimed land side by side with land that has not
been mined.
Hoag stated she talked to Bob VanWeerdhuizen, who has only grown grass
and corn on reclaimed land. One could grow grass and corn anywhere. There is a
marked loss in the capabilities of the soils as shown in areas where it has been
tried. She suggested taking a crop that requires very good soil, find an area that
was mined to a considerable depth and then reclaimed, and try to raise a crop with
the same results in the same amount of time. She hasn't seen that happen. In
order for farmers to survive, they need to adapt their crops to what the market will
carry. If they remove productive capabilities from the soils, they remove the ability
to adapt.
Nelson stated they can't dictate whether the farmers will use their land to the
highest and best use. The County needs to know what it is trying to accomplish
and if this is the best way to get the information they need. Address how the
Natural Resources Committee, 7/10/2001, Page 8
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restoration occurs. There are more questions than answers to show what is
happening.
Bob Wiesen, 3314 Douglas Road, stated they are talking about giving the
farmers the flexibility to adapt. The VanWeerdhuizen area is very hilly and is not a
good example. Now, they are able to work that land more efficiently because of
what they did there. The terracing issue is to reduce the slope to get equipment on
the terrace. The practice on a particular piece of ground should be left up to the
farmer and the Soil Conservation Service, rather than the government
micromanaging what a person can and can't do.
(Clerk's Note: End of tape one, side B.)
Wiesen continued to state that the Planning Commission went on visits and
looked at restored land. The Planning Commission wants to save the farmers. The
farmers do not farm land that is rolling. It is too difficult. They are not going to
keep the farmers in business by tying red tape around their necks.
McShane stated they should limit the conditional use to three acres and
carefully look at the MRL designation to see if it is a hurdle that is too high. He is
not keen on including terraces for farm enhancement. He would like to stay with
the Planning Commission version on the rate of extraction. It puts the staff in an
awkward position sometimes, but it is a reasonably doable thing.
Hoag stated she didn't want to restrict what farmers can farm. Mining is not
farming. What they do should not put farm soils at risk, which puts farmers at risk
in the long term.
Nelson moved to hold in committee until they receive comments from the
state on the Planning Commission recommendation.
McShane stated that if they limit the size of a conditional use mine, he would
be interested in looking at making it a bit easier to get the MRL designation. He
submitted a topographic map of a terrace in the county. It shows the area that
would be mined to a six percent slope. The Planning Commission's version would
allow that much mining to occur. It is a mile or more in length, and about 880 feet
deep. It is not on one property. That is an idea of what a terrace mine can do at
six percent. The slope has not been farmed, and is covered with trees because it is
steep. It is the edge of a former out wash channel. There are slopes like that
throughout the agricultural areas. They are typically not farmed because they are
very steep.
The area would produce a fair amount of gravel. However, the issue is
whether or not that area should be mined, and if it should be an MRL. Don't avoid
the real debate on whether or not they want to do deep mining in an Agricultural
zone. If they are going to mine in the Agricultural zone, then maybe they should
just really go for it and mine it rather than mine it halfway, and damage the soil. It
is a backdoor way to get at resources that may be inappropriate. They wouldn't get
the full use of what the gravel might be. Be up front about the debate instead of
Natural Resources Committee, 7/10/2001, Page 9
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trying to slip something through. They should eliminate the pac -man approach.
That will remove a fair amount of gravel mining that is done in the county. When
they look at the criteria for the MRL designation, they may be excluding some very
good deposits. He's never received a complaint about an MRL- designated permit.
He has received complaints about the three -acre pits because people don't know
they are allowed to move through an area. People expect the MRL's to be there.
Hoag questioned whether Councilmember Hoag condoned opening up the
Agricultural zone to MRL's.
McShane stated he did not condone it one way or the other. That should be
the debate. Either they do it or they don't do it. Make the decision on whether it is
a good idea or not a good idea. If they are going to allow MRL's in an Agricultural
zone, they can then figure out what the impacts to agriculture would really be.
They can't determine the impacts of the three -acre pits because they never fully
evaluate the environmental consequences. The MRL is a better planning approach.
He would lean away from approving an MRL in an Agricultural zone. However, an
MRL application in an Agricultural zone would provide the studies up front.
Aamot stated the response from state is expected mid - August. They could
schedule this issue at the first meeting in September, on September 11.
Motion carried unanimously.
ADJOURN
The meeting adjourned at 11:20 a.m.
Jill Nixon, Minutes Transcription
ATTEST:
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dana Brown - Davis, Council Clerk Dan McShane, Committee Chair
Natural Resources Committee, 7/10/2001, Page 10