HomeMy WebLinkAboutNatural Resources September 11 20011
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
September 11, 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
Absent:
Connie Hoag
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 the letter from the State Office of Community Development
has arrived regarding the proposed changes.
Matt Aamot, Senior Planner, stated he prepared a chart of the four
alternatives. The similarities and differences of the proposals are included in the
chart. The County received a letter from the State Office of Community
Development, which recommends against mining of terraces in the agricultural
zone. Last time, this committee voted to include the Connie Hoag wellhead
protection language, restricting mining in a wellhead protection zone. The
committee also made changes in ordinance 2001 -020, regarding the reclamation
provisions in the agricultural zone. This proposed ordinance came in before May.
Council packet page 7, item 13, talks about performance bonds. The new
ordinance language is, "...provided that the project is in accordance with
reclamation has been completed according to the reclamation plan." He will insert
the updated language.
Nate Kronenberg, 2351 E. Pole Road, Everson, stated he is a rural resident
living adjacent to a surface mining operation. He is a spokesperson for his
neighbors. The existence of nonconforming pits is a blight on lands and is
frequently ignored. He is gratified to see a document that addresses some of the
impacts. In spite of the opening statement about the intent of the ordinance, there
are critical missing elements, particularly about impacts to rivers. Update these
concerns. This ordinance has been reviewed and approved by the Planning
Commission and the Surface Mining Advisory Committee, but both bodies are
dominated by surface mining advocates and have ignored residents. Defer passing
the proposal to the full Council until these concerns have been addressed. Rather
than take a lot of time on each specific item, he would list the impacts to neighbors
that have failed to be recognized. One concern is the use of recreational lakes as a
reclamation plan. Findings 7, 8, 9, 11, and 12 refer to those issues. A second
Natural Resources Committee, 9/11/2001, Page 1
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concern is inadequate regulatory program and development of performance
standards that have never been adequately addressed. A third concern is water
quality and quantity certification, in Findings 11, 12, and 13. A fourth concern is
expansion of nonconforming surface mines both laterally and to depth, in Finding
19. A fifth concern is responsive monitoring and enforcement of mining operations
and reclamation. A sixth concern is reclamation requirements by the County for
later rural residential use of reclaimed pits. The seventh concern is exclusion of
individual wells and groundwater aquifers from adequate protection. These are
elements of impacts to neighbors that have not adequately been addressed.
Harry Skinner, 6600 Goodwin Road, Everson, stated he is the remaining
citizen representative on the Surface Mining Advisory Committee (SMAC). He
agreed with Mr. Kronenberg's comments. The intent of the section of this
amendment is to address impacts to neighbors, agricultural lands, and water
supplies and determine the level of mining that is appropriate in areas of the county
that are not designated mineral resource lands (MRL's). The elements of this
ordinance are not serving that purpose. The basic intent of this amendment is
being missed. Surface mining is too far out of control in this county. MRL's are
given unjust special treatment by waiving all requirements that all other mining is
subject to. There is an automatic disconnection when the State Department of
Natural Resources (DNR) has any jurisdiction, and that is a total misreading of the
state statutes. The County and DNR share jurisdiction. It is not an either /or
status. The state Surface Mining Act only gives authority over reclamation to the
DNR. Other areas are the County's jurisdiction.
Incremental expansions of mines in three -acre increments subvert the intent
of the state Surface Mining Act. A mine can grow in three -acre increments, well
beyond what was intended by state Surface Mining Act. The County is still out of
compliance with the Growth Management Act (GMA). Whatcom County is required
to have a regulatory program in place within two years. The County is well beyond
that.
Legitimate reclamation is restoration and not restoration lakes. The
proposed recreation lake is 150 acres on the Siper Road. The proposal is to convert
agriculturally zoned land to a lake without the public process of a rezone. This is
not a legitimate reclamation process. There is no such thing as a land use in the
County ordinances that describes a recreation lake. Their action needs to revisit
the basic assumptions that are false.
Estimates of long -term shrinking gravel supply in Whatcom County are an
unfair urgency. The estimate of seven years' supply remaining needs to be
revisited.
The gravel mining regulatory language is scattered throughout the zoning
sections of the code. The code on gravel mining needs to be reorganized and
restructured into a single document. Without fully funded, adequate, responsive
monitoring and enforcement of this ordinance, it is a useless document. They have
a problem gaining control and enforcement of the requirements in the field. The
Natural Resources Committee, 9/11/2001, Page 2
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public's input has never been meaningful. The structures of the various committees
do not invite meaningful public input. The states of Illinois and Indiana have
developed standards for reclaiming agricultural soils.
Missing elements are needed to accomplish the stated intent. All the
elements have to be included to deal with the subject of nonconforming mines.
Reference findings six through 12, 18 and 19. No elements of the ordinance reflect
impacts to neighbors, quality of life, and property values. The committee might
want to revise the intent of what this is about. Go through the findings and delete
those findings that claim to address this ordinance, but do not.
There is no mention of recreation lakes. There is no detailed dealing with an
appropriate level of mining in the agricultural zone. These are not included in the
text of this amendment. Impacts to aquifers and groundwater supplies are
addressed only in the wording dealing with water supplies in the five- and ten -year
zones of contribution. The ordinance does not deal with aquifers and water supplies
in general. The high priority watershed areas are also not included. The committee
has just scratched the surface in this amendment. Withhold action on this until
there is complete coverage of what was intended. They need to define expansions
to include depth. Otherwise, it will not be a sufficient amendment. The ordinance
doesn't address mines that are already below the water table.
Reclamation needs to be defined. Reclamation is restoration. Reclamation is
not conversion to another land use, such as a recreation lake. That is a rezone
from agricultural land to a recreation lake. That is not a land use.
Miscellaneous terms, such as abandonment, need to be defined. Every
permit in Whatcom County has had zero lands reclaimed.
They have to certify and survey what they mean by existing water table
levels and also the existing footprints at the time this ordinance is passed. All
nonconforming mines must be required to survey their outlines, footprint, and
actual impact on the soils because many provisions in this ordinance relate to mines
beyond a certain point. They cannot quantify those boundaries without surveys and
certifications. Delay action until the committee gets meaningful public input.
Gary Dahl, Sand Road, stated he lives next to a surface mining operation.
Issues are not being addressed. He can't get help from the County. Regulations
are written too loosely. Many violations to the code have happened.
Regarding reclamation, his neighboring mine is back filling their operation
with anything it can. He can't get anyone to put a stop to it. The mine has gone to
the water table, which is always shallow. The mine shouldn't be allowed to go
down to the water table. He has a well adjacent to the operation. There is an issue
there. Regulations for mining are too loose. The mine operates from 6:30 a.m.
Traffic affects quality of living. There are impacts to expanding in a rural and
residential zone. Take the time to pin the regulations down.
Natural Resources Committee, 9/11/2001, Page 3
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McShane asked if the mine next to him is an MRL. Dahl stated it is not. It is
a nonconforming use. The mentality he's experienced is that, if something has
been done long enough, it becomes legal.
Nelson questioned the specific codes that are being violated. Dahl stated the
mine is using unapproved fill. They are bringing in garbage from the commercial
nursery operation. The zone is R5A. It is a nonconforming use sand mining
operation.
Dawson asked who approves the fill.
Aamot questioned how big the pit is, if there is a DNR permit, and the
amount of acreage. Dahl stated it is about a 40 -acre parcel. They've strip -mined
the entire area and taken off all the topsoil. A pond has been demolished.
Nelson asked if that mine is allowed to dig out 40 acres. Aamot stated the
nonconforming rules allow a person to mine five acres at a time, as long as the
previous five acres are reclaimed. They don't need to get a permit. If a site is over
three acres, the mine needs to have a DNR permit. This proposal would change the
regulation so that a conditional use permit would be required to go off the footprint.
Dawson questioned whether Mr. Dahl has gone to the DNR. Dahl stated he's
talked to all the regulatory agencies. The decisions the Council makes will directly
affect the way he lives.
Dawson asked who Mr. Dahl has contacted at DNR. Dahl stated he would
provide that information at the evening meeting.
Dawson stated she would follow up on Mr. Dahl's issue.
Dahl stated he represents his neighborhood group. They've talked to the
mining owners, but that didn't work. Surface mining in a residential area doesn't
make sense. There are no provisions to protect residents when a gravel pit moves
in.
Roger Ellingson, attorney, stated the Planning Commission recommendation
is remiss as indicated by his previous letter and as indicated in the letter from the
State Office of Community Development. There is no definition of "farm
enhancement purposes" and the ordinance allows mining of terraces. There is a
profusion of terraces in the agricultural zones in the county. If they open the door
to terraces, they are going to open the door to large -scale mining in the agricultural
zones. Terraces can run up to 100 feet in height and a mile or longer in length. He
read language from the Office of Community Development letter, page two. He
also read from the Agricultural Advisory Committee letter dated July 6, 2001, page
2, second paragraph.
The County has no reclamation experts on its staff. If the County gets into
the reclamation business, it will not be free. There are no experts in the county on
Natural Resources Committee, 9/11/2001, Page 4
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successful reclamation lands. There has been no successful reclamation. A slower
method is a better approach. Attempt a test plot of land for reclamation. One
property has been identified as a test site. It was a conditional use that started as
a fill- and -grade permit that went awry. The only way to salvage the property for
farm use is to allow some kind of excavation. That would not be a dangerous
precedence to establish terraces as part of the existing ordinance. He tried to
encourage the operator and owner to make it a test site, and follow it up for five
years. In two years, they will be able to tell if reclamation can be done
successfully. They need to plant crops to regenerate the capacity of the soil. A
minimum of five years would be a good test plot time period. Involve the state
university and soil scientists. This is a complicated process that farmers and gravel
operators are not familiar with. Higher quality soils need to be scientifically
approached.
The farming community did not come to the Council with a proposal to
amend the ordinance. This came from the Planning Department because they feel
that they need to restrict mineral resource planning in rural zones. As a
consequence, the Planning Commission has turned around and opened the door to
more mining. He hopes the Council will follow the advice of the planning staff and
Agricultural Advisory Committee, and limit large -scale mining to MRL's. The City of
Sumas is prepared to fight the fight on one part of ground.
Peter Willing, resident, stated that allowing mining of terraces should be
removed from the ordinances. There are 67,000 acres of prime farmland in
Whatcom County. There are a total of 100,000 acres of farmland in the county. Of
those 67,000 acres, there are 41 different soil types. More than half of the soil
types are listed as being derived from terrace landforms. Allowing mining of
terraces is a huge expansion of the amount of ground that can potentially be mined
for sand and gravel. The ordinance contains no definition of a farmable slope. His
photographs show four different locations of terraces that could be mind under the
proposed ordinance. He displayed photographic slides of ridges and terraces in the
county.
(Clerk's Note: End of tape one, side A.)
Aamot questioned whether raspberries, currently growing on a terrace, could
be grown on the lower alluvial ground if the terrace was removed. Willing stated
the ground would be too wet for raspberries.
Lesa Starkenburg - Kroontje, 115 Front Street, stated that over a year ago,
this committee set up the SMAC because of comments made by Mr. Skinner and
Mr. Kronenberg. The SMAC has been meeting for a year to deal with a number of
these issues. This Natural Resources Committee also recommended to the Planning
staff to bring forward this issue. They are starting to get muddled between what
the SMAC is dealing with and the intent of what Planning staff started working on a
year and a half ago. The Planning staff was dealing with things they were having
difficulty with, including nonconforming uses. The current ordinance deals with
nonconforming uses loosely. A person is allowed to continue to move around a
Natural Resources Committee, 9/11/2001, Page 5
1 site, limited to DNR's regulations and the rate of removal. A site is limited in what
2 can be removed to the average rate of removal during the years of 1988 and 1992.
3 There are no limitations on depth, width, and the number of acres that can be
4 moved around. The Planning Commission put forward the same language as staff
5 to deal with how to move around the site. Now, the ordinance would require a
6 conditional use permit if the site expands beyond the original footprint. The
7 ordinance also deals with depth. Language in the conditional use permit specifies
8 depth in wellhead protection areas and critical aquifer recharge areas. The
9 conditional use permit process is how the neighbors get to comment on how the
10 nonconforming site impacts the neighborhood, and how the staff can set limits.
11 The hearing examiner can condition a program. The ordinance deals with this issue
12 through that mechanism. As a surface mining industry, the issues are related to
13 nonconforming sites, not MRL sites and large commercial sites owned by those who
14 know what the laws are and work with the County. These are small sites that fall
15 through the cracks. From the surface mining industry, deal with those
16 nonconforming sites. That is what this ordinance does.
17
18 Staff recommended a new way to define the expansion of a nonconforming
19 use. Staff wanted to do away with the average rate of removal condition. People
20 rarely maintain business records from that time period. The Planning Commission
21 left in both conditions. It is easier to work with the test if the average rate of
22 removal condition is gone.
23
24 The Planning Commission took a tour of surface mining sites that were
25 reclaimed to agricultural use, or were operating in the agricultural zone, including
26 Mr. VanDeHoep's property, which is a fill and grade permit that expanded beyond
27 the scope of the permit. The Planning Commission stood on the edge of the road
28 and learned it was not a knoll or ridge, which is why staff recommended denial.
29 The Planning Commission asked what the area was, and a staff member named it a
30 terrace. There was some discussion later about that project, and whether or not
31 that project was something that can move forward. The Planning Commission
32 inserted the phrase they did about terraces. The goal the Planning Commission
33 sought was to remedy that situation, and to give the farmer some flexibility. The
34 real issue is whether the committee wants to talk about farming and removal of
35 terraces next year when it looks at Comprehensive Plan amendments. The
36 Comprehensive Plan doesn't mention the term terraces. Talk about it in the context
37 of a Comprehensive Plan amendment, not in the context of a zoning text change.
38 They don't have to deal with that issue today. Although the Planning Commission
39 had a valid goal, the use of the language was not the most refined given the
40 Comprehensive Plan. Remove the inserted language dealing with terraces.
41
42 Dawson questioned whether they are getting the cart before the horse
43 without performance standards and regulatory programs. Starkenburg - Kroontje
44 stated there are performance standards, developed in 1992.
45
46 There are performance standard for surface mining activities. They deal with
47 noise, hours of operation, days of operation, and critical aquifer language. The way
48 the code is written today, one can remove knolls and ridges for enhancement
Natural Resources Committee, 9/11/2001, Page 6
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purposes. That section of the code was adopted by the Council at the request of
the Soil Conservation Service. Within that conditional use permit section is the
requirement that reclamation plans adhere to certain standards. The Soil
Conservation Service needs to approve the reclamation plan. Since the time the
Council passed that language, no projects have gone forward. There have been
two applications for projects.
Nelson asked if there has been no monitoring because there has been no
applications. Starkenburg - Kroontje stated there have been no permits issued for
knoll and hill removal. Other projects that removed gravel in the agricultural zone
and then reclaimed to agricultural uses began prior to 1992. A number of
reclaimed sites were done without any standards. There is no evidence that exist
under permitting records because there were no permits issued.
The Sand and Gravel Association feels that limiting the acreage of small -scale
operations in rural and agricultural zones is a matter of how they want to handle
the mineral supply. If the intention is to limit these areas, be prepared to expand
the MRL's. Don't look at it only by application. Look at it comprehensively. Look
at the best places for mineral extraction, and where they can get the most material
with the least impact. By creating a lake, they maximize the amount of material
they get out of a site, minimizing the acres of MRL needed.
The Planning Commission did a good job with the proposed ordinance. The
Planning Commission tried to only correct problems that exist. Much of the
language they adopted was the language that is already there. The problems are
definition problems. The Planning Commission version, with the removal of the
term "terrace" and the section on the average rate of removal, gets them to
something that is vastly improved for nonconforming uses.
Nelson questioned the percentage of mineral resources in the county that are
extracted from these three -acre nonconforming mines. Starkenburg - Kroontje
stated nonconforming uses and sites that are not in the MRL's are approximately 20
to 25 percent of the minerals extracted. Sites that have old permits will be closed
eventually.
Aamot stated the SMAC addressed the issue of the three -acre mines, and
came up with between five to ten percent of the total mineral supply from
nonconforming mines.
Starkenburg - Kroontje stated the three -acre pits would produce five to ten
percent of the supply. If adding the nonconforming sites, there is more.
McShane asked if there are nonconforming pits in mineral resource rich
areas. Starkenburg - Kroontje stated there are.
Dawson asked when the regulatory program, required by the Comprehensive
Plan, will be addressed. Aamot stated there are development and performance
Natural Resources Committee, 9/11/2001, Page 7
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standards in the code. It is an action item to develop a program. That is an item
the SMAC will be working on.
Dawson asked why the County is not involved in projects larger than three
acres. Aamot stated the County is involved in terms of operational and land use
consideration. As far as reclamation goes, DNR has sole authority. DNR can
delegate that authority to the County. The SMAC is opposed to that.
Starkenburg- Kroontje stated there is some overlap between DNR's
responsibility for reclamation and the County's responsibility in other areas. If a
person gets an updated reclamation permit that requires the site to be filled, the
County requires a fill- and -grade permit. Then, the County has the opportunity to
review the reclamation from the fill standpoint. There are conditions on slope
stability and types of material. There is some overlap of authority.
Skinner stated the County has the jurisdiction over the land use specified as
the final use of the site in the DNR permit. The issue is whether a recreation lake
can be a land use.
Jerald Hardy, 1308 E. Pole Road, stated the photo of grass and gravel
underneath looked like land that had been stripped with a little dust on top. If
plowed to a depth of six inches, one wouldn't have anything but gravel. He mines
gravel, and he farms. His income comes from farming. He would give the gravel
away. The mining has enhanced the farming. A farmer should be allowed to
enhance his farm. Rocks are the enemy of farmers. When there is a layer of
gravel underneath topsoil, the water drains away rapidly. Raspberry farms have
gone to drip irrigation. One can't use drip irrigation if there is a lot of iron in the
ground. It won't work. If Kickerville topsoil isn't watered daily, it is almost
worthless. That is why drip irrigation works successfully. There are plenty of local
examples of reclaimed farmland.
Nelson stated one question is how to monitor a reclamation project. He
questioned whether Mr. Hardy would be willing to pay for a consultant to observe
and report on a reclamation project, if he wants to enhance his farming. Hardy
stated he would pay for someone to monitor and consult on an enhancement
project. The only reason anyone didn't want him to remove that sand and gravel
was because of animosity. That gravel mine has done more to promote clean air
from the simple fact that the money from it went to blacktop a half -mile of dirt road
they had. Topsoil is lost when plowing row crops. No one is close enough to him to
get dust from his gravel pit.
Ellingson stated Mr. Hardy applied for 130 acres of his land to be a MRL study
area. That is not a farmer. Regarding the Soil Conservation Service approval of
these plans, the Whatcom Conservation District is opposed to the Planning
Commission recommendation. They recommend a science -based approach to allow
mining in agricultural areas. There is no evidence of a successfully reclaimed site in
the County. There is no evidence of it in the record.
Natural Resources Committee, 9/11/2001, Page 8
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Dawson asked who would develop a science -based program. Ellingson stated
the Conservation District would like to participate in a science -based approach
where they could determine a definition for farm enhancement purposes. Certain
types of soils are easier to reclaim because the productive capacity is lower in the
first place. It doesn't take so much work to do it. Those are the types of concerns
they want to address on a science -based approach. Mr. Gillies and Mr. Boggs want
to participate and help the County establish a science -based approach.
Starken burg- Kroontje stated Mr. Hardy was encouraged by County staff to
apply for an agricultural MRL because he wanted to remove more gravel from his
land. Under the current ordinance, he was required to do that with one permit,
three -acres at a time. The Agricultural MRL requires reclamation back to
agriculture. It is unfair to indicate that Mr. Hardy's motives are misplaced.
The Planning Commission, whose record is part of the Council record, took a
tour of these successfully reclaimed sites. The Council is welcome to take that tour
and look at those sites. Mr. Hardy has talked about these sites on the record.
She's talked about these sites on the record. There are a number of photos in the
Comprehensive Plan record of successful sites.
Dawson asked if there is a limit to pac -man mining. Aamot stated there is
not. It does not involve MRL designation.
Bob Wiesen, Planning Commission, stated the Planning Commission did a
good job on the ordinance. There was no intention by the Planning Commission to
allow mining of a huge terrace. Limit terrace mining so a farmer can make an
improvement.
(Clerk's Note: End of tap one, side 8.)
Wiesen continued to state that it makes sense for a farmer to make a slope
less steep for his equipment. The Planning Commission looked at many sites.
There are successful sites right here in the county. The Planning Commission's idea
was to allow farmers to do whatever they needed to do to farm their sites. It had
nothing to do with gravel.
McShane read from his memo dated September 1, 2001 on packet page 11,
paragraph one. Staff recommended, and the Planning Commission chose against,
limiting this type of mining. It would jeopardize significant areas of mineral
resources. That is not what they are here to do today.
McShane moved to strike terraces from the proposed ordinance.
Nelson agreed that there is a concern with the terrace language as written.
The problem is the extent of the acreage that could be involved. He would rather
err on the judicious side. Monitor changes to observe whether reclamation can
work. He questioned whether limiting the acreage would have an affect, if they left
the terrace language in the ordinance. Aamot stated it would be a different
Natural Resources Committee, 9/11/2001, Page 9
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approach to the situation. It would eliminate the potential impacts to agricultural
soils.
Nelson stated they need to work on the Comprehensive Plan if they are going
to significantly help the farmer.
McShane stated no farmers have complained about terraces. An area of the
county that used to have sand dunes has been mined, and has been reclaimed for
fairly productive farmland. Limiting the size does not eliminate the problem with
the definition of terraces.
Nelson asked if it would be better to work from the direction of the
Comprehensive Plan before doing this. Aamot stated on certain issues, such as the
terrace, the best way is to address the Comprehensive Plan first. Zoning
regulations have to be consistent with the Comprehensive Plan. They could move
foreword on elements of this ordinance, but the issue of terraces, because they are
not in the Comprehensive Plan, would be a touchy issue. The rest of the ordinance
can be moved forward.
Motion carried unanimously.
(Clerk's Note: The committee recessed at 11:15 to attend an emergency
meeting. The committee meeting was then adjourned due to the extended length
of the emergency meeting.)
2. DISCUSSION AND POSSIBLE DIRECTION REGARDING THE CANYON
CREEK ALLUVIAL FAN HAZARD AREA (AB2001 -287)
This item was not discussed.
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, 9/11/2001, Page 10