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HomeMy WebLinkAboutNatural Resources September 11 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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