HomeMy WebLinkAboutWater Resources February 19 20021
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Whatcom County Council
Special Water Resources Work Session
February 19, 2002
The meeting was called to order at 10:05 a.m. by Council Chair L. Ward
Nelson in the Whatcom County Civic Center Annex, Second Floor Meeting Room,
322 N. Commercial, Bellingham, Washington.
Present: Absent:
Barbara Brenner None
Laurie Caskey- Schreiber
Sam Crawford
Seth Fleetwood
Dan McShane
Sharon Roy
WATER RESOURCES WORK SESSION (AB2002 -065)
Bruce Roll, Water Resources Division Manager, distributed the Watershed
Living Kit and a matrix of the technical and administrative groups that the division
staff supports. In recent weeks, there has been an influx of requests from
community members that the department goes above and beyond what it currently
does. There are 22 different groups that the division supports.
Nelson asked for information on the fiscal impact of each of the groups to the
division. Roll stated a personal services contract for some of the clerical work is in
the amount of about $150,000. In addition, all of the staff's time is included.
There are facilitation services and a contract with Rob and Mary of Resolution
Services in the amount of $50,000 to $70,000. Primarily, the facilitators are
working on the controversial areas for WRIA. More and more groups are asking the
division for services, and it is becoming difficult.
Scarlet Tang, Public Information and Education (PIE) Coordinator, distributed
the Watershed Living Kit. One more piece, then ten most unwanted pests booklet,
needs to be added before it is complete. She described the different booklets that
are included with the kit.
Brenner asked if there is something like this kit for people who don't live in
the watershed. Tang stated the kit is available to everyone.
Brenner stated people might not think it will apply to them because the kit
specifies Lake Whatcom. Tang stated the kit is applicable to the county in general.
Nelson stated the Council is now discussing Lake Samish and other areas.
They should maybe have a kit that is generalized rather than specific.
Water Resources Work Session, 2/19/2002, Page 1
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Brenner suggested that the information say it is not specific to Lake
Whatcom. Put all the information together in one kit for everyone. She liked the
kit.
Tang stated the watershed living kit will be presented at the joint Lake
Whatcom Management Committee meeting on March 14.
Brenner asked if it would be very expensive to do a kit for the entire county.
Tang stated it would be expensive. They could have one -page information sheets
targeted at different basins. That would not be expensive to do.
Crawford stated they talked earlier about how to get people to care, as
opposed to getting people the information. That is the goal and the mission. Ir
addition, integrated pest management (IPM) needs to be explained in the
information on soil. Tang stated this would be the first step in getting people to
care.
1. LAKE WHATCOM
Lake Whatcom Moratorium
Roll stated the Council and staff have discussed structural and nonstructural
best management practices (BMP's). Now that they've discussed these, they must
discuss the Council's direction on actions it wants to see in place to lift the
moratorium. He distributed a concept paper that discusses some of the issues.
The template recognizes three critical assumptions. First is that it's not practical to
use actual loading /monitoring data to illustrate "net" reduction. With the lack of
data, they aren't able to show the cause and effect related to loading.
Nelson asked if they could collect enough data in six months. Roll stated no.
Nelson asked what they need to do to get accurate data in the watershed,
where people can know what the numbers are. Roll stated they began with an
action strategy, proposed by County Executive Kremen. To do all of these things, it
will take three to four years. They will need three to four years to get sufficient
data to do the modeling program. Council said it needed to know which pieces of
the strategy the staff could get done during the six -month period, and that would
be considered adequate to lift the moratorium. His concept paper proposes a
strategy of different things that can be done. He's looking for Council's guidance on
whether other things need to be added.
Nelson stated the State Department of Ecology (DOE) says that there is a
potential 303(d) listing, depending on what comes out of the Clean Water Act
decision. DOE is taking some data and making a decision. However, Dr. Roll is
saying that the County doesn't have enough data to make any decisions. Roll
stated he is not saying that.
Water Resources Work Session, 2/19/2002, Page 2
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Nelson asked what the County has that would be clear enough to track and
monitor whether or not these practices have an impact. Roll stated that right now,
the County has a loading piece that is beginning. There are gauging stations that
show flows. In May, they will begin actual data collection in coordination with the
DOE and the WRIA monitoring needed for the modeling pieces. In the interim, he
proposed last week to look at each basin and determine an estimated load based on
export coefficients, which is a method they use when they lack sufficient data.
They can relate to different land uses and export certain amounts of pollution. The
goal was to use a more simplistic model to come up with work plans that can be
tailored for each drainage area.
Nelson asked if DOE would be involved in this data collection. Roll stated
DOE has been coordinating with the monitoring pieces all along. This particular
piece uses existing data.
Nelson asked if DOE recognizes that their data collection may be insufficient.
Roll stated it does.
Roll stated he took pieces of the action strategy out for consideration as
actions to occur while the moratorium is in place or in response to lifting the
moratorium. They don't have sufficient data to look at the percentage reduction.
He proposes that they equate net reductions in terms of knowing where to
maximize reductions in a particular development situation, knowing that they may
want to mitigate or produce a net gain somewhere else. This assumes that there
are strategies, and step two requires some form of mitigation. The first step is a
series of steps required for development. The second step is about the offsite
mitigation that might need to occur to go for a net reduction.
The third step is to give them an idea that some of the actions will go past
the current moratorium. These were actually going to be part of what they
considered as adaptive management. Pieces of these could be fed into revising the
actions they need for subdivisions to go in.
Step one actions are those that are directed specifically at subdivisions. He
took out the headings from the action strategy that were titles. There are three
preservation tools that include acquisition, conservation easements, and transfer of
development rights (TDR'S). One issue with land preservation is that they would
have to consider other types of funding sources to make it a larger program. This
proposal requests that there be specific conservation easements placed as a
condition of a subdivision.
Brenner asked if staff believes that adoption of this proposal would reduce
subdivision loading to the lake. Roll stated they would if they use the current
system. However, subdivisions cannot mitigate all impacts on site.
Water Resources Work Session, 2/19/2002, Page 3
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Brenner asked if they could assume a net reduction. Roll stated they can
assume it, but he can't validate it.
Brenner asked if this is something that a reasonable person would assume
would create a net reduction.
Nelson stated the presentation the Council had was on various times of best
management practices and the percentages of reduction that would be realized.
Jeff Monsen, Public Works Director, stated these things deal with subdivisions
themselves. Dealing with a net reduction overall gets into step three, which
requires action everywhere, not just in step one.
Roll read from the second section in step one of the concept paper regarding
low impact development practices.
Nelson asked how phasing would work with small developments and their
financing.
Sylvia Goodwin, Planning Division Manager, stated that is a consideration. It
is more expensive to clear in phases rather than all at once.
Caskey - Schreiber asked if they could require the smaller developments to
keep a buffer around the peripheral of the property rather than phasing. Roll
stated that is what item one, requiring conservation easements, is about. That
equates to identifying the sensitive areas that require something to prevent any
problems. Conservation easements can be written many different ways, depending
on site location and what they want to accomplish.
Brenner suggested adding the word "buffer" to the language in the first
section.
Nelson asked if the Council supports the concept of phasing.
Caskey- Schreiber stated she supports phasing of larger developments. On
smaller lots, require buffers as a minimum. Require developers to put up a bond in
case something happens.
Roy stated she wanted to keep the phasing language strong for the
developments. She would hate to see too many loopholes for large developments.
It's a real issue. Staff can work with the smaller developments, but there should
still be strong language so there isn't a lot of wriggle room.
Fleetwood stated he agrees.
Crawford asked for clarification of what phasing means.
Water Resources Work Session, 2/19/2002, Page 4
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Nelson stated an example is ten acres in a rural, one dwelling per five acres
(R5A) zone, which would be subdivided into two lots. The road would go into both
lots, but only one lot at a time would be developed. Goodwin stated they are
talking more about big subdivisions, not a two -lot subdivision.
Nelson stated that is not defined. He asked where they draw the line.
McShane stated they are not quite sure where to draw the line for phasing.
Staff will have a pretty good idea.
Nelson stated he just wants to get a general idea from the councilmembers.
Crawford stated he doesn't know what the benefits are as opposed to having
a managed clearing plan for a project. He doesn't quite know what they are
accomplishing.
Rich Duane, Engineering Manager - Development, stated that in some cases,
they are not gaining a lot by phased clearing if the development is not right by the
lake or if the development has an excellent erosion control plan. The staff would
allow more clearing if the developer could show that there is no impact to any
water surrounding the development. Sometimes, the phased clearing may be for
the entire site. However, staff doesn't do phased clearing on the individual lots.
They want to allow the contractors to clear where they are going to work, and keep
covered what's not being worked on.
Hal Hart, Planning and Development Services Director, stated the key is to
minimize impact every step of the way. He wants staff to look at the code closely.
Scrub the code to determine whether they are minimizing the impact on a lot -by -lot
basis as well as for the entire subdivision. Development occurs around the lake in
both ways. Key components are proximity to the lake and steepness of the slopes.
It's going to be difficult to write a code that will address all those issues.
Brenner asked if many lots that are being individually developed and that are
close to each other would have the same type of requirements. Hart stated that
could happen. If the value of property jumps, they will see larger homes on
smaller lots. Somehow, they have to capture that potential. He wants to work
closely with the Building Industry Association (BIA) and developers about how they
can do this in a cost - effective way. They need to balance cost - effectiveness with
preventative prescriptions to minimize effects.
Unidentified speaker said there is plenty of research showing that the less
clearing areas there are, especially during the wet months, the less runoff there will
be. There's no shortage of examples in the watershed where a builder cannot keep
up with the maintaining all the sediment on site during a rainy time. Other folks
won't keep up with it, because they haven't had the education and because it is not
their priority. Restricting activity to dryer months and working with a smaller
Water Resources Work Session, 2/19/2002, Page 5
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
building footprint area would help that problem. The attitudes and perspectives of
the builders vary too much.
Fleetwood asked if the object is to craft development standards to identify
precisely what has to be done on a particular lot ahead of time, or if the goal is
more subjective and would allow the Planning Department to identify the needs for
each particular site.
Nelson stated they need to be as objective as possible.
Hart stated that one thing would be to minimize the development footprint.
That means minimizing the development impact in both the development process
and in the final product. The subjective part is what they will do to minimize the
development impact, and how they will do that. They also have to minimize impact
once it's built. That has to do with education and other things.
Brenner asked if the County has restrictions and covenants that dissuade
people from building up instead of out.
(Clerk's Note: End of tape one, side A.)
Nelson stated one tool they may want to look into would be bonding. There
are legal ramifications to that.
Brenner asked whether or not the County could do anything about sediment
ponds. Roll stated there are seven ponds in the county. Of those, five have had no
work or have no homeowners' association associated with them. The question is
how the County will ensure that they are properly maintained, from the point of
installation.
Nelson asked if they could use stormwater fees.
Brenner stated she is surprised that the County would allow things like
sediment ponds that have no ongoing inspection. Even with septic systems, there
are ordinances in place that require periodic inspections. She would like staff to tell
the Council what should be done and how often to ensure maintenance. That is not
her expertise. Roll stated there is no mechanism for maintaining them, whether it
is done privately or publicly.
Nelson asked the staff to come back to the Council to suggest appropriate
tools. Duane stated the County requires in the plat covenants that a homeowners'
association maintain stormwater facilities. However, the problem is that the
homeowners' association often does not exist after the developer sells all the lots.
The County has, on occasion, met with homeowners' association to educate them.
Some associations would maintain them, and some would not. On occasion, staff
required a bond, but that is a problem. They are hard to cash. Also, if they cash a
bond then they are left with nothing. It would maintain a facility one time, and
Water Resources Work Session, 2/19/2002, Page 6
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
then nothing would happen after that. Unless there is an active homeowners'
association, the homeowners' don't enforce what the County requires.
Caskey- Schreiber suggested a refundable impact fee. That would provide
incentive to the homeowners if the system is maintained over the years. Duane
stated that is hard to say. There are a couple of ways to do these things.
Brenner asked if the County can require the homeowners' associations to
stay active.
Erika Stroebel, Planner II, stated it is more complicated than needing to have
a homeowners' association. There is a need for people to understand how to
maintain the stormwater facilities. The County needs to provide guidelines on how
to maintain a stormwater facility.
Brenner asked if there are professionals who do that kind of thing. The
County could require the homeowners' association to have a contractual agreement
with someone who is a professional. Duane stated there is one development going
in now in which the County is requiring a maintenance contract for approval of the
subdivision. It's not rocket science. With minimal training, anyone can do it.
Crawford asked how the County will know, ten years from now, whether it is
happening. Duane stated the County won't know. That is a problem with the
system. The County doesn't go back and check the maintenance of the systems
unless there is a complaint.
Nelson asked what criteria there are in State law for stormwater districts.
Monsen stated it is just another special district. The issues are to identify who is
responsible, how they raise the money to perform the work, and how to accomplish
the work. In addition, it is a fully private activity. A question becomes how to
finance the monitoring to ensure that it occurs. They can set up a special district to
do that. It can be self - governed, or the Council could be the governing body. The
options are wide open.
McShane stated he has no qualms requiring people who are contributing to
pay in perpetuity. Those who are creating the problem should pay for it. Duane
stated the County could enforce covenants against the homeowners' association,
which is tough to do. The County could also increase its fees to take over
maintenance of specific stormwater facilities.
Crawford stated that as they consider these options, he would take the cost
as a lower priority. If they can say that phasing is a good thing, then the cost
should be secondary. There is a cost, yet to be determined, to developing and
living in the Lake Whatcom watershed. It is going to have to be borne by the
people who choose to live there. That is less important to him than it is be clear
about what the tools accomplish. He's not convinced that phasing would create less
stormwater runoff than just doing it all at once. If they can show that it does, then
Water Resources Work Session, 2/19/2002, Page 7
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
go for it. If the building community complains, then the County would be able to
show that it is going to be done. He is not opposed to that at all. Make the cost a
lower priority.
Fleetwood asked what the enforcement action would be, ten years down the
road. Duane stated enforcement action of a stormwater maintenance facility would
be the County performing the maintenance, and then charging the homeowners'
association. The homeowners' association is a corporation. The County would
charge the corporation. The members of the corporation would be the individual lot
owners. It would be easy for the County to do the work. It would not be easy for
the County to collect the cost for the work it performed.
Fleetwood asked if there has been any staff review of other similarly situated
counties in Western Washington. Duane stated some of the cities in Washington
State have taken over subdivision stormwater facility maintenance.
Brenner stated her last choice would be for the County to take it over. She
asked if the County could set up stormwater districts that are responsible to do
testing and maintenance. Monsen stated the trend is that the more urbanized they
become, the more likely it is that a government assumes that responsibility.
Depending on the level of assurance the County wants, they are creating a mini -
government, whether the County is doing it or whether the County is forcing the
creation of a special district. The higher level of assurance they want, the more it
looks like a government. If the Council wants to truly give people the option of
doing it themselves, then they must have some level of monitoring in place, with
the ability to step in. Creating the ability to step in is not free.
Brenner stated she didn't want the County stepping in to be the first choice.
It should be the last choice. She asked if it could be modeled on the water
associations. They are required by law to do certain things. If they don't, they can
be shut down.
Nelson stated the City of Bellingham had to step in and take over the Britton
Road Water Association. That is an example of where the government body had to
take over.
Brenner asked on to whom the City passed the cost.
Nelson stated it was passed onto the association.
Crawford stated the City went to the homeowners, not the association.
Roll stated he hears that the Council wants to make sure they are maintained
properly. Staff would provide options for maintaining those systems.
Caskey- Schreiber asked how much it would cost and how they would
generate revenue to get that program going. Monsen stated that developers are
Water Resources Work Session, 2/19/2002, Page 8
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
charged for one -time expenses. Ongoing monthly or annual fees from the
homeowner would pay for something that is ongoing.
Caskey- Schreiber asked what incentive there would be for the developer to
create a system that will work effectively 20 years down the road.
Nelson stated that is addressed through the planning process.
McShane stated that if the County maintains the system, it would be very
motivated to make sure the design is effective.
Crawford asked if there is a performance bond that would last twenty years
or more. Hart stated there is. An example is from a ski resort in Eastern
Washington.
Nelson asked if the councilmembers preferred that the County step in to do
maintenance or that it be homeowner - driven.
Crawford stated he preferred that the County take it over so it can ensure
compliance and that it is working long term. It is for everyone's health that the
County does it.
Roy stated she wanted to wait and see the plan. Enforcement is critical.
Now, there isn't staff and money to make sure they are working. She also agreed
with Councilmember Crawford in that it may end up costing more to build in the
Lake Whatcom watershed. The cost should not be the deciding factor. Look at
what's going to be affected.
Fleetwood stated he wanted to see all the options.
Brenner stated she wanted to see both options, but they need to be careful
before they say the County will do this. The County doesn't have to take this over.
There are regulations that work for septic systems. It will create a feeling that the
County is just doing this to create bigger government. It's important that the
County do this in a phased approach to see if the homeowners can do it
themselves.
Roll stated the items in the next section, education and enforcement of
existing land use regulations, are mostly pulled right out of the action strategy.
Fleetwood asked the effect of a labeled storm drain. Roll stated it is for
education.
Goodwin stated people won't put antifreeze down a drain if they know it goes
into the lake.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Stroebel stated one piece of that is mapping the storm drainage system.
Currently, some areas are not well mapped. It will help for future land use
planning and stormwater management.
Roll stated there are two pieces to the modeling. One piece is about what is
coming off of existing land use and the impact to the lake. Generally, two types of
models are looked at, a lake loading model and a lake response model. DOE is
working on lake response modeling. They are looking at nutrients. At the same
time, there is coordination with DOE and WRIA to do a more robust modeling effort
for the load, to predict how changes in land use equate to changes in the amount of
pollutants entering the lake in specific tributaries.
Models need to be populated by data that calibrates the assumptions. They
are coming to the point where they begin to do modeling. There are different levels
of definition that is rolled out. Ideally, they want modeling that would make
decision - making easy. That isn't going to happen for a long time. On the
continuum of creating models that provide more definition for the tough decisions,
they've tried to produce more simplistic models that help give guidance on the
types of on- the - ground programs they need in the watershed to deal with pollutant
loading.
During the moratorium, he proposes using a more simplistic model as a
program development tool to provide guidance on what is happening in each
drainage area, where most of the pollutants are coming from, and what the relative
magnitude of pollutants is that is coming from the urbanized areas. Through the
WRIA effort and internal work, he's broken down all the drainages in the watershed
so they can estimate the relative loads coming into each drainage area. Then, they
will be able to take some of the scenarios and predict the effect of different levels of
future build out.
Another issue is the mitigating strategy to deal with the pollutant loads. He
wants to present a strategy for each basin that deals with that combination of
structural and non - structural BMP's that are best suited for that particular area. He
hopes to be able to describe what they expect for a return by instituting the various
BMP management strategies.
Brenner stated now is the time they need to institute a pesticide use ban for
lawns in the watershed. They are going to spend a lot of money on gathering this
data. At least eliminate a part of the problem that everyone agrees is a problem.
Caskey- Schreiber stated a bigger problem is fertilizers.
Brenner agreed. She wants to ban both, however it will be more difficult to
figure out how to enforce a fertilizer ban. The County would get a lot of support for
this. Once this is approved, other people will notice and there will be complaints.
It won't be so difficult to enforce.
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DISCLAIMER: This document contains the Whatcom County Council or Committee
minutes, as approved. However, unless an attested signature page is attached, they
are not the final approved minutes.
Nelson stated 70 percent of the watershed is in a forestry use, in accordance
with regulations by the State DOE and Department of Natural Resources (DNR).
They use herbicides and pesticides on the lands to maintain them. A strict ban
would have ramifications on commercial forestry, rural forestry, and DNR lands.
They have to take that into consideration because that is the predominant use in
the watershed.
Brenner stated the County could ban it in the residential zone in the
watershed, and look at phasing the ban to the other zones of the watershed.
Nelson stated there are lake friendly fertilizers being promoted for use in the
watershed.
Brenner stated they are not required.
Roy stated this should be put on their list of options to look at. She isn't
ready to vote on a ban, but would like to look at the issue. Roll stated there are a
multitude of pollutants coming from urbanized areas. It is not just pesticides. The
next item on the agenda gets into how to monitor in a way so they can immediately
mitigate hot spots.
Fleetwood asked if acquiring scientific information, the last section in step
one, should be given a higher priority in the strategy. He also asked if collecting
that data first would drive the other areas. Roll stated it is a priority right now.
They are working to create an agreement to do the monitoring that needs to go
with all of this stuff.
Caskey- Schreiber asked if they would use any of the studies done by Robin
Matthews. Roll stated Dr. Matthews' data has been collected in a way that looks at
oxygen trends in the basins. It doesn't give them guidance on what is coming into
the lake. There is a lot of data out there, but the data must be tied to what they
are trying to accomplish. The City has collected some information from the
tributaries, but the frequency of collection is not enough to predict the loads.
Brenner stated that any fertilizer ban should be in areas of residential
development, not in resource lands. She asked for the option of doing a ban in that
way.
Roll stated the next two items in step one can be considered as a County
function while the moratorium is in place. The City and County have both looked at
the benefits related to street sweeping. It seems attractive in those areas where
there are not any BMP's. It's something to consider.
Initiating a long term monitoring program would be costly. To do some of
this monitoring for the next year or year and a half, the cost would be
approximately $160,000. This is just to start some of the water quality monitoring
for the tributaries. It doesn't include monitoring how development, over time,
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changes water quality or how stormwater ponds are or are not working. One
example is to have an inventory of shoreline properties. If someone is destroying
trees, the County will have a record to follow what is happening with land use over
time.
Brenner asked the purpose of street sweeping if they don't have drains. Roll
stated it is to remove the pollutants by picking them up.
Roll stated the $160,000 would be spent on the data needed to calibrate the
lake response model for total maximum daily load (TMDL) and the lake loading
model being done through the WRIA effort. They will always need to collect data,
but not at that rate and that amount. By the end of this year, they should have
this WRIA loading model in place for Lake Whatcom. The question is about the
Council's willingness to make the decisions given the data and caliber of modeling.
He's not asking them to spend $160,000 forever.
Nelson asked if there are areas in the City of Bellingham jurisdiction. Roll
stated there are.
Nelson asked if the County is coordinating with the City of Bellingham. Roll
stated he's talked to their staff about what they are doing. His main focus is on the
stuff in the County's jurisdiction.
Roll stated he wanted to talk about step two. If they are looking for a net
decrease in pollutant loads, then this talks about something extra beyond what they
just talked about. That is the prescriptions to deal with subdivisions. To get that
extra, net reduction, it means targeting something somewhere else to reduce
pollutants. He asked for Council input on what they want that to be.
Brenner stated she liked that it be tied to the type of impact that is being
mitigated. She's doesn't like the idea of creating a pot of money. That looks like
extortion. The mitigation should be for offsetting the impacts that a particular
development or house would produce.
Crawford asked the difference between an actual quality measurement and a
surrogate proposal. Roll stated an example is that total suspended solids that are
in suspension in the water can be made up of many different things, such as
phosphorus or metals.
(Clerk's Note: End of tape one, side B.)
Roll stated most places have some monitoring to look at other things
periodically to determine whether or not they are an issue.
Nelson asked if this would be a type of impact fee for development, and the
money would be used for retrofitting and other things necessary. Monsen stated
mitigation has to be definable enough to calculate an amount. That is typically for
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an activity that has a short end time. It is not money to support an ongoing
program. It is for something tangible. It could be structural or nonstructural.
Nelson stated it would be easier to define when they look at a particular
basin. Roll agreed. This tool can be used in the context of finding the best places.
Brenner stated part of the impact fee could be for upgrading the treatment
plant itself. Monsen stated the bigger challenge legally is showing a relationship
between the impact and the mitigation that the impact fee would pay for.
Brenner asked if they can legally attribute impact fees to upgrading the
treatment plant.
Roy stated that isn't what they are here for. They need to focus on getting
the lake clean, not on how they are going to treat the water. They are trying to
avoid having to increase water treatment.
Nelson stated this is about whether or not the Council wants to continue
looking at mitigation and reducing the total overall loading to increase the water
quality. There is Council consensus to do that, and for staff to present tools that
the Council can approve, while still being legal.
Caskey- Schreiber asked that the list include the option for someone to buy
the development rights in the watershed from someone who is willing to sell them.
Nelson stated that is already on the table. Step three lists the practices they
currently have for land preservation and other programs.
Roll stated it is important as a part of the adaptive management process to
look at these again annually, based on new information.
Crawford stated the Council adopted this moratorium in December. The
administration cautioned the Council that it will lead into a phenomenal amount of
work, and it would be challenging to get something on the ground in six months.
He questioned whether the Council should avail itself to more frequent meetings on
this topic. Roll stated it comes down to how quickly staff can do a next iteration
and have the internal discussions. Staff has a lot of things going on now. If staff
can get more work done on these pieces, it may require more lengthy discussion,
especially as they talk about funding.
Crawford stated that if they do meet once per month, they can meet after a
Board of Health meeting.
Nelson stated they could also meet during regular County Council meeting
days in a committee meeting.
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Crawford stated that if the Council puts a huge task on the administrative
staff, it should reciprocate to help in any way it can.
Caskey- Schreiber stated another option is to extend the moratorium for
another six months.
(Clerk's Note: The Council took a break from 11:50 a.m. to noon.)
2. WRIA 1 WATERSHED MANAGEMENT PROJECT
USU Phase III Scope of Work, Version 5
Roll stated they've gone through two phases of technical studies to date.
They will soon receive the final draft of the phase II scope of work product from
Utah State University (USU). He asked what the Council wants to do to review and
provide guidance on the final draft. Also, they are going into the final phase of the
technical studies. The Council has that scope of work in the Council packet. The
third piece is actual plan development. One piece of the plan is the science,
embodied in the decision support system, models, and data being generated. That
is the science -based support that will go into the WRIA Watershed Management
Plan.
The plan itself will be crafted through a contract with Parametrix. Parametrix
wrote a draft scope of work. This is the draft that they are seeking final support for
next week. A series of reports have been developed in phase II of the WRIA USU
study. He asked when and how the Council wants to be a part of the approval
process. The products have been through all the players in the WRIA process. A
couple of drafts have been done. They are down to the final draft. In the coming
weeks, he will need to go to the Planning Unit to say that the County Council
supports or doesn't support approval of these final documents. The technical teams
have provided their comments to USU. He asked if the Council wants to approve
them or send guidance to the Planning Unit.
Nelson suggested that staff provide a summary of each section, and then
Council can ask questions.
John Sproul, Program Specialist - Watershed, stated there are about 20 to
30 different tasks for phase II.
Nelson stated there are five different sections. Sproul stated there are four
tasks, all related to surface water quantity. For the entire WRIA project, there are
six categories. Water quantity is one category. Each category is on one compact
disc (CD).
Crawford stated the Planning Unit meets monthly. If the councilmembers
want to learn this, they should go to observe the Planning Unit meetings. He
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doesn't want to sit through a presentation on this. He has a lot of confidence in the
players who are on the Planning Unit. They include everyone from Carl Weimer and
Marion Biddell to Pat Jones. There is a diverse group of people who are all moving
forward by consensus.
Brenner stated she would rather have the Planning Unit give direction to the
Council. She is comfortable with what the Planning Unit can unanimously agree on.
If there is something that everyone on the Planning Unit doesn't agree on, she
would like to know about and discuss.
Nelson stated the County is part of the Planning Unit. That doesn't mean
they make the decisions for the Planning Unit. If the Planning Unit makes a
preliminary decision, the County will have no voice at the Planning Unit.
Brenner stated it's misleading to the Planning Unit if the Council makes an
opinion. The Council as a whole does not have enough of an understanding to do
that.
Crawford stated the big difference between the County Council and the other
Planning Unit members is that the Council controls the money.
Fleetwood stated he doesn't understand where staff needs direction from the
Council, versus where the Council delegates decisions to the staff. Roll stated that
any time there is a decision in this process, he has to come to the Council and
request its position so he can cast a vote on behalf of the Council at the Planning
Unit meeting. There are a series of reports that are coming to the table that are to
be stamped as final documents. He needs to go to that table and say that the
County does or does not support the documents as final documents.
Nelson asked how the Planning Unit is going to make a decision on the final
documents. Roll stated it would happen over a few meetings. The phase II
documents will be available next week.
Nelson asked how the Planning Unit will decide which elements of phase II to
accept. Roll stated the members would have read the documents and participated
in the process.
Sproul stated the Planning Unit has members on the technical teams. The
technical teams make recommendations to the Planning Unit to approve or not
approve the document as it goes forward. The technical team is a mechanism to
have the nuts and bolts of the document looked over. Each technical team will
meet to look at specific elements.
Crawford stated that because the County has the role of providing the
money, it is very important for the Council to get a report from Dr. Roll on the fiscal
impacts of the various decision options. That is where they need a lot of feedback.
He wants to know how and where they are spending the money.
Water Resources Work Session, 2/19/2002, Page 15
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1
2 Nelson stated there will be overall constituent concerns, fiscal and otherwise,
3 that Dr. Roll needs to present to the Council. Dr. Roll may need to be prepared to
4 deal with those concerns with a quick overview and to warn the councilmembers to
5 look at that information.
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7 Brenner stated she doesn't want to be given this stuff unless she is supposed
8 to understand it. It would be better for the Council to give its approval on the
9 general direction.
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11 Sproul stated the technical teams make a recommendation to the Planning
12 Unit. Along with that recommendation, there is a synopsis of the deliverables and
13 products. The technical team has representatives of the Planning Unit, so there is
14 an element of the constituency that is involved. Staff can bring the
15 recommendation of the technical team to the Council, as well as a synopsis of that
16 deliverable. It will be in sequence, prior to the Planning Unit meeting, so they can
17 meet the timeline. Instead of getting the full documentation, the Council would get
18 recommendations from the technical team and a synopsis.
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20 Crawford asked what they are doing this for. Roll stated the overall goal of
21 the watershed management process is to make sure there are adequate resources
22 for fisheries, water quantity and water quality throughout the WRIA to sustain and
23 grow, inclusive of things such as salmon fisheries, agricultural uses, and a
24 multitude of other uses tied into a resource that has to be coordinated and
25 managed in a way that they don't irreversibly damage the resource.
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27 Crawford asked if Dr. Roll, their water resources manager, is satisfied that
28 the Planning Unit has done a good job of moving this to where they need to be.
29 Roll stated he is very proud of the progress that this group has made. As an
30 example, there are few WRIA's that have gone this far with 18 different caucuses
31 all giving consensus. The frequency with which they are going to need to make
32 decisions will be a lot faster.
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34 With the phase II scope of work, he's hearing that the Council is willing to
35 hear from the synopsis of the technical team recommendations, and from that the
36 Council will be able to provide guidance to vote one way or another.
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38 Monsen stated staff will ask for Council's formal blessing for staff to
39 represent the County at the table. If any staff member has a particular concern, he
40 or she will bring it up on behalf of the Council. The County plays a role that can get
41 confusing. One role is as a single entity at the table, trying to learn the particular
42 issues. At the same time, the County also somewhat represents the Planning Unit
43 as a whole once it is carried through the process. Don't confuse that role with their
44 future role of adopting the plan. The Council is not adopting the plan as a part of
45 the Planning Unit work. There will be a plan adoption process in the future that
46 deals with the policy elements. Once the science is more refined, the policy
47 questions will get harder.
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Brenner asked when the Council is going to hear about the controversies in
the Planning Unit. Roll stated there are summaries created after every meeting.
He will forward those summaries on to the Council.
Phase III involves the technical work, writing the plan, the environmental
impact statement (EIS), and the socioeconomic pieces of the plan. The scope of
work for USU is to do the final technical studies portion of the plan. That is the
creation of the decision support system (DSS). They also have a scope of work for
the actual plan. The goal is to seek approval at the Planning Unit for these two
scopes of work at the next Planning Unit meeting.
As the scope is developed, costs change. They are at the point where they
have a final cost of the scope of work. There is a more significant debt than what
they saw last month in terms of the available fund balance. The $500,000 shortfall
has escalated. He anticipated that, as they move into the later stages this year, he
would look for a loan from the flood fund to take care of this shortfall. The
Parametrix scope is $300,000 to $400,000 more than he anticipated.
Brenner asked why they have to do a loan. It has to do with flood
mitigation. She asked why they couldn't decide to take a certain portion of the
money from the flood fee. Monsen stated the Council could decide that. Last
summer, the Council decided to use more than previously allocated from the flood
fee for this project, but it must be paid back.
Brenner asked from where they would pay it back. Monsen stated it is the
difference between money going into the water resource fund versus the amount of
money being set aside for the WRIA project. A zero balance at the end of the
project presumes that it is not implemented. That is another project.
Implementation is not part of this plan yet. They will still need money to
implement it. It influences the pace of implementation.
Roll stated they are looking at a $900,000 deficit at this point, instead of a
$500,000 deficit. This means dipping into the reserve even more.
Crawford stated they need a long -term projection of the overall cost and how
to bring the balance to zero. Monsen stated the cost of the original concept was
about $12 million. This doesn't come anywhere close to that kind of dollar amount.
One significant difference is to not study everything in detail. Be selective in what
they study so they can apply that knowledge to better decision - making over time.
Part of the motivation to not spend that kind of money was having a total dollar
limit. He is telling the Council that this project will be bigger than they originally
thought, and is asking how important that dollar limit is.
Brenner asked if there is a third party who checks to see if they are spending
the money in the most efficient way.
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Nelson stated that is what the Council is for.
Brenner stated the Council doesn't receive information on cost alternatives.
The Finance Committee gets that information on budget items, but they are not
getting it here. Monsen stated people look at whether they are spending the funds
legally. This process is not designed to be the most efficient because they have lots
of people who are directly involved in decision - making. A decision is not based on
the cheapest alternative.
Brenner stated an efficiency audit is not based solely on the cheapest
alternative. She is concerned that they get what they want. Monsen stated the
Planning Unit members don't necessarily want the same result. If they have the
same goal in mind, they can be very, very efficient.
Caskey- Schreiber asked what kind of reserves are available to borrow
against, and whether that would jeopardize the County's ability to handle a flood.
Monsen stated there is no financial problem in the short term. It more likely
influences the pace of implementation on the flood and water resources side of
these kinds of projects.
Nelson asked if there are adequate reserves in case of the major event.
Monsen stated there are.
Crawford stated that in the case of a major event, the Federal Emergency
Management Agency (FEMA) steps in, and $12 million is nothing. It is a pittance
compared to the hundreds of millions of dollars that a major event can cost. He
asked what kind of reserves the County has. Monsen stated there is $5 million set
aside for emergency response. It is adequate to deal with most everything that
they would come across. Either it's a small enough event that they can cover local
costs, or it is a big enough event to cover local costs until they get FEMA money.
Caskey- Schreiber stated they can't pull the rug out of the process in the
eleventh hour. They have to see this through. The only way to do that is to
implement it. She is in favor of working out a half grant /half loan situation.
Brenner asked if the Planning Unit considers costs. Roll stated they do.
They asked him what the County is going to do about these scopes of work that
have become more expensive. They've asked for assurances that the project will
continue. There are accompanying budgets with all work. Certain caucuses
scrutinize those budgets pretty well. All the budgets go forward with the scopes of
work.
Brenner stated she wanted to hear from the Planning Unit about their
comfort level on costs. She is not comfortable just moving ahead, without knowing
what they are spending and where they are going. This is very different than what
they thought it would be.
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Crawford stated the reason the Planning Unit members are members is
because resolving water issues in Whatcom County is the biggest priority of their
associations. It's unlikely that they will say that spending is getting out of control.
Brenner stated the diversity of groups would be able to provide some
suggestions.
Crawford stated the Council struggled with caucus funding last year. He
asked if that was resolved, or if the Council would deal with it again this year. Roll
stated it is in the budget. He put money in the Water Resources Division budget for
caucus support for this year, at the same level as last year.
Crawford asked how the caucuses are feeling about that. Roll stated they
are getting more people who are actively using it, because there are products that
the caucuses want to provide to their constituencies. It's been a good success.
Nelson asked if the Council wants to continue with what the Planning Unit is
doing, or to limit the expenditures that would affect the scope of work.
(Clerk's Note: End of tape two, side A.)
Crawford moved to continue with the projected budget as well as the
Parametrix and USU scope of work increases, and have staff present a more
encompassing projection next month on how this affects the flood fee overall, as
well as specific program budgets.
Brenner asked for a friendly amendment that they would reevaluate it more
closely if it gets over ten percent.
Crawford stated he wouldn't accept the friendly amendment. He wants to
see the actual numbers. He doesn't want to put a percentage on it now. Part of his
motion is to have them come back with the long -term fiscal impacts. He is satisfied
with his original motion.
Motion carried 6 -0 -1 with Brenner abstaining for lack of information.
Roll stated there are two scopes of work, Parametrix and USU. He needs
Council guidance to go to the Planning Unit to vote on those scopes. He would
discuss them with the Council at the Natural Resource Committee next Tuesday.
Plan Development Consultant
Roll stated the County is facilitating a process, and is getting to critical
junctures in the planning process where the County will need to consider positions
in the context of how data is utilized and how they are going to manage the
resource once they begin developing the plan. With that, he requests that they
meet with the Council next week in executive session to discuss some of the legal
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implications of this work. The pieces have an influence on how the County may
want to proceed.
Dan Gibson, Senior Civil Deputy Prosecutor, stated that in addition to the
WRIA process, there is litigation occurring on the reservation pertaining to water
use and water rights. The on- reservation adjudication is happening at District
Court. There are relationships between the legal process of adjudication and the
WRIA process. The Council must be aware of the connections as it considers the
County role in the adjudication. They've also got the USU work, which is a data
collection process that is moving into policy formation, based on that data.
Different parties have different interests in the speed of data collection and the way
it is shaped up. Have somewhat of an understanding of that as they decide how
they are going to spend money.
Crawford asked what the different interests are. Gibson stated that,
depending on the interest in the outcome of the water issue, it shapes the way they
approach data collection.
Monsen stated they clearly tried to place financial limitations so the project
doesn't have an open checkbook. That means that the collective needs to focus on
their priorities that help them deal with the bigger picture over time.
Brenner asked if all of these topics are appropriate for executive session.
Gibson stated it depends on whether they are talking about potential litigation or if
he is simply conveying information as an attorney and if the Council is interacting
with the information to form policy. There is not a clear line about whether some of
this is executive session information. That is something they will have to feel their
way through.
Nelson stated they have to depend on their attorney to give the Council
advice as they discuss these issues.
Gibson stated there is an upcoming symposium on ecological flow regime,
which is the amount of water that a river system requires. As the County
participates in that discussion, it is important to think about the County's interest as
it pertains to water. The County has a role as a facilitator. As a facilitator, the
County is transparent in terms of its interests. The County also has a political
interest because it serves a variety of constituencies. That puts the County in a
different position in terms of putting all of its cards on the table. As they get into a
negotiating role, policy formation is held a little closer to the vest. It is important
for the County to define its interests in terms of its constituencies so it can have a
coherent approach and so the County knows when to act as a facilitator and when
to act as a broker of interests.
Some parties in the process are significantly clear about their interests. Their
constituency is better defined. The general purpose jurisdictions have a notoriously
difficult time defining their interests.
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Nelson asked if it would be easier if the County stepped out of its role as
facilitator. Gibson stated that would be a good item for discussion.
Brenner asked if the Council can be in executive session when it has
discussions in its role as broker. There are laws about public meetings. Gibson
stated it is difficult for him to answer that question in the abstract. There are
points when they assume an interest and strategize about how to best achieve that
interest, especially because they are always looking at a basin -wide adjudication.
The goal of the WRIA planning process is to achieve a plan for water
allocation and use in the basin for some time into the future. Typically, the DOE
writes rules that do that. The DOE, as the agency of the State that oversees water
use, controls all of those players who are subject to its jurisdiction. There is at
least one player, the Lummi Nation, that does not operate the same way. The
question is how such a plan would achieve an enforceable status. In all likelihood,
that would be through adjudication. The question is how friendly that adjudication
is going to be. The success of the process depends on getting as far as possible to
the goal in a mutually beneficial relationship. In all likelihood, implementation of a
plan that includes the Tribe will be an adjudicative study in the future.
3. WATER POLICY
Whatcom County Pilot Project
Tom Anderson, Public Utility District 1 Manager, stated it's important to
realize that ultimately they have to manage the water in the basin. There is the
water that is available naturally, and there is allocated use. In an ideal world, it
would be a held water right and a system of enforcement and tracking of those
rights. They would know what was available for new uses.
There are two problems. One problem is that they don't really know what this
is, because they haven't done that. That is what USU is doing for them. They are
doing the science and modeling, and giving the County tools to use to determine
what is naturally available, where it's available, and when it's available.
There is a bigger problem. The State has a statute that requires water rights.
Those statutes have not been adequately enforced or tracked for about 30 years.
They have a lot of illegal uses and uses that aren't under the allocated system.
There is no enforcement. People don't know what the rules are. There is no way to
figure out what is available. That is a problem. If someone wants to build a new
industry or something that requires water, they have to come up with a water right
to do that. It is a visible public process.
They've taken some actions locally to change this problem. One of the things
they did was to create a Conservancy Board. That was a significant step in the
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right direction. The watershed planning process has taken on the task of
investigating what is allocated. That process is ongoing. Ultimately, this has to be
sorted out so they know what is used, what is allocated, and how it's being used so
they can determine what is available.
The other significant piece is that, in the process of doing this, one of the uses
is instream flow. They currently have instream flow that was sent by DOE in 1996.
They also have the tribal issue. The tribes indicated that they are willing to
quantify some of their rights. The tribes have said that what is available naturally,
minus the tribes' senior rights, is what is available for other uses. This is the tribes'
position. They are willing to take a legal position to prove this. Not everyone
agrees with that position. It is a negotiated position that they all must recognize.
This will be a policy discussion at the symposium in May.
Last year, the State legislature and Governor made some commitments to
water utilities in the State of Washington to resolve some of these issues. They
formed a group called the Joint Executive /Legislative Water Policy Group. He
presented an idea to that group and the associations of water utilities and public
utility districts in the state. All of those groups liked the idea in his concept, and
suggested that it become a pilot program in Whatcom County.
He's presented a draft of the idea. He distributed the idea in December, and
received comments on it locally from a variety of interests. One of the players he
wants to interact with includes the tribes. The Nooksack Tribe deferred to the
Lummi Nation. He was able to get a couple of meetings with Lummi Nation
members, who were not willing to support the proposal as a legislative direction.
That disappointed him. They need to sort this out, which will require changes in
legislation.
Nelson asked if the reason the tribes don't want to participate is because the
tribes believe that all they have to do is to identify their own rights. Anderson
stated that is part of the reason. They prefer not to be a part of this problem.
Also, the Tribe was concerned about the level of animosity that his proposal would
potentially bring up.
Nelson asked if that puts them back to the Nooksack Steering process again.
Anderson stated it does.
Nelson asked if it was the Tribe that really wanted to pull back from that
process. He asked where the Tribe wants to be. Anderson stated he couldn't speak
for the Tribe.
Brenner stated the proposal looks good. She asked if it has gone to the
Planning Unit. Anderson stated it has. No one said they didn't support it, although
no one has been asked to come out and support it. The people involved in the
Planning Unit have had a couple of years of education. They're well aware of what
it will take to unravel this mess. Most of them have said they have to do it. The
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ones who aren't going to support it are the people who aren't involved in the
process.
Fleetwood asked if the resolution of the Tribe's senior water right will be
established through the present litigation, and when that litigation would be
complete. Anderson stated the answer is no. The trial date is April 14, 2003. That
litigation will not establish the Tribe's position at all. A negotiation will establish the
Tribe's position. Part of the watershed planning process outcome will be a high
level negotiation that will ultimately lead to some kind of court action for
implementation.
Fleetwood asked if the present litigation has nothing to do with the senior
water rights. Anderson stated they should have that discussion in executive
session.
Roy asked if a negotiation is part of the WRIA process. Gibson stated it is
not.
Roy asked if the end product they would like to have before implementation is
a negotiated agreement. Anderson stated it isn't before implementation. That
negotiation will be a part of implementation. It's not likely that they will come to a
resolution before they write a plan. Part of the plan will be how they negotiate that
resolution.
Brenner asked what Mr. Anderson wants from the Council. Anderson stated it
will not become local legislation because of the Tribe's response and because they
are running out of time.
McShane asked if the State Attorney General has offered an opinion on this.
Anderson stated it is the tribes who are not moving forward. The State legislature
is in a tizzy about water.
McShane asked if the legislature was advised to back off because of the tribal
issue. Anderson stated he didn't know. The tribes are very supportive of
significant portions of his proposal. They aren't totally against it. This proposal will
be put forward to and talked about by the Planning Unit as a management option
over the next year. His goal is to have significant discussions in the next few
months, and to begin to look at next year's legislative question.
ADJOURN
The meeting adjourned at 1:10 p.m.
Jill Nixon, Minutes Transcription
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DISCLAIMER: This document contains the Whatcom County Council or Committee
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These minutes were approved by Council on March 26 , 2002.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
L. Ward Nelson, Council Chair
Water Resources Work Session, 2/19/2002, Page 24