HomeMy WebLinkAboutPublic Works December 11 20011
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WHATCOM COUNTY COUNCIL
Public Works and Capital Projects Committee
December 11, 2001
The meeting was called to order at 1:37 p.m. by Committee Chair Barbara
Brenner in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Marlene Dawson
Dan McShane
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. DISCUSSION REGARDING THE LAND OCCUPIED BY THE GOOSEBERRY
POINT FERRY DOCK (AB2001 -437)
Jeff Monsen, Public Works Director, stated he could describe the basis of the
lease agreement under the premise that the lease agreement is valid.
Brenner stated she just wants to find out if the lease is or is not valid.
Dawson stated five properties were supposedly transferred to the Tribe as
part of a lease agreement with the former County Executive. Shirley Van Zanten
understood that the properties were transferred to the Tribe to settle a lease
agreement. She questioned whether the County can transfer part of a road system
without some kind of public hearing or Council action. She also asked why they
need a lease.
Brenner questioned whether there was Council action on this transfer. If
there was Council action, there would have to be paperwork on it.
Dan Gibson, Senior Civil Deputy Prosecutor, stated the County Executive
executed the lease agreement in 1988. He is not prepared to speak on whether or
not there was Council action.
Brenner asked if a county executive could unilaterally transfer public property
without Council action. She asked what the Executive did. Gibson stated that
regarding this property, the County Parks Board divested itself of ownership of a
particular property to the Tribe. The County Public Works Department is paying the
Parks Board for the property that was transferred to the Tribe. The exchange in
1988 was from the Parks Department to the Tribe, for which the Public Works pays
the Parks Department.
Brenner asked if the Parks Board could take government property away from
the County without Council action. If so, she asked whether the Parks Board can
give away any County property. Gibson stated they were not examining whether or
Public Works and Capital Projects Committee, 12/11/2001, Page 1
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not the Council or Executive should have done something with this property. He
did not second -guess the Executive in the exercise of that power.
Brenner stated she didn't know whether the County Executive could give
County property to the Tribe without Council approval. Gibson stated the
councilmembers have to think long and hard before asking that question.
Monsen stated the premise is that the lease is valid. The transaction was in
exchange for any interest the County didn't already hold, according to the map he
handed to the councilmembers. That entire area is described in the lease. There
are areas that the County had an easement right to prior to the lease agreement.
The lease agreement can be described as a gross area, and the County acquired
lease right to anything it didn't already hold for 25 years. The compensation for
that right was the transfer of a single piece of property that was held by the Parks
Board and transferred to the Tribe. There was a single payment to the Tribe for
that 25 -year lease in the transfer of that property. Any financial transaction, since
the execution of the agreement to transfer that property, is the transfer of funds
between the Road fund and general fund to make the transaction whole. Under
that scenario, if indeed the agreement is invalid, then what the County asked for,
which is the right to use that space, is happening. If the County asks the question
of whether it is invalid, the question is whether the County must abandon the use
of the property in the meantime.
Brenner asked if this land transfer is valid.
Dawson asked what part of the land the County didn't own. Monsen stated
there are some portions within the area that the County did not have control over.
It is not the County's position that they absolutely control the tidelands. The
interest that the County holds in this area is as an easement or a lease. The
County does not now and never has owned any fee simple land there. A road right -
of -way is an easement. The County does not own the land underneath it. The
County occupies the land through the right -of -way easement, transportation special
dedication for easement purposes, and anything else that the lease would cover.
The easement did not go away.
Dawson asked why the County would pay for an easement.
Brenner asked if it is an easement or lease. Monsen stated there is an
easement and right -of -way that would cover a good part of the area, but not the
entire area. He indicated the lease area on a map. The lease describes an area
that includes the tideland area. The Council had historical easement of some of the
area through a separate transaction or an old right -of -way. It does not include the
entire area on the map. The County does not have control of the tidelands, no
matter who says they do.
Crawford asked if there could be repercussions by the tidelands becoming an
issue, if the County tried to assert its right to an easement that it had historically
and stopped payment on a lease that was not executed properly by the County
Public Works and Capital Projects Committee, 12/11/2001, Page 2
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Council. Monsen stated the County has made 100 percent payment to the Tribe
already. There are no more payments to the Tribe for the lease.
Dawson stated there is a renewal. Monsen stated there is no money to stop
payment other than the money from the Road fund to the general fund. The
County knows that it does not control all of the area that it occupies and uses. If
they are to say today that the lease is invalid, he did not know what the County
could or could not use.
Dawson asked why anyone would lease part of the road system when they
can go to the Department of Interior and demand that they have this road access,
because it is in the treaty. Monsen stated it is common because of discrepancies
between where the road is located and where they may have a legal description.
Documents clarify what the right is today without having to resolve all the facts of
the past. He would take the legal description as saying that the County will lease
the area, and the compensation is for those interests the County does not
adequately hold. It does not grant or give up any of the other rights. It clearly
says that, to use the entire space, the County will pay for and gain interest that
they already have.
Dawson stated the County doesn't need to lease. Monsen stated the best
interpretation of the compensation is for those areas not shaded on the map.
Brenner stated there are spots that the County doesn't own or control.
Monsen agreed. Whether or not the County still holds a valid interest in any of the
old easements can come up for debate.
Gibson stated the County received whatever interest it has by quitclaim.
That is not a guarantee of ownership by the party who quitclaims to the County. It
is not a warranty deed. It is a quitclaim deed. The Tribe gives the County an
easement to the extent of whatever right they have.
Dawson asked if there is a direction to take to resolve the issue. They need
to sit down and talk about how to firm up this road easement so the County has a
clear title, and isn't held hostage at a future date.
Gibson stated Councilmember Dawson's suggestion is to obtain a permanent
form of ownership as opposed to a leasehold.
Brenner asked if that is possible. Gibson stated municipalities do have the
power of eminent domain, but there are pros and cons to that.
Hoag stated the County could have other options. Gibson stated the County
could outright purchase portions that are alienable. There is a question about
whether or not the tidelands, which are reserved to the Tribe in trust, are alienable.
The County's position is that the tidelands are held in trust for the Tribe by the U.S.
Government.
Public Works and Capital Projects Committee, 12/11/2001, Page 3
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Brenner asked if it is correct that even if the County took back what it
shouldn't have given, it wouldn't be able to go to Lummi Island because they would
have to cross the tidelands, which belong to someone else. Gibson stated that is
correct. If the County is going to cross someone else's property, it must obtain
permission either by a lease or the exercise of eminent domain.
Brenner asked if the County can do eminent domain on a jurisdiction that is
totally independent. Gibson stated yes. In the case of the lands that are reserved
to the Tribe, they are not going to get a full fee ownership of those lands. At best,
they will get an easement.
Crawford asked if it is correct that the County can take one of two paths.
The County can do a legal review of its rights in terms of easements, eminent
domain, and that kind of thing, with the conclusion that it will end up in litigation.
Or, the County can negotiate a simple renewal of a lease. He questioned whether
that is a fair characterization of the situation. Gibson stated it is.
Hoag questioned whether the County could pay a higher price to lease in
perpetuity, or purchase an easement without having to use eminent domain.
Gibson stated a lease of an entire interest in perpetuity is the same thing as a
purchase. One can lease portions of interests in perpetuity. A lease of a full
interest for all time is ownership.
Hoag asked if a lease of the tidelands is a partial interest. Gibson stated a
lease of tidelands for the purpose of roads would be a lease of a severable interest
in the property.
Hoag asked if they could do that lease in perpetuity. Gibson stated one can
purchase an easement for perpetuity.
Dawson stated the treaty makes it clear that road easements are to be
available to counties and states.
She moved for County staff to work with the Department of Interior to
achieve a clear easement for the ferry system. She asked Mr. DeSpain to clarify
how the Parks and Recreation Department got involved, and whether this was a
directive.
Also, ownership of submerged lands requires that the land be part of the land
survey of a Tribe. It was made clear that the lands were not part of the land
survey. The Indian claims settlement never addressed the tidelands as being in the
land survey. There is no clear congressional intent. There was an executive order,
which doesn't cut it. Gibson stated the fact that the survey did not include the
tidelands cannot prejudice the rights of the Indians. Court cases have determined
that the tidelands belong to the Tribe.
Dawson stated that was a district court case. In June, the U.S. Supreme
Court stated there has to be clear congressional intent and that it be part of the
Public Works and Capital Projects Committee, 12/11/2001, Page 4
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land survey. Gibson quoted U.S. v. Stotts, which says there must be clear intent,
and the reservation of the tideland was made plain by definite declaration in
extending it to low tide.
Dawson stated it is a boundary. A boundary and land survey are two
different things.
Roger DeSpain, Parks and Recreation Department Director, stated the Parks
Board at that time did not have the power to relinquish land. It was a directive that
was part of the ferry lease arrangement. It was a directive of the County Executive
at that time.
Brenner stated the County Executive cannot act unilaterally on things that
require County Council approval. She asked where the paperwork is that shows
there was any County Council involvement. DeSpain stated he does not have those
records.
Brenner stated that her bigger concern is what the County does to protect
the Lummi Island residents if the Lummi Nation decides to charge the County a lot
of money to go back and forth from the island. Gibson stated that protection was
included in the lease of 1988, and included a procedure of arbitration by a third
party if the two parties were unable to reach a satisfactory agreement on price.
Brenner asked if it is binding arbitration. Gibson stated it is.
Dawson stated the lease that requires binding arbitration is null and void
because the Department of Interior was not a party to it. The County can't
quitclaim things to the U.S. Government in trust for a tribe because it has to be
reviewed. The five parcels of property are not in the name of the Tribe according to
the Portland Office of the BIA. She assumed that the County still has control over
those lands legally.
Crawford stated the County has the power to subpoena the former Executive
to get a clear answer on what happened.
Desler stated that the County government at the time was still in its infancy.
The extent to which they used signature formats that they do today, the procedures
may not have been in effect. However, it doesn't mean that the Council did not
approve the lease.
Crawford stated he looked up that information for 1988. The County
Executive simply gave a report to the County Council that she, the Executive, had
entered into the agreement. There was no record on the minutes of any Council
discussion. The Executive simply reported it.
Brenner stated there needs to be an investigation of this. If there is no
record of Council involvement, it isn't fair to say that they can't find the records.
Either the records exist or there was no Council involvement.
Public Works and Capital Projects Committee, 12/11/2001, Page 5
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Desler stated the question is whether it is still a legally binding thing if the
Executive did it without Council approval.
Brenner asked if there is a binding lease without the signature of the
Department of Interior. Gibson stated the County entered into the agreement in
1988, and has received the benefit of that agreement. The agreement contains a
provision for binding arbitration.
Brenner stated they can go through a binding arbitration if the other party
wants to charge an exorbitant amount. If Councilmember Dawson is correct, then
the binding arbitration is not binding. The other party can take the County to court
after it doesn't get what it wants. They may go to court because the Secretary of
Interior did not sign off on it.
Dawson stated leases of trust land are null and void without Department of
Interior authorization. It is a federal statute. She received a letter from a tribal
solicitor that verifies the same thing, and who says that services to tribal land have
to have the Department of Interior signature, or be null and void.
Brenner stated her concern is that if they don't have a legally binding
arbitration, they could end up going through a process to go to court to find out
they never had binding arbitration option. She didn't want to get to that point.
(Clerk's Note: McShane arrived 2 :12 p.m.)
Gibson stated it's fair to say that they should either have that matter settled
prior to the year 2010, through the execution of a new lease, or obtain the property
by some other fashion. Go into executive session to decide whether or not they
want to declare a lease, for which they have been getting the benefit, null and void.
Dawson restated her motion to achieve a clear easement for the ferry road
system.
Brenner asked why they would not want to investigate. Gibson stated that
by the year 2010, the County needs to have entered into an extension of an
agreement or a new agreement that provides the County with continued permission
to use the tidelands. At this point, the Tribe is not calling into question the
permission for the County to cross the tidelands for the purpose of ferry traffic.
The focus needs to be on the continued use of the ferry dock area for traffic
purposes. Currently, the other party to the lease is not calling it into question.
That party is proceeding with the assumption that the permission granted is valid.
He is puzzled at why they would call that into question.
Dawson stated people on Lummi Island have questioned how the County can
make a long -term transportation plan when this thing will come up in less than ten
years. Gibson stated this matter should be resolved by 2010, when the lease
expires.
Public Works and Capital Projects Committee, 12/11/2001, Page 6
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Hoag questioned whether the land by the Stommish grounds, which the
County gave for consideration of the lease, was given for perpetuity or only for 20
years when the lease came up for renewal.
Crawford stated it was a transfer of property, not a lease.
Dawson restated her motion for staff to work with Department of Interior to
achieve a clear easement for the ferry road system.
Brenner asked if they need to have that discussion in executive session.
Gibson stated it would be wise to discuss whether or not they are going to declare
the lease null and void.
Dawson withdrew her motion pending receipt of new information.
2. ORDINANCE AMENDING CHAPTER 24 OF THE WHATCOM COUNTY
CODE TO INCLUDE MINIMUM REQUIREMENTS FOR AN ADEQUATE
WATER SUPPLY AND MINIMUM REQUIREMENTS FOR THE SELLER TO
PROVIDE INFORMATION TO THE BUYER CONCERNING THE WATER
SOURCE WHEN SELLING DEVELOPED PROPERTY (AB2001 -369)
Paul Chudek, Environmental Health Supervisor, stated that in 1999, a drinking
water subcommittee was formed to see if it is necessary to have a drinking water
ordinance for Whatcom County. It has worked its way through the process. There
are three issues. One issue is to codify the interim guidelines for approving water
availability for building permits. Another issue has to do with water requirements
for platting. There are specific requirements for disclosure at the time of the real
estate transaction. It also adopts by reference group B rules that would be
enforced locally through a joint plan of operation that they already have in place
with the State Department of Health.
The Board of Health has seen a similar document on two previous occasions.
The Board of Health directed staff to seek a State Environmental Protection Act
(SEPA) evaluation, which it did. There was a declaration of non - significance and a
public hearing two weeks ago.
McShane moved to recommend approval.
Brenner spoke regarding definition number ten and suggested adding
language, "...when the applicant owns all property within the sanitary control area."
Otherwise, there is no difference between a declaration of covenant and a
restrictive covenant. Chudek stated the difference is that, in some instances, the
individual does not own all 100 feet, and they can't get a restrictive covenant from
the neighbor. They don't own all of the area within the 100 -foot sanitary control
zone. The best the County can do is require a declaration of covenant, which does
not include all 100 feet. It only has 80 feet on one side.
Public Works and Capital Projects Committee, 12/11/2001, Page 7
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Brenner asked how that is different from a restrictive covenant. Chudek
stated a neighbor has to sign a restrictive covenant. The neighbor doesn't have to
sign this. The property owner signs it and agrees that he or she won't undertake
certain activities within the sanitary control zone.
Brenner questioned Council packet page 362, section (5)(c).
Regina Delahunt, Interim Health and Human Services Director, stated
Councilmember Brenner had questioned the origin of the 1/2 -acre designation. It
comes directly out of the State law.
Brenner stated some people have more than 1/2 acre where they use a hose
to water shrubs and landscape plants. She was concerned that the County doesn't
explain this. If someone has property that is over 1/2 acre, he or she could
conceivably be accused of needing a water right to do their gardening.
McShane stated it is an existing State law.
(Clerk's Note: End of tape one, side A.)
Brenner suggested creating a definition of what "irrigation" means. One
woman who is a master gardener has five acres with different landscaping
everywhere. The woman uses a combination of drip irrigation and hoses. Someone
could conceivably say that this person irrigates more than 1/2 acre. It is not
regular irrigation. Delahunt stated the rationale behind the irrigation of 1/2 acre is
because they want to make sure that a person is not using more than the allowed
5,000 gallons per day. That is an estimate of what would be used if irrigating 1/2
acre.
Brenner stated some people do mitigation and enhancement that is not
ongoing, but just during the planting time. She is concerned that they would have
to get a water right. That is not the intent. She asked how to fix it. Delahunt
stated the Council could eliminate section (5)(c) from the local code. It does not
change State law.
Brenner stated it would require the State, not the County, to explain what
they mean. Delahunt stated that when people request approval for water
availability, the Health Department has to make sure that they don't need a water
right. This is one of the questions they are asked.
Brenner stated the 5,000 - gallon limit is already covered. She is concerned
about someone misusing this section.
McShane stated it is important that it is in local code. If someone is trying to
figure out whether or not they want to invest in a property or build, he or she
needs to think about those legal issues. Those things come up. The person needs
to recognize that they need a water right if they want to irrigate more than 1/2
acre. That could be, in some places, a significant issue. Someone might recognize
Public Works and Capital Projects Committee, 12/11/2001, Page 8
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that the person is out of compliance and using more water than they have a right to
use. The water belongs to the citizens of the State of Washington. It is important
that the language be left in the code because people don't go to the State
regulatory requirements. The County people need to think about these things.
Brenner stated the gardener she knows would be illegal, according to section
(5)(c). Chudek stated they don't know that she is illegal. Someone would have a
difficult time proving that the gardener is irrigating all five acres of a five -acre
parcel. When this was originally written, it was about people who are using the
sprinkler irrigation continuously.
Brenner stated she agreed, but that is not what the language says. She
moved to insert language in section (5)(c), "Irrigating more than Y2 acre of lawn or
noncommercial garden when it is evident to the department that more than 5,000
gallons per day may be used." There has to be something that gives the Health
Department the authority to make a determination on whether or not someone is
using more than 5,000 gallons when it relates to irrigation.
Hoag asked the interface between the State regulation and this section.
Delahunt stated the County has to ensure that a person has water rights if they are
going to build.
Brenner stated the 5,000 gallons is supposed to serve the house and the
irrigation. An average house uses 900 gallons per day. That leaves 4,100 gallons
for irrigation.
McShane stated the motion passes the interpretation on to the local County
Health Department, versus the interpretation that is up to the State. That is a
mistake.
Dawson questioned whether there would be a problem with the State.
Delahunt stated the change passes the interpretation on to the local Health
Department. Another option would be to tell people to go ask the State
Department of Ecology whether or not they need a water right. The County can
deny it and tell people to go ask for a water right.
Brenner stated the County could still do that. At the local level, the County
will not get involved unless it believes more than 5,000 gallons per day are being
used.
Dawson stated the neighbor could go complain to the Department of Ecology.
McShane stated the entire purpose of this is that people shouldn't be
irrigating that much land unless they've got a right to do so. The reason the State
law is written that way is so people will think about how much water they are using.
It has an impact to other water users in the area. Irrigating happens at the most
critical time in the year, the summer, and can dry up a neighbor's well. That is the
reason the language is written the way it is.
Public Works and Capital Projects Committee, 12/11/2001, Page 9
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Brenner stated she understood Councilmember McShane. The problem is that
the State is unclear about what it means by "irrigation." It is not supposed to apply
to someone who is using 100 gallons to water their landscaping on a five -acre
parcel, for example.
Hoag asked staff to find out if the State defines "irrigation." Delahunt stated
she didn't believe there is a State definition for "irrigation."
Dawson questioned whether this has ever been an issue. Delahunt stated this
issue has never come up. This regulation has been in place since 1991. These are
the interim guidelines.
Chudek stated the County has a set of interim guidelines that have been in
place since 1991. They were modified in 1993. The interim guidelines have
addressed the issue of water availability and water rights since 1991. This is the
most discussion that they've had on the topic since 1991.
Brenner stated interim guidelines are not the same as an ordinance, and don't
have the same strength of law as an ordinance. Delahunt stated the department
has been implementing the guidelines as if they were an ordinance.
Brenner referenced Council packet page 365 and moved to amend section
(e)(v), "...AAA 200 feet." Make that change also in other locations that refer to
sewage and manure lagoons, including sections (f)(i)(A -B). She is not comfortable
with someone putting in a well within 100 feet of a sewage or manure lagoon.
Chudek stated there are two separate issues. One issue is trying to have a
200 -foot radius around a well. They don't necessarily need to have a 200 -foot
radius around a well. Section (e)(v) says that one can't put a well within 200 feet
of the manure lagoon. They want to be careful about not allowing any activities
whatsoever inside a 200 -foot radius of the well. Section (f) includes the short -plat
road and other things.
Brenner suggested amending sections (f)(i)(A -B), "...and the well is at least
I-AA 200 feet from the edge of an on -site sewage system...." A well should have to
be at least 200 feet from any sewage system or manure lagoon. Chudek stated all
other approved setback requirements from a well to an on -site sewage system
absorption field are already 100 feet. It is 200 feet from a spring.
Brenner stated the County can be stricter than the State.
Delahunt stated it can be reduced to 50 feet if there is clay.
Brenner restated her previous motion to insert language in section (5)(c),
"Irrigating more than Yz acre of lawn or noncommercial garden when it is evident to
the department that more than 5,000 gallons per day may be used."
Public Works and Capital Projects Committee, 12/11/2001, Page 10
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Motion carried 2 -1 with McShane opposed.
Delahunt stated the State on -site sewage rules have a 100 -foot setback from
a well. One issue with expanding it to 200 feet is that some lots would not have
room for a house, a septic system, and a well.
Brenner questioned whether there can be an exception to allow it as close as
50 feet.
Hoag stated she shares the concern about sewage and manure lagoons. She
suggested amending sections (f)(i)(A -B), "...and the well is at least 100 feet from
the edge of an on -site sewage system absorption field or at least 200 feet for a
sewage or manure lagoons...."
Brenner agreed with the suggestion.
Crawford questioned whether the State standard is 100 feet. Delahunt stated
it is.
Crawford questioned whether the State standard is based on science. He is
uncomfortable with saying 200 feet instead of 100 feet, because it seems arbitrary.
He asked how the State arrived at the standard. Delahunt stated she didn't know
that there is particularly good science behind it. It is a matter of comfort level.
Brenner asked why there is a setback of 200 feet for a spring, but not a well.
Chudek stated that, by definition, water for a spring runs across the top of the
ground at some point. They are simply asking for a greater zone of protection
around there, because they are not actually withdrawing any groundwater.
Delahunt stated that a well and an onsite sewage system have vertical
separation. The theory is that the treatment occurs in the soil.
McShane stated he would be comfortable changing section (e)(v) to 200 feet.
He is not totally confident in the scientific reports he's read regarding removal of
bacteria and viruses at a distance of 100 feet. It is remarkable how quickly the
ground removes it, but that is a big load. It is not as much of an issue in section
(f). In section (f)(i)(B), there is a clay impervious zone above the unconsolidated
layer. There is a clay layer and an aquifer underneath it. The aquifer is protected
by six feet of clay. No bacteria can make it through six feet of clay.
Brenner moved to amend section (e)(v) and any section where the setback
requirements are spelled out, 'Sewage or manure lagoon, 4-09 200 feet." Section
(f) stays the same.
Motion carried unanimously.
Brenner moved to amend section (g)(i) on Council packet page 366,
"...approved water yield test done at the driest time of the year. The applicant
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may...." Wells dry up due to the neighbor's well, because the neighbor's test was
done during the wet season. She's seen that happen.
Delahunt questioned whether section (g)(ii) resolves the concern.
Brenner stated she wanted to change section (g)(ii) so that the director shall
require the applicant to provide the results of a four -hour pump test conducted
during the dry season.
McShane stated he understands the concern. The Council tried to address it
when they talked about exempt wells, and possibly restricting their use. That is the
more appropriate location to do that, instead of under the drinking water ordinance.
A concern for the subdivision rules was eliminating subdivisions that have exempt
wells causing that sort of an impact. That is the place to do that. Some people
believe it is up to the State, but he disagrees with that legal interpretation.
Brenner stated that once someone already has a permit and is operating a
well, it is extremely difficult to prove whose fault it is.
McShane stated he agreed. However, it shouldn't be regulated in the drinking
water ordinance. It should be regulated in the subdivision rules. The subheadings
under section (g) address one of those concerns for the specific wells, and would in
part alleviate Councilmember Brenner's concern.
Brenner suggested changing sections (g)(ii -iii), "The Director try shall
require the applicant to provide the results of a four -hour pump test...." Chudek
stated section (iii) talks about how much water is in the casing. There are areas in
the county where one can pump hundreds of gallons per minute with only ten feet
of water in the casing. Inserting the word "shall" would require people to do stuff
that is absolutely not necessary.
Delahunt stated there could be times where they would want to do that.
Brenner agreed to leave the language in section (iii) as it is, because it is only
about the depth of the well. In section (ii), she would like to require it, because the
yield is less than one gallon per minute. Chudek questioned whether they still want
to require the landowner to wait for the dry season as they develop more
information that shows there are reliable sources that truly produce one gallon per
minute.
Brenner stated she wouldn't mind if it can be proved. Chudek stated the
language should then be left as "may."
Brenner asked where they would not require the results of a four -hour pump
test during the dry season, when a source yields less than one gallon per minute.
Chudek stated that right now they wouldn't. In the future, so they don't have to
change the language again, they should leave it as "may."
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Delahunt stated there could be an area where they know homes and wells
have been developed that consistently show that they can sustain that yield.
McShane stated it should be left as "may" in case someone puts in a well, for
example, in bedrock, and is dealing with just cracks in the bedrock. Water can't
move through those fractures very rapidly, so they are only going to get a gallon
per minute out. However, they can get a gallon per minute out forever. It is the
structure of the well, not the water source.
Brenner withdrew her motion.
Brenner moved to amend section (g)(i), "...less than 4 gallons per minutes.
Neighbors with existing wells within 300 feet of the proposed well will be notified
regarding test time, to determine if their own well is being negatively impacted."
There has to be something to protect people with existing wells. It would be up to
the applicant to prove that he or she notified the neighbors. Chudek stated it is a
right fine idea, but from a labor and management standpoint, he questioned how
they are going to ensure that this is happening.
Brenner stated they can take the applicant's word for it. A neighbor who
wasn't notified would not have signed off on it. It would be complaint driven.
Hoag stated that they could include a statement saying that applicants shall
be required to notify well owners within 300 feet of the time of the test. Leave it at
that. That way, most of the time it will happen. If it doesn't, people can complain
about it. At least it addresses the problem and doesn't put an onerous burden on
anyone.
Nelson stated that the applicant will either be able or not be able to drill an
exempt well. He questioned the point of this.
Brenner stated the point is that there are people in Whatcom County who
have had their well go dry because someone else got a permit and stuck in another
well. If an applicant drills a well and causes a neighbor's well to go dry, they
shouldn't get their permit.
Chudek stated one question is whether or not a four -hour pump test is going
to show whether a neighbor's well will go dry.
Delahunt stated she didn't know the answer to that. These requirements are
in place to make sure that the well being put on the property has sufficient water to
serve that residence. That is why they do the pump test. She was not sure that
the pump test is going to be sufficient to determine whether it would draw down
the neighbor's well that is 300 feet away.
McShane stated they would need a 24 -hour pump test for that kind of thing.
He appreciated Councilmember Brenner's concern. It is right on. However, this
isn't the ordinance to do it in.
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Brenner withdrew her motion.
McShane moved to hold in committee.
Motion carried unanimously.
OTHER BUSINESS
There was no other business.
ADJOURN
The meeting adjourned at 3:05 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Barbara Brenner, Committee Chair
Public Works and Capital Projects Committee, 12/11/2001, Page 14