HomeMy WebLinkAboutNatural Resources August 8 20001
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
August 8, 2000
The meeting was called to order at 9:30 a.m. by Committee Chair Dan
McShane in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present:
L. Ward Nelson
Connie Hoag
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. DISCUSSION REGARDING CONCERNS RAISED BY MEMBERS OF THE
WHATCOM COUNTY WATER CONSERVANCY BOARD (AB1999 -389B)
Dan Gibson, Senior Civil Deputy Prosecutor, stated The Whatcom
Conservancy Board exists under authority of RCW 90.80. The intent was to
facilitate and accelerate the processing of applications for water rights and water
right transfers. The legislation was written in such as way that the Whatcom
Conservancy Board constitutes a quasi - judicial or municipal entity. The legislation
says the counties and state would not be subject to suit for the actions of the
Conservancy Boards. It does not provide immunity to the Conservancy Boards
themselves. The people appointed to serve have raised the issue of what happens
if they get sued. Initially, there were conversations with one of the state risk pools
to see if liability could be obtained. Initially the response was encouraging. There
was a question of a $10,000 deductible. The County Executive was prepared to
assume that cost. However, for whatever reason, further consideration by the risk
pool indicated that they would not provide coverage. At that point, the County said
that there needs to be a legislative policy consideration of the issue. In the
meantime, the board members said they were willing to volunteer, but not face that
type of liability personally. That is where they are today.
Nelson questioned whether Whatcom County is the only county with a
Conservancy Board. Gibson stated it is not. The others that are operative are in
Eastern Washington. Apparently the concern about liability has not been prohibitive
for those members in other counties. They've proceeded in spite of that.
McShane asked if there was something that precipitated the Whatcom
Conservancy Board's level of concern. Gibson stated he speculated that they live in
a litigious setting. He didn't know.
Nelson stated the understanding is that the risk pool doesn't want to take on
the risk. There is not enough background for the risk pool to make a decision.
Gibson stated he indirectly conveyed his conviction to the risk pool that the
Whatcom Conservancy Board basically makes recommendations, and the final
decision lies with the state Department of Ecology (DOE). The recommending party
is likely to face little risk of liability. The risk pool didn't agree.
Natural Resources Committee, 8/8/2000, Page 1
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Nelson questioned whether the Whatcom Conservancy Board's decision are
not legally bound. Gibson stated their action could be translated into a binding
action by the DOE.
Nelson asked if that was the same as the planning groups that participated in
the Comprehensive Plan process, which eventually became a decision of the
County. Gibson stated difference is the difference between a quasi - judicial activity
versus a legislative activity. Legislators, by virtue of being legislators, have a
tremendous sweep of immunity. Advisory groups on the Comprehensive Plan are
advisory to the legislative process. Judicial officers also have immunity. The
question is how far down the food chain the judicial immunity goes.
Nelson stated this is a quasi - judicial entity. He questioned what is binding.
Gibson stated that if someone wanted to be litigious and felt they were wronged by
the process and the recommendation that flowed from that process, the question
would be whether they would have a cause of action against those that
administered the process. He believed it would be a stretch to pin the liability
there.
Randy Watts, Chief Civil Deputy Prosecutor, stated the county risk pool
coverage is for all boards and commissions to the County. That is not the case for
the Whatcom Conservancy Board.
Nelson stated the only way for the commission to exist is with the idea that
counties and agencies are not subject to suits. Gibson stated that was correct. The
County has been declared to be immune from suit.
Nelson stated the County formed the commission.
McShane questioned whether it was formed by the Council or if it was
already formed and then the Council approved it. Gibson stated the DOE finalized
its existence.
Nelson asked if there is blanket coverage through the DOE. Gibson stated
there is not.
Hoag stated it was formed on the basis of a petition brought to the County
Council. She questioned whether it makes a difference if it was formed on the
County Council's recommendation. Gibson stated no. The status of the entity is
defined in RCW 90.80. They are declared an independent municipal entity. This
problem needs a legislative fix. The legislature should make this doable.
Hoag asked if the County could extend its risk to cover the Whatcom
Conservancy Board. Gibson stated the County has that ability. In terms of the use
of County funds, the County can apply its backing to this entity. Whether or not
they want to do that is another question. The State Auditor is prepared to
recognize that this is an appropriate application of County funds. The Board can't
be covered under the risk pool. The County can assume the liability, funded out of
the general fund or another fund. The risk pool would not pick it up.
Hoag questioned whether the County could apply to the risk pool if the board
is sued and the County covers it. Gibson stated no. In terms of the way the
County structures its funding, it is limited to County entities.
Natural Resources Committee, 8/8/2000, Page 2
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McShane stated the question is whether the Council wants to provide the
coverage now. Gibson stated there are several things before the Council. These
three people are saying they won't serve. One option would be to replace the
individuals.
Hoag questioned whether there is an insurance policy the County could
purchase in the interim until there is a legislative fix. Gibson stated he suspected
there is. Insurers have difficulty writing such a policy. In that case, they would
pay more than less.
McShane asked if the County would ultimately have to go through an
adjudication process to transfer water. Gibson stated not necessarily. There is a
lot that can be done by way of water transfer without getting into adjudication.
Water rights transfer is a well- recognized device. Existing rights could be
transferred. Adjudication would be along the lines of whether there are additional
rights that could be granted or if an existing write is so gummed up it needs
adjudication.
McShane stated this process helps the DOE in areas where they are
comfortable and the DOE ultimately says there isn't a problem with lack of water.
He asked if that is the case in areas in Whatcom County. Gibson stated it is clearly
a case of certain sub - basins where transfers are appropriate.
Hoag stated that when they wrote the resolution to enable the board, it was
limited to transfers within sub - basins. They didn't want wild transfers. The main
point is that DOE has been backlogged for ten years. Those with legitimate
transfers have been backlogged. They are not creating an avenue to do things that
wouldn't be appropriate.
Henry Bierlink, Agriculture Preservation Committee, stated case law prohibits
DOE from taking applications and moving them to the head of the line. That is
what a Conservancy Board does. It allows them to do that. There are a number of
applications that make sense, but cannot get to the top of the line because of all
the other applications ahead of it. They have to do it by application date. The
Whatcom Conservancy Board is a tool to help solve some problems. It is definitely
a tool to help. They are interested in getting this up and running. That is why they
prompted a petition. One roadblock was the insurance issue. Now, director and
operator insurance can be purchased. They have to go through the application
process for the price, but it would probably cost $1,000 per year. Coverage is
about $1 million. He didn't know the deductible.
Hoag questioned whether $1 million is a reasonable amount of coverage.
Gibson stated they also have to look at, in addition to what they sue for, the
exposure of a board in a process that makes a recommendation, which he would
continue to argue is fairly limited.
Bierlink stated the commissioners are taking a prudent task. There has been
local opposition to the board. The likelihood of liability is there.
McShane questioned the source of the opposition. Bierlink stated a major
water player in the County opposed the board.
Natural Resources Committee, 8/8/2000, Page 3
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Hoag questioned why.
Bierlink stated there is a letter on file. The Lummi Nation urged the Council
to oppose creation of the board. They said they would watch every application
carefully.
McShane stated they are going to watch that the potential actions of the
board not exceed the easy and appropriate transfers. Bierlink stated he wouldn't
speculate. Out of principal, they are going to closely watch any decision.
Hoag stated it seems that the Whatcom Conservancy Board decisions have to
be approved by DOE. Bierlink stated yes.
Hoag stated the Whatcom Conservancy Board is a good thing, but they also
need to make sure it doesn't create more problems. She wanted an increased
comfort level on the certainty that it cannot be abused. When it was created, the
Council put in the language about limiting transfers to be in the same sub - basin.
She questioned whether there is a history of DOE's approval of other Conservancy
Boards' recommendations. Bierlink stated the DOE has a strong record of
approving the other Conservancy Board decisions, but almost always conditionally
and revised. They are never rubber - stamped.
Hoag asked if there have been any controversial ones. Bierlink stated there
have been. The Conservancy Boards have been fairly effective. There are
safeguards along the way, such as DOE approval and appeal rights.
Bierlink stated the potential commissioners have been wise and guarded. It
is going to take $5,000 to get them up and running. There have been private
parties that have an interest in getting this going and that have offered money, but
the commissioners denied that money so they could make unbiased decisions.
Gibson stated the one hesitation from a legal and management standpoint is
that, although Council appoints the board, the operation is separate. The County
offers indemnification to employees acting within the scope of their employment.
They do not have the same type of management control over an independent
entity. That is not to say there shouldn't be consideration and there is no trust, but
they have to factor that in.
Nelson stated that although the County may purchase insurance, he couldn't
image not having a sizeable deductible. He questioned whether the purchase by
the County legally ties the County to the decisions rendered. Gibson stated no.
The County is provided immunity under the statute.
Nelson questioned the ability to provide immunity to government agencies.
There was a legislative Act that prohibited immunity.
Watts stated the legislature did pass that act, but the courts have stated that
the legislature has been able to dictate how it is going to be sued. The legislative
act did away with it so they could create their own immunities. It is in RCW 4.92,
where they indicate that the government shall be treated like any other individual
in its governmental actions. That law is a state legislative act that did away with
governmental immunities. However, when they did that, the courts stated that
they are able to set the conditions, such as where they will be sued, the
Natural Resources Committee, 8/8/2000, Page 4
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procedures, and whether they will be sued. They condition that immunity. They
can get the immunity back. In isolated incidents, they have created immunities for
themselves. Legislative and judicial immunities exist.
Nelson questioned whether that immunity would apply if they were to take
separate action such as paying $1,000 for a liability insurance policy. Watts stated
they are purchasing insurance for the individuals taking the actions. The Council is
not taking any governmental action. That would not bring the County in.
Hoag stated she thought they provided $5,000 for the Whatcom Conservancy
Board. The County could set up the Whatcom Conservancy Board with $5,000, and
they could choose to spend the money on insurance. They choose to set the fees
to pay for costs. If the County advances $5,000 to get the Whatcom Conservancy
Board set up, they could also use the startup fees for insurance. After that, the
cost could come out of the fees they charge for the transfers. That would put the
County a step away. Gibson stated it is a possibility. In terms of logistics, he was
not sure that would play out. The ability to recoup the money depends on the
volume of applications. They would have to wait and see if there is a sufficient
volume of applications to comply with a repayment schedule.
Hoag stated there was a discussion at the Washington State Association of
Counties (WSAC) regarding Conservancy Boards. Other Conservancy Board
members present at that meeting spoke and said they do well in terms of
recovering costs.
Bierlink stated they originally looked at needing $1,000 for start up costs.
They thought that amount could easily be recouped. They don't know what the
startup costs will be. A start up amount of $5,000 would be a little more
problematic logistically.
Hoag questioned whether it would be problematic in repaying the money.
Bierlink stated it is problematic in terms of how much to charge for an application.
Some counties charge in the $750 - $1,200 range. A fee of $1,200 limits the
number of people who will apply. They begin pricing the applications out of the
market.
Hoag stated the County could recoup the money in a timeframe of more than
one year. One range of application fees charged by other counties was less
expensive. Both the counties present at the WSAC meeting were able to
accomplish what they needed to do for adequate funding. She hoped that the
amount they charge would be commensurate with the amount of water rights
someone is trying to obtain. Bierlink stated he feared that the workload is the
same no matter how much water is transferred, but they can have a staggered fee
schedule.
Hoag suggested they discuss a minimum fee to get started and to purchase
insurance, something repayable within a reasonable amount of time, and then bring
the items back to the Council.
Bierlink stated it has been done. He submitted the estimates (on file).
Nelson stated the agency would not be under the authority of the County.
They are now saying that the County would pay for services and liability protection
Natural Resources Committee, 8/8/2000, Page 5
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for service not under the County's authority. Gibson stated the County's input
occurs in the formation and appointment process.
Nelson stated the action should come from the state and the DOE. Gibson
stated he didn't disagree. The practical reality is that if the County doesn't do it, its
not going to happen.
Nelson stated it is another instance of DOE handing the County a double -
edged sword. Gibson stated this is not from the DOE. The legislature provided the
process, recognizing that the DOE wasn't getting things done.
Nelson stated his concern was that they have a proposed budget. He
questioned whether the County is capable of funding other agencies under the
County Charter and County laws. Gibson stated the question is whether there is a
legitimate County service being provided. In talking with the folks from the State
Examiners Office, the connection can be made. The health of this county as a
political entity depends upon the availability of water and the transfer of water
rights in an expeditious manner.
Hoag stated the money is a loan, not a gift. It would be repaid.
Nelson stated that is well and good, but for that amount of money the
Council should just support them. The Council would budget the money. He asked
how he could equate this with something the County has already done.
McShane stated it is similar to the Economic Development Council (EDC).
Nelson stated it is an important service that would be provided to the
County. He wanted to make sure it is a service he could justify. If it is, then it
shouldn't be different than anyone else.
Hoag stated she wanted to make sure it is a one -time thing and that the
future funding comes from permit fees.
Nelson stated that is easily done by agreement and contract.
Hoag stated that is okay, but it is not okay to give them $5,000 every year.
They can give the board $5,000 to start off.
Gibson stated that if they are inclined to head in that direction, the language
should state that it be up to and not to exceed $5,000.
McShane stated he preferred that insurance policy be brought to the County
attorney's attention to evaluate whether it would provide the level of protection that
would give the comfort level to the board members. Gibson stated he would leave
that decision to the board.
McShane stated the next options are to appoint new members or to disband.
Hoag stated it isn't up to the County's attorney to make that decision. It is
up to the board to make the decision.
Natural Resources Committee, 8/8/2000, Page 6
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Nelson suggested that they give this back to the Whatcom Conservancy
Board members to get the information needed and then schedule it before the
Finance Committee. The administration could work with the Conservancy Board on
the application. They have an idea where the Council is willing to go. The direction
is that the Council would probably fund up to $5,000, but they want to see the
policy.
McShane stated there is committee consensus to fund a $5,000 start up.
Bierlink asked for support for the legislative change to provide coverage for
state Conservancy Boards.
Nelson suggested also giving the issue to the WSAC.
Hoag stated she wanted to look into that further before providing her
support. There needs to be some way that people could have recourse.
Nelson stated the recourse is that the state should take the responsibility for
their Boards and Commissions.
Buzz Strickland, Whatcom Conservancy Board member, stated all three
members are no longer members.
Hoag asked if he would be willing to serve if they got the insurance.
Strickland stated they have worked on this. If they have any legal questions, they
can't go to the County Prosecuting Attorney. The County Prosecuting Attorney told
the board that he wouldn't provide support. The Whatcom Conservancy Board
would have to have outside legal support, which costs money. There needs to be
much clarification done on this thing. A lot of this was never brought forward. He
is not willing to get sued for $1 million. The other Conservancy Boards had a
certain amount of money from their counties for their start up money. The
Whatcom Conservancy Board has a meeting location. They hoped they could get a
clerical staff person from the County, but everyone is too busy. The Public Utility
District (PUD) wanted to fund it, but the board members wouldn't accept the PUD's
money. It has to come from a party who doesn't have an interest.
Hoag stated it has to come from the permit fees. Strickland stated that is a
while away.
(Clerk's Note: End of tape one, side A.)
Hoag stated that is why they need the start up money. This wasn't looked at
carefully because it was brought to the Council and because it was operating in
other counties.
Nelson asked if the members would be willing to look at an insurance
agreement if they had $5,000 for start up costs. Strickland stated they would have
to talk about it.
Nelson stated that otherwise it is wasting the County's time. Strickland
stated they would be willing to look at it.
Natural Resources Committee, 8/8/2000, Page 7
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Nelson asked if they are willing to bring it forward to the Council again once
they have looked at it. Strickland stated they would.
Hoag stated she understood why the County would not provide legal counsel,
but the application fees could pay for a legal retainer. It would be nice if DOE had
regular funding for the boards since they are facilitating part of their job.
ADJOURN
The meeting adjourned at 10:17 a.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Dan McShane, Committee Chair
Natural Resources Committee, 8/8/2000, Page 8