HomeMy WebLinkAboutNatural Resources December 12 20001
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WHATCOM COUNTY COUNCIL
Natural Resources Committee
December 12, 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: Absent:
L. Ward Nelson None
Connie Hoag
APPROVAL OF MINUTES
NATURAL RESOURCES COMMITTEE FOR OCTOBER 26 AND NOVEMBER
9, 1999
This item was not discussed.
COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
1. PRESENTATION BY NORTHWEST ECOSYSTEM ALLIANCE REGARDING
TRUST LANDS (AB2000 -410)
Elena Kanne, Northwest System Ecosystem Alliance volunteer, stated she
would discuss state trust land reform. She is a local attorney practicing
environmental law, as well as other areas of the law.
She started this project in February. She went to Olympia to testify to the
Board of Natural Resource regarding Austin Creek. She talked with Hudson Dodd
about how absurd it was to cut down forests to provide funding for the construction
of schools. They shouldn't have to make a choice. The values of both are high in
the society. The Ecosystem Alliance began a grass roots project to educate people
of that choice, and to look at providing different resources for funding of schools.
The State of Washington Constitution says land is held in trust for all the
people. People have to choose between healthy forests and funding for schools.
However, people don't have to choose between the two. The public can have both.
They need to start looking at things more creatively.
Nelson questioned the definition of a healthy forest. Kanne stated it is a
term used throughout the program. A healthy forest is a forest that is a thriving
ecosystem. A clear -cut is an imbalance in the ecosystem.
Natural Resources Committee, 12/12/2000, Page 1
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Dawson stated the balance is in transition constantly, due to aging forests.
Each different stage of forests is good for different things, but a healthy ecosystem
is always in transition.
Kanne continued to say that her presentation would include discussion of the
way the state trust lands have been set up in the past, the current management
today, the constitutional mandate that set up the state trust lands, values, and new
approaches.
In the past, state trust lands came about from the Washington Enabling Act,
section 10 and the Washington State Constitution, Article XVI. The second part of
the statute gives the public the flexibility to do what needs to be done with the
state trust lands.
When Washington became a state, the federal government granted land to
build and maintain state infrastructure. The state's constitution provided
beneficiaries. The beneficiaries are the people of the state.
In the past, the amount of trees seemed limitless. Now, there are fewer
trees, more people, and more expensive schools. Natural resources are not the
primary economic base. The public feels that the land is worth far more than the
dollar value of its raw materials. There are different trust lands that include the
common school trust land for Kindergarten through 12th grade, university trust
lands, capital grant lands, forest board purchase lands, and forest board transfer
lands. She was focusing on the common school trust lands.
Dawson asked about forest board transfer lands. Kanne stated it is a small
part of the trust lands. Fifty years ago, counties granted certain lands to the state,
which put the lands in a pool. Whenever there was resource extraction from those
lands, the benefits were allocated equally among the counties. The benefits are
generally used for fire, ambulance, and utilities.
Dawson stated she and Councilmember Crawford just toured the Stimson
property. Next to it is state Department of Natural Resources (DNR) land. It
cannot be harvested because DNR can set aside certain sensitive lands. This is one
of those sensitive lands designated for non - harvesting.
McShane stated those lands became transferred from foreclosure in the
1930's. The counties didn't have the resources to manage the lands, so they
turned the lands over to the state for management.
Dawson stated there is another category of trust lands being used by the
public and not being used by the schools. It was not included in the list.
Kanne continued to state that the constitution says the lands are held in trust
for all the people. That is a broader mandate than to only maximize short -term
revenue from state land for public school construction. The state has to manage
Natural Resources Committee, 12/12/2000, Page 2
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public lands for the good of the people, and includes many uses beyond resource
extraction.
Today, the state views the current system as a traditional fiduciary trust.
The state seeks to maximize revenue generation, most notably for the common
school construction fund. Private land management and environment standards are
higher than the state land management standards. The goals of the current system
are to generate revenue for common school construction and other public facilities.
There is an element of balancing fiduciary needs, current beneficiaries, and future
beneficiaries. In the trust system, they also need to look at future needs. The
system is based on historical interpretation. Revenues may be generated from
resource extraction, and revenues are designated for beneficiaries. However, the
beneficiaries are for all people, not just for school construction.
Dawson asked for clarification on what is meant by "all the people." Schools
benefit all the people, and all the people have access to the forest. Kanne stated
there are 2.8 million acres of state trust lands. Approximately 1.8 million are for
school construction. Another one million acres are managed for more than school
construction, and all the people. When they look at the 2.8 million acres in general,
there is a certain amount that is set aside by the constitution to pay for school
construction. There is also a balancing effect that it has been put before all the
people for their use.
Nelson questioned where the interpretation of the highest and best use came
from. Kanne stated it is a legal trust with a fiduciary relationship. Anytime that
relationship exists, the resource must be put to highest and best use. The current
idea is that the state has to log the 1.8 million acres for school construction. She
wanted to look to see if there are other ways to pay for school construction. They
are maximizing the revenue at the exclusion of all other public values. Highest and
best use can be a monetary use or preservation of the land for its intrinsic value.
The revenues generated by activities, including logging, on the state's 1.77 million
acres of common school trust land only amount to 20 to 25 percent of the state's
current school construction needs. It does not include any operating expenses.
Nelson questioned the dollar amount. Kanne stated she would provide that
information in a chart.
In response to current management practices, the public has demonstrated
support for other values besides generating revenues through logging. There are
two examples of the public's support. One example was Austin Creek. That came
from the people who live there and were worried about their health, safety, and
keeping that area intact. Another example was Loomis Forest, which was also state
trust lands set aside for schools. All they are talking about is getting some money
to pay for school construction through the use of the forest. That happened with
Loomis Forest.
Natural Resources Committee, 12/12/2000, Page 3
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Dawson asked where the money from Loomis Forest was reinvested. Kanne
stated it was $16.54 million of privately raised funds that went to an exchange for
the permit protection of the forest.
Dawson questioned whether they bought more forested land as a substitute.
Kanne stated it was an exchange.
McShane stated a good question for DNR is what it did with that money.
Hoag questioned how many years worth of education money was projected
from the sale of the land. Kanne stated the trees on Loomis Forest were not high
quality trees for timber purposes. The value was $50 per 1,000 board feet, which
isn't much.
McShane stated the value that was paid, $16.5 million, was for perpetuity to
create a fund to be available to the school trust forever.
Kanne continued to state that the average timber sale is $400 per 1,000
board feet. For Loomis Forest, it was $50 per 1,000 board feet. It is habitat for
endangered species and sensitive species. It made sense to set it aside rather than
log it. The school system got $16.5 million.
Nelson stated he was concerned with protection of an ecosystem because it
is a living organism that changes as it ages. As the aging process progresses, an
increased risk of diseases occurs. He questioned how to manage an ecosystem
without increasing risks to viable resources. Forestry is a natural resource to a
great extent in the State of Washington. If they jeopardize more industries, there
would be more significant impacts from that industry being impacted and from
items derived from forest products used in other industries. He questioned how to
balance that need of the public trust with also making sure they protect the
industries. Kanne stated protecting industry isn't what the framers of the
constitution had in mind when they said all state lands are held in trust for all
people. Councilmember Nelson is talking about protecting a specific interest, the
timber industry.
Nelson stated that industry affects all people, including Boeing and Microsoft.
Everyone has a benefit and it is not a special interest. He asked how to mix the
two. Kanne stated many interests were at stake. They are suggesting that they
look at everything and see what makes the most sense. Some of their suggestions
are to make some timber green- certified, making it more valuable, do more
selective cutting, do land exchanges, look at areas like Loomis Forest versus other
lands with high quality timber, and see what areas don't make sense to log.
Nelson asked how to address the issue of disease states being transferred to
new forests. Kanne stated she didn't know about the management of forestlands.
She assumed a disease would run its course. She didn't know the management
practices for a diseased tree. She assumed that the current forest management
would continue as it has been. They are not suggesting stopping management.
Natural Resources Committee, 12/12/2000, Page 4
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Nelson questioned whether there would be a need at times to do some
cutting. Kanne stated yes.
McShane questioned whether the goal is to address more than just providing
money for the school trust, to take into account all issues. They are not at that
point right now.
Kanne continued to state that there is a constitutional mandate of setting
aside state trust lands. There is more at stake than just school construction. There
are many uses beyond revenue generation.
Dawson stated they are ignoring the mandate to use the forest for the
schools. Kanne stated they are not saying that the use of the lands should not
result in money for school construction. There is also a general mandate that the
trust land be used in trust for all the people, which means all the people might have
different values put on lands besides just resource extraction.
Dawson stated the resource extraction is what pays for schools. Kanne
stated they are suggesting there are other ways.
Dawson stated they could sell the lands and get the money, such as was
done with Loomis Forest, but that is a temporary thing, unless the money is
reinvested in forestry. They have to look 100 years into the future. The resource is
renewable. That is the entire point.
Nelson stated there are other methods to generate money for schools. That
is what Lotto was for.
Kanne continued to state that trusts are based on common -law legal
principles, similar to a trust fund. There are two kinds of trusts. One is an
undivided loyalty to the beneficiary that recognizes no other interests, and the
other is a divided loyalty to the beneficiary, which recognizes interests of multiple
parties. This trust has a divided loyalty. The constitution does not mandate
maximizing revenue. Intensive revenue - generation decreases long -term resource
value.
In Colorado, the constitution requires government to maximize revenue. The
State of Washington drafted its constitution in 1889, and said the revenue does not
have to be maximized. The trust is divided among all the people. New Mexico
drafted its constitution in 1912 and said the trust must go to one specific
beneficiary, which is strict trust. Colorado and New Mexico constitutions made
specific designations of the state trust lands. Washington has no mandate to
maximize its trust land and no specific beneficiary. It is more flexible. Colorado
had to amend its constitution, because it mandated maximizing revenues to include
consideration of sound stewardship.
Natural Resources Committee, 12/12/2000, Page 5
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Dawson stated the DNR already has provisions for protecting sensitive areas.
This has already been addressed.
McShane stated it took a legislative act to set those lands aside.
Nelson stated they would want it to go through the public process.
Kanne stated the topic is about producing revenue for school construction
from state lands, which is 20 to 25 percent of the total cost generated for schools.
Nelson stated he wanted to see the school issue taken out of forestlands, and
see that forestry practices revenue goes back into habitat restoration and
protection. The funding used for environmental issues should be generated from
forestland dollars. Those monies going now to environmental issues can go back to
schools. If forestry is important as an environmental factor, then all the agencies
that are required to protect the environment should receive funding from
forestlands. Let the schools be funded from the money now used for environmental
agencies.
McShane stated it would take a constitutional change.
Dawson stated she would rather have renewable and secure funding for the
schools.
Nelson stated the mechanism to have the funding pay for what it is trying to
do works in Canada. The state Department of Ecology (DOE) and the Department
of Fisheries could receive funding from forestry revenues. The public benefit would
go directly to the schools.
(Clerk's Note: End of tape one, side A.)
Kanne continued to state that the Washington Constitution has general and
specific wording that the entire revenue derived from the common school land trust
shall be exclusively applied to the support of the common schools. The reason why
they put the provision in the constitution to mandate that all revenue generated
from specific lands be exclusively applied to trust beneficiaries was to ensure that
land and resources were not stolen from the public. The state leaders wanted to
make sure that Washingtonians were compensated for resource extraction from
state lands. The people in the State of Washington have the power to make the
decision on how they want state trust lands managed.
There is a case called Skamania County versus the State of Washington.
There was a timber crash in 1984. Timber industries put bids in on timber a few
years before the timber was cut down. Ultimately, if all the timber industries were
to pay on all the timber they put the bid on, it would be very difficult for the timber
companies. The state forgave the private timber company contracts for logging to
help the industry avoid the danger of private losses due to a plummet in the forest
products market. The Skamania court said that couldn't be done. The timber
Natural Resources Committee, 12/12/2000, Page 6
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industry was a third party private industry that the state shouldn't have taken into
consideration when taking action. By forgiving the bids, the state felt the people of
the state would lose out on money generated by the timber sales, and the timber
industry had to make good on their bids. This is the only case that deals
tangentially with what they are talking about. The Skamania case did not define
what a beneficiary is. It was about public versus private interests, not about
financial versus broader public beneficiaries. The state had to take the beneficiaries
into consideration.
Washingtonians have other values, such as education, recreation, water,
wildlife, forests, bio- diversity, and clean air and water. The people shouldn't have
to sacrifice one for the other. The people should be able to have it all. A new
management approach should continue generating fiduciary trust revenues, meet
the needs of all the people, and do so in perpetuity. The challenge is to fulfill all of
those things.
Dawson stated the needs are already fulfilled for the public.
McShane stated drinking water is a need. The DNR can't set lands aside
unless the state legislature acts.
Dawson stated that is important.
Kanne stated the needs she talked about are the needs she defined for
recreation, schools, clean air and water, and forests. Lands designated for schools
pay for school construction only. They contribute 26 percent of the total school
construction budget. They don't cover operating expenses, such as teacher
salaries.
Trust revenue is a percent of total state and local funds appropriated for
school construction. Chart 2 shows the percent of common school construction
funded by the state and trust revenues as a percent of total school construction
funds. The figures are for the biennium. For 1991 -1993, it was $118 million. For
1993 -1995, it was $117 million. For 1995 -1997, it was $175 million. From 1997 to
1999, it was $169 million. The average percent in the 1990's was 26 percent, $145
million. Compared to the total amount of money the state spends on schools, it is
not a large amount. It is .3 percent of the total state budget. It is a small amount
of money that could be redistributed.
Regarding funding today, one - quarter of school construction comes from
state and local revenue. The legislature pays the rest. Regarding funding
tomorrow, all school construction should be funded through realistic and sustainable
sources. Cutting forests for schools and other trusts is not always appropriate in
today's economy. Financial trust beneficiaries are positioned to lead the effort in
develop new finding source models. The effort can be supported with scientific data
and creative thinking. The effort would avoid unnecessary court battles. It is an
achievable challenge. Eliminating the conflict can be achieved by turning to other
funding sources. School construction funding can be funded from other revenue
Natural Resources Committee, 12/12/2000, Page 7
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sources. It is only 1.23 percent of the total education budget. It is only .3 percent
of the state budget.
There are ideas for what the people can do. The constitution provides
flexibility to decide how to manage state trust lands. One idea is that the DNR is
applying to have their lumber certified as a green product line. It would raise the
market value of the lumber, which would increase revenues by reducing logging
levels.
Dawson stated the DNR Board is looking to have some discussion on this
issue. She asked what green certification is, and whether it means they do not
spray trees permanently. Kanne stated it is responsible logging and management.
Being responsible generally doesn't include clear- cutting and keeps the ecosystem.
Dawson stated those definitions are important. She questioned whether five
acres out of forty would be a clear -cut. Kanne stated a clear -cut is a cut without
regard to the quality of timber.
Dawson stated it is not done that much anymore. Kanne stated that is one
facet of what it means to have a product green certified.
Dawson stated that dialogue is important, and is not happening at the state
level.
Hoag stated she had made a number of observations through the years. To
her knowledge, there is still a lot of clear- cutting going on. The difference is that
there are new buffers. One problem with clear- cutting is that all the vegetation is
removed from the hillside. They end up with erosion, trees that are cut too young,
and removal of ways to store the water in the ground. Selective logging takes only
the trees that are good trees. Another problem with clear- cutting is that the area is
generally reforested with only a single species, which becomes very susceptible to
disease. She wanted to know exactly what green certification means, and asked for
more information at a later time. Kanne stated that local companies in Whatcom
County provide and use green- certified building materials.
Hoag stated she wanted to know the specific requirements of the foresters to
have their timber green- certified.
Nelson stated he also would want to know the fiscal impacts. Clear -cuts are
restricted on the size of the parcel that can be clear -cut. The Washington State
maximum is 80 acres for clear- cutting.
McShane stated there is always a percentage of leave trees.
Nelson stated there are fiscal impacts to selective harvesting. In any of the
recommendations, they need to look at the fiscal impacts. Kanne stated that was a
good point. There are communities in other countries that they can look to for that
fiscal analysis.
Natural Resources Committee, 12/12/2000, Page 8
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Nelson stated many forest practices mix their timber on their land because
the market fluctuates. The companies will selectively cut the valuable trees.
Hoag stated she grew up on a tree farm. Trees do not mature at the same
time, which is why they should be selectively harvested. There does need to be a
fiscal analysis along with this.
McShane stated they could get more information from others on green
certification.
Kanne stated they need to look at flexibility and funding. One idea is to raise
the market value of lumber and increase revenues to provide for the schools while,
at the same time, reduce logging. The green product line is a way to do that. Also,
schools must currently pay a sales tax on building materials. Provide an exemption
on sales tax for schools' construction materials.
DNR could work with the legislature to expand the trust land transfer
program, in which the legislature uses money from the general fund to set aside
state trust lands. They are looking at extracting money from these lands by doing
a transfer program.
Another idea is that the DNR could be streamlined for bureaucratic efficiency.
Another suggestion is to use the common school permanent account to
create an endowment for school and university construction, while maintaining
resources. The endowment could be invested aggressively and still maintain the
state lands as public resources. Invest the state surplus to create a way of
generating resources for school construction that would go into the common school
permanent account, which is the account where the money goes that is extracted
from the common school trust lands.
The last idea is an excise tax on wood products. Proceeds could go directly
to the school construction fund. The tax could take various shapes and be of
various scopes, but has the potential to directly channel funds from resource
extractions to the fiduciary beneficiary.
Jennifer Belcher was a keynote speaker at a conference on state trust land
reform, which was open to the public to provide ideas and dialogue. She could
provide information on what happened during that conference.
Dawson stated they should let the state know of the option to put sensitive
areas under preservation.
McShane stated the legislature still has to put money aside. It is not easy to
do financially. It is not necessary to just preserve land. They want to continue
logging, but in a different manner to benefit society as a whole.
Natural Resources Committee, 12/12/2000, Page 9
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Dawson stated there have already been a lot of changes. There are different
ideas of what good logging is. Kanne stated the changes are due to the lower
amount of forested areas.
2. RESOLUTION TO STATE LEGISLATURE REGARDING EXEMPT WELLS
(AB2000 -411)
McShane stated the resolution he put together was without input from
anyone. He was hoping for input and suggestions. He wanted to keep the
language general. However, if people want to become more specific, that is fine.
His goal was not to get rid of exempt wells, but that the withdraw of groundwater
would not further impact streams identified with inadequate flow or impact existing
residences, farms, and industries.
Nelson stated he could support a similar concept and was opposed to the
language regarding restricting the use of exempt wells. This is a zoning issue. If
densities impact streams, then they should change the zoning in those areas so the
public understands what to expect. This is loose, although admirable in its attempt,
in protecting instream flows. It doesn't address the issue of what the impacts are,
such as depth requirements and area requirements that would protect those stream
flows. He suggested language urging the legislature to get DOE to delineate what
those impact areas are and to what degree development can impact those areas.
McShane stated one idea was to use the potential language in Title 21 that
the councilmembers felt was a state issue, and to use that language, which
addressed those very issues. He would not necessarily agree that it was a zoning
issue. There could be withdrawals using exempt wells, as long as it could be
demonstrated that those wells would not cause the impacts that would be negative
to existing water rights.
Nelson stated the question is what the actual impacts are. This doesn't
address that.
McShane stated he made the decision to leave the language general, but he
would be open to adding the more specific language they discussed earlier and that
would address those concerns. In doing that, they wouldn't have to worry about
zoning so much.
Nelson stated he would concur if they could delineate the amounts that
create the impacts. There are many tools they could use.
(Clerk's Note: End of tape one, side B.)
McShane stated they are spending a substantial amount of money on the
Water Resource Inventory Area (WRIA) process. The WRIA process will address
these same issues, and will come down to whether the WRIA process and decision -
making matrix will provide local decision - making on those concerns. The County
Natural Resources Committee, 12/12/2000, Page 10
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will be the one who knows. The state Department of Ecology ultimately has to sign
off on it, but the local process and investigations will help Ecology's view.
Nelson questioned whether they want to impose the impact of all the
investigation on the private homeowner or the developer.
McShane stated an exempt well is not necessarily a private well. That is a
critical distinction that confuses a lot of people. An exempt well can easily be a
public system. His concern lies with the large public systems.
Nelson stated there is a greater degree of protection of water quality with
public systems.
Hoag stated she was concerned with the misuse of exempt wells and also of
the legislature's past attempts to remove exempt wells. She suggested language
changes. It is appropriate that the legislature look at it, but she couldn't support
the language as it is. She moved to add language to the last "Whereas" statement,
"...the misuse of exempt...." They are not saying that the ordinary, appropriate use
of an exempt well might cause a problem. Instead, they are asking the legislature
to look at the misuse of exempt wells. The misuse of exempt wells is when one
uses multiple exempt wells to get around not having a water right. She did not
want exempt wells to be targeted.
Nelson stated misuse is an interpretation of an individual. Six -packs may
have impacts, but they may also have a use in protecting water stream flows and
quantity. Zoning is a tool in which to restrict the number of holes punched in the
ground. Individual exempt wells are still allowed to be put in. With this resolution,
they are placing an impact on individuals to create more wells being put into the
ground. He wanted to look at tools. An interpretation of misuse is an assumption
on an individual that needs to be scientifically determined.
McShane questioned how Councilmember Nelson would define that.
Nelson stated he would work on it.
McShane questioned whether Councilmember Nelson preferred going through
the legislature or the WRIA process.
Nelson stated he wanted to use the clearest process. The state needs to
concur by having DOE agree.
McShane stated DOE already agrees. They've taken the use of multiple
exempt wells to court. The court said that it is up to the legislature.
Nelson stated the process should then be through the legislature. He did not
agree to the motion.
Natural Resources Committee, 12/12/2000, Page 11
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McShane stated the particular state Revised Code of Washington (RCW) is
where the problem lies and where they need to make the change. How that
happens is not lined out in the resolution.
Hoag stated that the legislature and DOE have both sent clear messages that
they intend to move forward on this issue. It causes great concern for her as an
exempt well owner. Her motion focuses the legislature on the specific issue of the
misuse of exempt wells in sensitive areas. That is all she wanted the legislature to
look at. If the County does nothing, it will have problems.
Motion failed 1 -2 with Hoag in favor.
Hoag moved to add language, "WHEREAS the Whatcom County Council
wishes to protect the use of exempt wells for private well owners, but prevent
misuse such as multiple exempt wells for very large water withdrawals in sensitive
areas;"
McShane stated he supported the first phrase. His concern is for protecting
the small water system using exempt wells. He suggested a friendly amendment
that the "Whereas" statement end after "...private well owners."
Nelson stated that hits the nail on the head. It concerns all of them. They
are trying to protect the traditional use of the exempt wells. He suggested
language framed in that manner. If they put language in that specifically states
something, it may close off avenues of protection later on.
Hoag stated that sends a different message than what she is trying to send.
It would include things that may put other well owners in jeopardy. The exempt
well was intended to protect the private well owners. It is a message the state
needs to hear.
Hoag accepted the friendly amendment from McShane.
Motion carried 2 -1 with Nelson opposed.
Bruce Roll, Water Resources Manager, stated the WRIA process looks at
instream flows using best available science. They will need to judge what the
science tells them.
As they break down the available data in specific drainage areas, they will
find areas where consumptive use is not an issue. Part of the challenge is to
identify the areas proactively. Look for management strategies in areas affected by
impacts that allow for different ways to bring water to those areas or replenishing
instream flow during critical times. Expect the decision support system (DSS) to
answer the questions of what will be available. His frustration is that it is on the
burner right now, and he didn't have this information to provide to the Council.
Natural Resources Committee, 12/12/2000, Page 12
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Hoag stated Mr. Roll's point is important. That is why she liked the language
that talked about streams that have been identified with an adequate flow. It is
important to send a message about this now. The legislature tried to move forward
on exempt wells by restricting wells to 300 gallons per day. The information is
valuable, and it would be important to add as a "Whereas" statement. Add
language that incorporates the fact that the WRIA process is going on and they
would be looking at this. She recommended expanding a "Whereas" statement to
include the fact that the WRIA process is going on.
Nelson stated that the intent is well meaning, but they are missing the boat.
There are ways to have development occur using other methods. They need to
work with the building community. There are economic impacts to rural areas.
They need to provide protection in the future. Recognize the impacts created when
they withdraw water. This requires some work. If they start changing the
language and move it forward, he would not support it. He questioned whether
Whatcom County has impacted streams identified by DOE at this time.
McShane stated they are listed.
Nelson asked if Whatcom County has streams with inadequate flows. Roll
stated they are identified. There are data sets to support that issue. They are
determining now whether it is valid.
McShane stated the language proposed as an amendment to Title 21 was
supported by councilmembers, but they also felt they were stepping on the state's
toes. His idea was to tie it to WRIA. If the Council sees that Ecology has identified
the streams as having instream flow process, they may find out DOE was wrong
through the WRIA process. If DOE is wrong, he was not worried about exempt
wells in those areas.
Nelson asked the intent of the resolution.
McShane stated the intent is to use the WRIA process to make water
decisions. In his opinion, the current potential use of exempt wells may threaten it.
Nelson stated he also wanted to hear from the community to make sure they
understand the economic impacts.
McShane stated he would bring back the language written by the Planning
Department linking this to the WRIA process.
Nelson stated that language identified a specific withdrawal method.
McShane stated it identified multiple six - packs. He was not comfortable with
going further. His concern was with multiple six -packs in areas where they have
problems. The reason they are exempt is because they don't use that much water.
He was not ready to say that they need to regulate any exempt well.
Natural Resources Committee, 12/12/2000, Page 13
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Nelson stated they don't have the information to make a decision. Any
decision will have a fiscal impact on the community.
Hoag moved to amend the resolution, "...County Council supports a-ffy efforts
by the ...and industries are protected and that withdrawal of groundwater will not
further impact streams identified..."
Motion carried unanimously.
Bob Wiesen, 3314 Douglas Road, stated this is a complicated deal, and all
pieces should be put together. The big problem has been DOE. DOE makes people
do all these things to allow additional hookups if they prove they don't go above a
certain usage. Sandy Point did that. The state Department of Health (DOH) agreed
with extra certificates for Sandy Point, but DOE didn't allow that. Then, it created
pressure in other areas to create more exempt wells. This whole thing is a
balancing act. The reason more has not been done about exempt wells is because
they haven't solved the other side. They have to solve the other side. This is a
countywide problem. Councilmember McShane's position doesn't demonstrate the
interest of the rest of the county.
Emily Salka, Building Industry Association (BIA), stated they are defining the
term "exempt well." The legislature has not defined this term. The first ordinance
passed in 1945 did not define or restrict the exempt well. It is important to keep
that in mind when wordsmithing the resolution. They language says they want to
protect private wells. She questioned why they would not say they want to protect
exempt wells in general.
Hoag stated that is not the same thing as defining an exempt well.
McShane stated that their reference to exempt wells is just to RCW
90.44.050 because that is what everyone uses. That is where the state needs to
take a look.
Salka stated another bill went to the legislature that attempted to restrict
exempt wells. It was overwhelmingly defeated. That is the state's message that it
does not want to define or restrict exempt wells. That doesn't pose a problem as of
this date. That bill was in 1998.
McShane stated that isn't where he wants to tread right now. He agreed
with the generalization of the item. They can't hash that language out right now in
committee. Salka stated the problem with the language in Title 21 was that they
were placing restrictions and burdens on the residents by proving that they are not
in hydraulic continuity and have an adequate supply of water. It is very costly for
someone who wants to use his or her undeveloped land to plant a crop.
McShane stated the resolution was only for multiple exempt wells only.
Natural Resources Committee, 12/12/2000, Page 14
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Hoag stated it is only for a subdivision that would withdraw more than 5,000
gallons of water per day through the use of multiple exempt wells, and only in an
area of impaired streams. Salka stated a majority of the streams in the County are
impaired.
McShane stated that he only wanted to deal with the multiple exempt wells.
Salka stated the state hasn't said that the multiple exempt wells or one private well
have a significant measurable impact on the availability of groundwater or flow
streams. It is important to get that information before they began sending the
resolution to the legislature.
McShane stated the state felt comfortable enough about this to take it to
court twice. Salka stated it was defeated. There needs to be evidence that there is
a measurable impact by the withdrawal of water by exempt wells.
McShane stated people's wells have gone dry because of other multiple
exempt wells that were installed. He's had ten years of experience dealing in
groundwater hydrology. When he hears someone say there are no impacts, his
stomach knots up. Salka stated there hasn't been clear and compelling evidence.
McShane stated he'd personally seen clear and compelling evidence.
Developers have never had to question the impact of their multiple exempt wells to
other water users in the area because the question does not have to be answered.
Hoag questioned whether Ms. Salka's position was that someone should be
allowed to put a multiple exempt wells in an area where there are impaired stream
flows and should not be required to prove that it would not cause a problem. Salka
stated she wasn't saying that. They are allowed to do that by law. It will be too
costly for the developer if the County Council starts passing a resolution to make
the burden of proof on the applicant. It will have serious economic effects for them
to pay the money to do that.
Hoag questioned who should have the burden of proof. The developers are
the ones who want to put in the wells. They are the ones who are changing the
situation. Salka stated she couldn't answer that. The resident shouldn't have to
pay the cost. It is very costly.
Hoag stated this only applies to subdivisions with multiple exempt wells
where more than 5,000 gallons of water per day would be withdrawn in areas
where there are already impaired stream flows. It seems the person coming
forward who may pose a problem would have to prove that they are not going to
pose a problem. The general public should not have to ante up for that.
McShane stated he would work on more specific language.
(Clerk's Note: End of tape two, side A.)
Natural Resources Committee, 12/12/2000, Page 15
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McShane continued to state that he would bring it forward at the evening's
meeting with no committee recommendation at this time.
Hoag questioned whether Councilmember Nelson would work with Bruce Roll
to incorporate language regarding WRIA.
McShane stated he would. The criticism that this is too general is well taken.
ADJOURN
The meeting adjourned at 11:57 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, 12/12/2000, Page 16