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HomeMy WebLinkAboutNatural Resources February 22 20001 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 WHATCOM COUNTY COUNCIL Natural Resources Committee February 22, 2000 The meeting was called to order at 10:00 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 DISCUSSION 1. DISCUSSION REGARDING TOTAL DAILY MAXIMUM LOAD FOR JOHNSON CREEK (AB2000 -091) Steve Hood, Department of Ecology (DOE), stated Johnson Creek has been on the 303(d) list, which is their list of threatened and impaired bodies, for awhile. Statewide, there are 700 bodies of water on the list. This is the list they select from when they decide where they want to fix the pollution problems. In Whatcom County, there are 40 bodies of water on that list. Johnson Creek had been identified as a problem in the early 1990's. DOE did some studies in 1990 and identified fecal coliform and dissolved oxygen as major pollutants of concern in Johnson Creek. They did another study in 1995 and 1996 that was more detailed. It was an effort to get quantification so they could determine how much is too much and how much they have to cut back on. The result was a water quality assessment, which he provided (on file). The assessment is not very useful in dealing with how many actual fecal coliform colony- forming units they can handle in the river and still meet the criteria. When they get to the very end, they have to reduce all the illegal sources. He wanted to discuss the strategy for cleaning up the river. The background is the summary implementation strategy. They need to flush out the details and create an implementation strategy. The County may have to deal with septic tank issues. The County has money for the loan program, but is still trying to work out the details. Whatcom County Health Department Environmental Health Supervisor Chris Chesson has been working with the Conservation District (CD) on implementing that loan program to assist people in repairing failing septic systems. Also, some farms have been discovered to have no septic system. DOE will be asking the County to use its regulatory powers to deal with those farms. They will also work with the Conservation District and the Natural Resources Conservation Service (NRCS) in looking at making sure that the dairy nutrient management plans in place are appropriate. They may also look at other agricultural sources of fecal coliform as well. The strategy is to work with the dairies first. That is their responsibility and that is where they have the greatest tools. There is a map that identifies all the dairies in Johnson Creek. There are many of them. The Environmental Protection Agency (EPA) wants DOE to deal with permitted facilities first, so DOE has to show where they are and that they are not a source. That isn't a big concern for the County or DOE. Natural Resources Committee, 2/22/2000, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 The list of things that were found to be a problem goes beyond fecal coliform and dissolved oxygen. In the 1995/1996 study, they found high fecal coliform and low dissolved oxygen, but they also found high temperatures, low pH, high turbidity, and excess nutrients. Almost all of those contaminants, outside of temperature, are related to the same issues, such as manure and septage. While they are doing a TMDL study to deal with fecal coliform and dissolved oxygen, they are anticipating that at the end of five years they will see all of those things cleaned up. They also hope to implement riparian vegetation by working with drainage district #31. They've been working together for a couple of years to find funds to help them establish riparian vegetation. That will help them with fecal coliform and dissolved oxygen by removing pollutants before they enter the stream. In the long term, they hope it will also address temperature. They will do follow -up monitoring soon. They hope a grant will fund an agency to do the monitoring in the next couple of years. They anticipate meeting the criteria for fecal coliform, dissolved oxygen, nutrients, and turbidity in about five years. It gives them a chance to implement all the dairy nutrient management plans and do some other follow up activities. Nelson stated the only funding available was $300,000 for the on -site septic systems. He questioned whether there are resources available to implement the five -year program. Hood stated he was not sure what funding the NRCS has. They have funding to install best management practices on dairies, through the Conservation District. Nelson questioned whether there are resources available from all the agencies involved for implementing this proposed plan. Hood stated that anytime they have something that implements a TMDL, which is what a monitoring follow -up would be, it awards more points to the Centennial Clean Water Fund application, which includes Centennial Fund grants, loans, and state revolving fund money. The state revolving fund money is for anyone who has a reasonable plan. The interest rate has been dropped to 1 1/2 percent. There is also 319 money, which is from a federal program. That is specifically for non -point pollution. Because of the way they've looked at Johnson Creek, they identified that there are no point sources. Anything in Johnson Creek would be eligible for the non -point funding source, the 319 money. He had discussions with people in Olympia about raising the priority of this particular TMDL. They will find out in the future where that will go. It may become a model for non -point TMDL studies. Nelson stated the County had an agreement with the Whatcom Conservation District to implement farm plans regarding critical areas. He questioned how much of that work has been done along Johnson Creek. That was a mechanism the County used to provide understanding that agricultural activities are important in this community, and the farmers should work to develop plans that protect critical areas. He questioned whether the farms were doing that. Hood stated they have been producing farm plans at a furious pace. He didn't know how many have been completed in Johnson Creek. That is work that he deferred until he could get to the detailed plan. Because of the state Dairy Nutrient Management Act, they will have plans for all the dairies by 2002. The farms will be obligated to have those plans implemented by the end of 2003. Hoag stated the County's nutrient management ordinance was passed after the 1995/1996 study. She questioned whether there has been any monitoring done to see if that cleared up the problem or if it had any effect on the problem. Natural Resources Committee, 2/22/2000, Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Hood stated there has been some monitoring in the Nooksack Basin by the Northwest Indian College. They haven't done any studies on Johnson Creek. What they found in the Nooksack is that there was an improvement, but not enough to solve the problem. Some basins had a 15 percent reduction. Other basins actually went up a bit after that legislation passed. Overall, they could see measurable improvements. Hoag stated Hood mentioned septic systems. The question is whether they contribute to creeks and rivers. She questioned what indicated that septic systems are a problem. Hood stated there are a couple of farms, some of which may not be near Johnson Creek, which actually don't have a septic system at all. That is a violation of state and county laws. They measure low dissolved oxygen by biological oxygen demand, meaning the kind of elements that are being put in the water that are using the oxygen. They have been working with Chris Chesson on those issues. He couldn't say whether or not that will be an issue in Johnson Creek. It is a possibility. Septic systems are a possibility. Dairies are a high probability source. McShane asked if there have been iron bacterial blooms. Hood stated he didn't recall. He would not be surprised if it occurred. McShane stated he was trying to get an idea of how much of the loading could be from excessive nutrient input that may not be a surface water problem, but just too much going on in the ground surface itself. Some of it could be natural. Hood stated the TMDL process basically defines who can pollute. First in line are the natural sources; next are the non -point sources. The EPA makes them tighten the point sources as far down as possible, sometimes to zero. Dawson asked about contribution by birds. Hood stated they have not focused on birds because the levels are high all year. The contamination patterns do not cycle with the migratory patterns of the birds. They have not pursued the bird angle. They do know that with greater levels of riparian vegetation, the birds will spend less time grousing in the fields adjacent to streams and will stay out of the riparian vegetated area. Hoag asked if there is an update to Drayton Harbor. Hood stated Johnson Creek was identified as high priority in 1995. They will have an opportunity late this summer to scope, which is laying out everything that may need a TMDL study. At that point, they will look at the community to provide input. He hoped the 2514 watershed planning process would also be a source of coordinated comments. They identify all water bodies that don't meet standards, then rank them. They will be able to do studies the following summer. At that point, they can rank Drayton Harbor with all other priorities. Hoag asked if there is anyway to do some manure monitoring to see if this still needs to be done. Hood stated he encouraged Michael Cochrane to consider putting in an application for funding to do monitoring of Johnson Creek. He didn't know if that would actually happen, but it may rank highly. It would take a consistent monitoring program. Fecal coliform levels vary widely. It takes much effort to get data. Nelson asked how far up the ranking is riparian repair on Johnson Creek. Hood stated it is significant. Natural Resources Committee, 2/22/2000, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Nelson stated reducing temperature and evaporation would reduce the number. Hood stated riparian vegetation increases the amount of water that infiltrates into the ground. Riparian vegetation opens the ground more, rather than the water travelling along the surface. They can address the temperature problem. Hopefully they can solve that before they get to the TMDL process. Hoag questioned whether the plan would address a new source if there was one that they find raises the temperature. Hood stated that would be a problem. The new power plant plans to send their water to Canada. Hood stated it would go to the Abbottsford sewage treatment plant. McShane stated a lot of this will be handled administratively, but if issues arise, Hood should notify the Council. Hood stated comments on the document are welcome. 3. DISCUSSION WITH ROGER ALMSKAAR REGARDING THE BUSINESS COMMUNITY'S TAKE ON THE SALMON ISSUE (AB2000 -095) Roger Almskaar stated he didn't represent the entire business community. He is a member of the Whatcom County Realtor Association. They have a state organization. He is a member of the Common Sense Salmon Recovery coalition. Their main point is that they want to save the salmon. There are many reasons for saving the salmon. Their main concern is that, if they let the National Marine Fisheries Service (NMFS) go ahead with their rules and regulations, they may end up with a lose -lose situation. There would be an additional layer of rules on top of what exists now. The State of Washington has one of the heaviest regulatory burdens in the country. He submitted documents and newspaper articles regarding his organization and the issue (on file). NMFS wants to come down on people who build houses, create jobs with new industry, or produce food and fiber. However, NMFS is doing almost nothing about offshore fishing. They increased the harvest by 300 percent last year; the same year they listed many Chinook runs as threatened. That is crazy. There is a statistic that says for every ten salmon that go out to sea, six are taken by ocean drift nets, one each is taken by tribal and commercial fishers, and one is shared between sports fishers and predators. The one remaining fish is expected to struggle upstream to spawn. The NMFS staff never disagreed with that statistic. McShane stated he heard that an 87 percent mortality is considered healthy. Almskaar stated he has done a lot of work for industry and land use. When someone wants to set up or expand a plant, they can have problems finding a site that will work for the industry. They have to protect the environment, and they need to beef up some of the rules, but some of the rules are arbitrary and overkill. Hoag asked for clarification where the drift nets belong in the statistic. Almskaar stated that is foreign fishermen. He didn't have the number. The government has the power to deal with that issue, but they are not. It is a double standard. NMFS was supposed to have documentation in the record to support information when they adopted the listing. His lawyers have not been able to get that document. When a federal agency adopts this rule, they are supposed to have Natural Resources Committee, 2/22/2000, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 a report that provides the reasoning for the decision. He provided documents from NMFS and a copy of their lawsuit. Bill Henshaw, Building Industry Association (BIA), stated there are four points to their lawsuit. They've failed to take action to develop and implement a plan to prevent excess harvest. That alone would avoid any justification for the listing of salmon under ESA. They are permitting and allowing excess harvest. They are allowing and not controlling the take of the salmon by known predators. They are failing to protect necessary spawning, rearing, and migrating salmon. They are failing to take appropriate measures to conserve and rebuild the salmon stocks, including passage facilities and hatcheries. They are excluding hatchery salmon from the wild salmon. He believed it is impossible to distinguish between a wild salmon and one that was released from a hatchery. They have been releasing salmon from hatchery since 1899. Those salmon have had opportunity to become wild. Nelson stated genetically there is a difference. He questioned whether Henshaw's experts are saying there is not a difference. Henshaw stated that was correct. Dawson stated she talked to their attorney, Jim Johnson, who received that information from a biologist on the East Coast. Henshaw stated that NMFS did not differentiate between wild and farmed salmon while identifying endangered species with the Atlantic salmon. Hoag stated this Council has taken a stand on water plans and salmon plans that called for the harvest and predators to be addressed. She drafted a resolution asking Congress to modify the Mammal Protection Act so they can deal with their effect on the endangered species. They do support that stance. She questioned increasing the Washington coastal harvest of Chinook by over 300 percent during the 1999 fishing season. They don't distinguish between fall and spring Chinook. The Spring Chinook are the ones in danger. Almskaar stated it was a combination of the two species. A large portion of that 300 percent is listed as endangered. Hoag stated when NMFS talked to the Council, they mentioned that, when they changed the harvest ratio on the Columbia River a slight amount, it resulted in a large increase in the returning spawners. Brenner stated she was concerned about the argument about wild and hatchery fish having the same DNA. Almskaar stated hatchery fish are not farmed fish. If the hatchery fish were not clipped on the fin, the scientists cannot distinguish the wild runs from the hatchery runs. Part of the reason is they've been breeding together for a hundred years. Brenner stated there is a genetic difference over time. Almskaar stated they want to be part of the solution. McShane stated the goal is that they find common ground. He cautioned them to not waste their money on something that was not true, regarding the biology of the situation. Almskaar stated the more he has learned, the more he believes the lawsuit was the right thing to do. Natural Resources Committee, 2/22/2000, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Brenner asked if NMFS was sued in an effort to create the listing. Almskaar stated he believed they were in Oregon. McShane stated they were sued in Washington also. (Clerk's Note: End of tape one, side A.) Brenner stated it is easy to pick on NMFS, but they were dragged into this also. Almskaar stated that, regarding buffers, it isn't the amount of the buffer but what is in the buffer. McShane discussed the letter regarding the Department of Ecology's State Master Program Approval /Amendment Procedures and Shoreline Master Program Guidelines (AB2000 -050). Councilmember Dawson added a comment regarding the ordinary high water mark. She added, "...for tidewaters for federal law, state definition appears outdated." The committee asked that question of Barry Wenger, who stated there was case law regarding that issue. He agreed that it needs to be in the document. It would be good to have it defined. Nelson questioned whether they are sending the letter from the Council or as individuals. McShane stated he wanted to send it from the full Council. It will go before the Council at the evening meeting. 2. DISCUSSION REGARDING THE POSSIBLE FORMATION OF A SURFACE MINING ADVISORY COMMITTEE (SMAC) (AB2000 -069A) McShane stated they want to discuss the possible formation of the surface mining advisory committee (SMAC). If they chose to create the committee, they need to decide its membership and scope. Sam Ryan, Acting Planning and Development Services Director, stated questions were asked at the last meeting regarding fees. She listed those fees. They budgeted about $35,000 for the year 2000 for the mining fees they take in. Each year it will gradually be less as they consolidate. There are three pending applications in the mineral resource lands (MRL). Five more are expected later this year. Only two administrative permits have been issued to date. All of the three pending applications are expanding activities and in current MRL. There has not been any rezone applications in the MRL. Both of the two permits issued to date are expansions. There were 11 registered compliance cases since 1992. The list of compliance cases doesn't include things resolved over the phone. Brenner questioned whether the list includes complaints about violations happening at night. Ryan stated it would if they follow up on the complaint. Two of the eleven complaints are repeats. Sometimes the problems scan be resolved over the phone, and some need fieldwork. Some fines have been levied. Nelson asked if any complaints are from MRL areas. Ryan stated two out of the eleven were in MRL areas. Natural Resources Committee, 2/22/2000, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 McShane stated he would like the committee formed because they will continue to have this problem come up repeatedly. He wanted to make sure permitting remains an administrative decision in the MRL. That is the intent of the MRL. The question is if the rules, as they are now, are good enough for the comfort level of the administration. Hoag stated she attended the meetings when the MRL was formed. She recalled the conversation and that anything controversial should be run through the conditional use permit (CUP) process. It was stated at that meeting that there is no reason that simple applications should be run through the CUP process. There was a lot of hesitation by some of the councilmembers to forego the CUP process. The process can be appealed. When they designed the MRL, they did not do environmental review at that point. They only went through the Comprehensive Plan criteria. The Council was told that adequate environmental review would be done at the time of the application. They should not shortcut that process. Something that is in an MRL does not mean that it is in an appropriate place for mining to occur. The process that was created should protect people living next to the MRL. Nelson stated that, when the MRL was done, many pits were already designated. He questioned whether any MRL was not previously permitted. Doug Goldthorp, Senior Land Use Specialist, stated they all had previous state reclamation permits. Nelson stated they were all current MRL operating mineral resource lands. Goldthorp stated they were all interim, except for a few. Nelson asked about the process. The Growth Management Act (GMA) required them to identify mineral resources lands. He questioned the intent of GMA and the County going through the process of identifying the MRL. Goldthorp stated the GMA required the County to protect a certain amount of resources for a certain period of time. Nelson questioned whether they have done an evaluation of the resources that are available for the county and for capital facilities planning. Goldthorp stated he didn't know if they had or not. Ryan stated the capital facilities work is being done now. McShane stated the Department of Natural Resources is undertaking a study that may supply that information. Nelson stated that if they are going to form an advisory committee, they should have all the information available for that committee. Hoag stated she served on the mineral resource subcommittee of the land use study commission. They dealt with the GMA and the designation of MRL lands. GMA intended that the County would designate MRL for twenty years of growth and protect the lands from incompatible lands moving in next to them. That isn't what happened in Whatcom County. What happened is that if someone had a permit for a mine, they had to apply for a mineral resource designation, rather than the Natural Resources Committee, 2/22/2000, Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 County preserving mineral resource lands with no incompatible uses nearby. Whatcom County planned for 50 years of growth instead of 20 years. The County did an aggregate study, and the designated MRL was exceeded quite a bit. Nelson asked why that wasn't challenged if it didn't comply with GMA. Hoag stated it did comply; it went above and beyond GMA intent. In terms of the process, it followed the letter of the law, but it didn't follow the intent of the law. The ideal was to look at where the resources are that did not have competing uses nearby, and set them aside to be available in the future. The County did not meet the ideal, but went above and beyond setting aside enough resources. McShane asked if the County has a working decibel meter. Goldthorp stated they do. They bought it about a year ago. McShane stated a mine owner has to submit a reclamation plan to the DNR. He asked if the County has any regulatory authority regarding reclamation permits. Goldthorp stated the permit has to comply with the zoning code, through the state approval process. McShane asked if Goldthorp makes sure that the plans match the zoning. Goldthorp stated the County approves that form. Hoag stated there was a problem because the form only asks if the plan is compatible with the zoning, but the form doesn't get specific enough. McShane asked if Goldthorp reviews the form. Goldthorp stated he does. McShane asked what guidance is used to fill out the form. Goldthorp stated he uses the County code and the Comprehensive Plan. McShane asked of the code is often vague on its direction. Goldthorp stated it isn't common, but it has happened. It depends on the site and the physical circumstances, the type of proposed mining, and whether it is an expansion or new reclamation. A variety of factors figure into how deep they go into reviewing compliance with the zoning code. McShane stated that a concern is about notification of project approval. Goldthorp stated they do notification of the proposal. McShane asked if they send out notification of the determination. Goldthorp stated they do not. Dawson questioned who would develop the program for the advisory committee. McShane stated the Council would determine the membership and what the committee should addressed. Nelson stated he was concerned about setting up committees when there is a process already in place. If a committee is set up, they should look at the whole issue of the MRL. They have only had two complaints in the MRL. The County's department has done a good job. The mineral resource people have tried to Natural Resources Committee, 2/22/2000, Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 comply. They are regulated not only by the County, but also by other agencies and jurisdictions. He understood the citizen concern around MRL land, but they have to be careful opening this up again. The advisory committee needs to have specific direction and scope. They should not open up the process all over again because they've gone through the GMA process already. Sylvia Goodwin, Planning Division Manager, stated the law requires they notify everyone within 1,000 feet. Anyone who wants notification of a decision can ask for one. If the Council wants to send the final decision to everyone, they don't need to change the code. It might need a supplemental from the budget. A concern is that if they automatically send it to some and not others, the County would still be criticized. Hoag moved to recommend to the full Council that they give direction to Planning and Development Services to notify all parties of record when a decision is made. Goodwin stated they would need clarification on what constitutes a party of record. Hoag stated she understood that a party of record is someone who made a comment and was notified. Nelson stated he would not support that. Someone from across the county would have the power to comment. That is not appropriate. McShane stated they need to recognize there are very valuable deposits that will be located in certain locations that may only be where people are living. There may be tremendous opposition in that area, but it may benefit the community as a whole. Nelson questioned how that would affect the County's decision and if the County does that already. Karen Frakes, Senior Civil Deputy Prosecutor, stated parties of record are those involved with the process, not those who have only received notice. In a typical Hearing Examiner hearing, anyone can come into the process. Anyone who comments in writing or in person, regardless of where they live, becomes a party of record. Hoag stated there are two things happening. One is that a person becomes a party of record if he or she comments on the record. The other is the County is automatically required to notify everyone within 1,000 feet of the proposed use or expansion. Both parties should receive a notice of decision. It is important to notify those within the area of the decision because their appeal rights rest on appealing within a certain amount of days from the date of the decision. Frakes stated that because a person lives in a certain area doesn't mean they have the right to appeal if they don't take part in the administrative process. Hoag stated the administrative process doesn't allow for public input in the mineral resources permit procedure. Application is made, there is an administrative Natural Resources Committee, 2/22/2000, Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 approval process, and then the public has the right to appeal the administrative decision. McShane stated this is something he would want the committee to deal with. He would not support the motion. Brenner stated it seems that they would be in a better position by having the broadest ability for people to comment and appeal rather than having people come back, since this issue is so contentious. Councilmember Dawson stated the neighborhood is important, and any variance becomes contentious. However, the County has limited resources and it would not set a good precedent. Brenner stated the cost to the County is negligible compared to the benefit of letting people in the neighborhood know. Councilmember Crawford stated he was not in favor the motion. The proper motion would be to turn it into a conditional use permit process. What Hoag is suggesting is taking the administrative use process and turning it into a conditional use. If the County has to notify everyone of every decision the Hearing Examiner and the Council make, they might as well mail to everyone in Whatcom County. Hoag stated Councilmember Brenner argued against making it an administrative use in the first place. They were assured the public would have the same rights as they do in the conditional use permit process. Providing notice to people who are going to be impacted involves mailing a few postcards. Those people don't know how long they have to appeal. A pit lasts 20 to 30 years. It is not okay for people to not have the opportunity to appeal. Nelson stated he would support the motion if it was restricted to the people within 1,000 feet. Hoag asked if they are legally required to notify those who are parties of record. Frakes stated that would be logical. Hoag amended her motion to notify the people within 1,000 feet when a decision is made. Nelson stated it is worth looking into and he would support it going to the full Council. Goodwin stated the ordinance that was adopted made it clear that the appeals are for any party of record. She didn't know whether or not that is what they agreed to, but that is what they adopted. Nelson asked if they receive notification of the final decision. Goodwin stated they do not. Nelson asked if they receive a timeframe. Frakes stated they are told the timeframe in the notice of application. Natural Resources Committee, 2/22/2000, Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Goodwin stated that anyone concerned should comment and become a party of record and would then receive a notice of decision. Hoag stated that what they were told the process would be, and what actually happened, are two different things. Frakes stated it appears that is what is written in the code. She suggested the Council direct staff to notify all parties of record of the final decision. Hoag stated the people within 1,000 feet need to be notified, and they need to look back to the meetings where this administrative approval process was set up to see if the code and procedures match what they are told it would be. Nelson stated they need to have a clear understanding of what they want to do. It should be put into the committee. Hoag restated the motion to expand the notice of decision to the people within 1,000 feet. feet. Nelson questioned whether the motion was to only notify those within 1,000 Hoag stated that was correct. Motion carried unanimously. Hoag questioned what it takes to become a registered compliance case. Goldthorp stated a citizen has to fill out a citizen's inquiry form. A case is established and follows an enforcement procedure. Staff generated four of the eleven complaints. Seven cases were initiated when a citizen filled out a complaint form. Hoag questioned whether a complaint would still be included in the compliance list if staff determined that there was no compliance issue. (Clerk's Note: End of tape one, side 8.) Goldthorp stated a complaint would still be included in the compliance list if staff determined that there was no compliance issue. Hoag asked what would happen if someone didn't fill out a written complaint form. Goldthorp stated most of what he gets are just inquiries. If there is a problem, he would try to deal with it over the phone or with a site inspection. Hoag stated people should understand there are more than 11 complaints. There are a large number of complaints. Goldthorp stated it sounds as if people are calling Hoag and not him. Most of his calls are inquiries from people asking about zoning status, terms and conditions of the permit, and other such information. Hoag stated a constituent told her they had a complaint and became discouraged because they felt that the County was not following up on their complaint. Natural Resources Committee, 2/22/2000, Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Hoag questioned whether Goldthorp notifies the pit operator before he inspects the site. Goldthorp stated he didn't ordinarily set up a date and time with the company. If the problem repeats itself, and people keep calling, he will go to the site and check out the problem. He will call the operator after the second complaint and notify the operator of the complaint. If the problem continues, staff will generate a compliance case. Hoag questioned whether the County was properly protecting its citizens from operators who are violating their permits. It doesn't seem the County responds when there is a problem. People get very discouraged and she wanted to make sure the County has systems that allow proper protection for the people living in the area. The committee should look at a better way to respond to complaints. Goldthorp stated noise is very difficult to enforce. The staff has spent a lot of time discussing how to enforce noise levels. They have to witness the violation. They now have remote ability to leave the decibel meter onsite 24 hours per day. It is very useful. They can monitor noise all the time. If problems are not corrected, they can enforce the regulations. However, they only have one machine and one person who knows how to operate the equipment. Hoag asked what happens when an owner violates the regulation. Goldthorp stated he notifies the owner who is given a timeframe to correct the problem. Brenner questioned whether it would be possible to follow up with the complainant to see if they are satisfied. Goldthorp stated that was possible. Nelson stated Hoag is assuming the staff isn't doing their job. He doesn't believe that. When he receives calls from a citizen, as Hoag has, he made sure he received a response from the staff and then he contacts the constituent. The pit operators are heavily regulated. Everyone needs to learn to work together. If not, it doesn't matter how much they are regulated. If they don't learn to work together, they will create more problems. They are not trying to help the County staff. Councilmember Hoag assumed the noise level is excessive. It could be that it is only excessive in the eyes of the beholder. If the allowed noise level needs to be changed, that is a different issue. They have a staff with limited capabilities. When there are only 11 officially filed complaints in seven years, they are beating a dead horse. The pits have been there for years, and the neighbors built their homes on mineral resource designated land. The issue is the same as with forestry lands. He asked if they are looking at specific items to address, or if they are looking to slam the staff and tell them they are not doing their job. McShane stated they couldn't come up with any sort of solution in this committee. There is a question of whether they need to come up with a solution. That is why they need to discuss whether they need to form a SMAC. Specifically, they should address whether the Comprehensive Plan is adequate guidance for staff to make its decision. The staff needs clear guidance. Nelson asked what in the Comprehensive Plan is not clear to the staff. McShane stated the Comprehensive Plan is a general plan. That is an underlying problem when one is doing permitting. Codes could be changed to match the Comprehensive Plan and be more specific. Natural Resources Committee, 2/22/2000, Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Goldthorp stated the Comprehensive Plan is used when interpreting the code by looking at the intent. Ryan stated there are differences of opinion as to whether the current regulatory actions meet the intent of the Comprehensive Plan and the codes that are adopted. The question is whether they need to create a committee to look at that. She was comfortable there was compliance. McShane stated the Comprehensive Plan does say the committee should be up and running, but it is not there. Nelson asked if there has been a problem with interpretation of the Comprehensive Plan regarding regulatory compliance. Ryan stated there has not. Nelson questioned whether there could be citizen concerns. Ryan stated that was correct. Nelson stated he wanted to know specifically what they are looking at that has generated the citizen concern. Hoag stated the Comprehensive Plan calls for the committee to be formed. To not form the committee goes against the Comprehensive Plan. She asked about liability bonding. She questioned how they determine the adequacy of liability bonding for reclamation and damages to other peoples' property. It is something the Comprehensive Plan calls for. There is language that says the bonding must be required, yet there are many citizens who have said the bonding amounts are not adequate. The language in the code says there must be adequate coverage. She questioned who determines whether the coverage is adequate. She also questioned whether bonding was required for existing MRL or only for new applications for MRL. Goldthorp stated there is not clear guidance for establishing bonding. The standard has always been 125 percent of the cost, but the cost of what is in question. He assumes it is the cost of the operation. In certain situations, that is clear. In others, it is not. Hoag asked who makes that determination. Goldthorp stated he does. He requires 125 percent of the cost. Hoag questioned what cost he is requiring 125 percent coverage of. Goldthorp stated the code is not clear on that. Hoag stated this is another reason for a committee. Nate Kronenburg, citizen, stated in 1996 there were 250 written violations of a gravel pit, submitted to the Planning Department. Those were not followed up on until the citizens hired their own attorney and pushed the department to go to the Hearing Examiner. The case came to the Council, and then went to Superior Court. The citizens won the case. The citizens have given up reporting the violations because they are discouraged. Nelson asked about the violations. Kronenburg stated the specific site was making many violations. It was a site in the south Everson area. Natural Resources Committee, 2/22/2000, Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Nelson asked Goldthorp if that was correct. Goldthorp stated the site is the Kelley Enterprises site on Mission Road. Over the course of time, Mr. Kronenburg compiled a list of what he considered violations. He submitted that list to staff. They took that list of complaints and treated it as one specific case. Kronenburg stated it had to go to the Hearing Examiner. Hoag stated the Comprehensive Plan calls for the committee to be formed. Mr. Goldthorp has testified he doesn't have clear guidelines on one of the issues she is questioning. She didn't understand the resistance to forming the committee. She moved to form a citizen advisory committee and that the Natural Resources Committee holds a work session to draw up a list of what they would like to see addressed by the committee and what the membership would be. Nelson stated he would support it when he knows what the scope will be. They have formed committees that have vague scopes and they end up running amuck. If they don't take the right action, other committees are formed to counteract the first committee. Then, state legislators become involved. They need to be clear on the responsibilities, then look at the membership of the committee. Hoag stated that is why they need a work session to get this ironed out. Motion carried 2 -1 with Nelson opposed. ADJOURN The meeting adjourned at 12:03 p.m. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dan McShane, Committee Chair Natural Resources Committee, 2/22/2000, Page 14