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HomeMy WebLinkAboutNatural Resources March 10 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 WHATCOM COUNTY COUNCIL Natural Resources Committee March 10, 2000 The meeting was called to order at 10:06 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 COMMITTEE WORK SESSION 1. DISCUSSION REGARDING THE POSSIBLE FORMATION OF A SURFACE MINING ADVISORY COMMITTEE (SMAC) (AB2000 -069A) McShane stated that there are a couple of things happening for which the creation of a surface mining advisory committee (SMAC) would be helpful. There will be a Department of Natural Resources (DNR) gravel study coming out. There should be a committee to review that study. Another reason for creating the SMAC is because the Comprehensive Plan called for it. There are a number of action items in the Comprehensive Plan that need to be addressed by a committee. There are good suggestions by Lesa Starkenburg - Kroontje that are outlined in her letter. Specifically, her letter stated three of the twelve action items would be items that the SMAC should concentrate on. The goal of this work session is to determine what a SMAC would address, and who would sit on the committee. (Clerk's Note: The committee took a short break to read Starkenburg- Kroontje's letter.) Hoag stated she wanted the DNR gravel study looked at and to get going on the other study that the Comprehensive Plan mandates. It is not the role of the SMAC to do the study called for in the Comprehensive Plan, but the SMAC needs to review it. There are a number of things the SMAC should do to begin with. There are other regulations from other locations that could be reviewed so the SMAC doesn't have to reinvent the wheel. Also, there have been a number of complaints regarding gravel operations. She wanted to discuss how best to approach those complaints and whether or not a SMAC should look into whether the current regulations are either insufficient or not enforced. Also, she wanted to review the concerns from citizens about action items in Comprehensive Plan that are not being enacted. She agreed with some of the suggestions in Starken burg- Kroontje's memo. She requested a staff report. Roland Middleton, Land Use Manger, stated Mr. Skinner brought forth many issues that aren't covered under Title 20 and the development standards. A Special Natural Resources Committee, 3/10/2000, 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 decision was specifically made to not duplicate the regulations that the state handles, such as blasting regulations, over which the Department of Labor and Industries (L &I) has jurisdiction. The reclamation portion is handled by DNR. The County does have jurisdiction of performance standards that were left after the decision was made to put these things into Title 20. Staff wants to know if proposed regulation changes are to be run through the SMAC. If the SMAC takes a while to be formed, any proposed changes should be run through the Council immediately, without waiting for the SMAC to be formed. Those changes include legislation regarding non - conforming uses. There are old pits that have been out there for quite a while without any conditional use permit and are not in a mineral resource land (MRL) area. They don't have state permits, but are legal because they are legally nonconforming. The County staff has a difficult time with those situations and would like to eliminate nonconforming pits and bring them into a permit by conditional use or get them into an MRL. Some of the nonconforming pits can operate for years without public review. He and Doug Goldthorp struggle with that. As the proposed SMAC is being brought forth, Planning Division Manager Sylvia Goodwin has held off on running those items through the docket, to see if the SMAC should review them. The staff is anxious to get this going. McShane stated County Code section 14.06, MRL disclosure, was one of the items. He asked if the County should require mine sites to be mined every year to maintain their nonconforming use. Middleton questioned whether the mine would have to produce a bucketful, a wheelbarrow load, a truckload, or be an actual operation. Middleton stated a nonconforming use goes with the parcel of land, not the activity of the mine. If one has 250 acres, and mines in two -acre increments, one could mine the entire site without review as long as the owner is doing reclamation. That is the way the code is written now. That was challenged through the Hearing Examiner and on up the chain for a very notable quarry on Lummi Island. There was a great deal of legal wrangling. A decision was made and upheld with regard to that. Under the code now, one can operate large mines without review. Lesa Starkenburg- Kroontje, Sand and Gravel Association attorney, stated the County elected to handle nonconforming uses in 1992 by limiting the rate of extraction. If one wants to take out more than the average amount, it would trigger the permit process. The County also limited accessory uses that could take place. Nonconforming pits are limited by what can be an accessory use. Performance standards apply, but it is confusing to property owners to know what activity will happen in the future. The proposed changes to nonconforming uses are on the right track. If the SMAC is going to handle review of the regulations, it needs to still be within the confines of a larger regulatory program. Hoag stated forming the SMAC is important to do, as much as it can be used to assist the Council. If there are known problems in the industry, they should come forward. Anyone who will serve on the SMAC is free to speak to the Special Natural Resources Committee, 3/10/2000, 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 problems. Waiting for the SMAC formation should not hold up anything that needs to be addressed now. A problem with nonconforming use is that people don't think about the activity moving around. The focus on whether or not it is an appropriate use and how it will impact neighboring uses is always on where the owner will put the two -acre mine. They don't anticipate that the activity will move later to another area of the property. That seems to be the problem. Middleton stated the County hopes to eliminate the ability of the owner to move anywhere on the parcel. They hope to create a review process to move the mine anywhere on the parcel. McShane stated he would be inclined to have it come forward without SMAC review. The SMAC would address the Comprehensive Plan, which is a separate issue. Hoag asked if some of Harry Skinner's comments were not covered in Title 20. She questioned whether the DNR does reclamation on pits less than three acres. Middleton stated they do not. The County has virtually no authority regarding reclamation. There are only the performance standards. Hoag asked if the lack of County authority is because the authority is not granted by the state, or because the Planning Department doesn't have authority because it is not in the code. She questioned where the County lacks the authority. Middleton stated the state law stops at three acres. The state has reclamation jurisdiction over anything that is part of the Surface Mining Act. The County has development criteria and performance standards, the Critical Areas Ordinance (CAO), and the Uniform Building Code for fill- and - grade. These laws give the department its direction on reclamation. Hoag asked if it was correct that the code doesn't address reclamation. Middleton stated that was correct. Based on current code, he can regulate such things as the slope and the way wetlands are protected. However, he can regulate for what the land is used. Hoag asked if the SMAC could look at changes to the code to make reclamation work better. Middleton stated it would help the staff. The better the regulations that exist, the better enforcement they could do. If regulations are not specific, they don't help the staff. McShane stated the SMAC should clear up regulations on reclamation for pits under three acres. Starken burg- Kroontje stated the only way to get a permit for three acres or less would be through the conditional use process. The Hearing Examiner looks at criteria for the conditional use to be granted and can establish conditions at that time. The code provides, depending on the underlying zone, some guidance for Special Natural Resources Committee, 3/10/2000, 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 reclamation. In the agricultural zone, owners of surface mining for three acres must submit a reclamation plan to the County providing a list of requirements. That is Whatcom County Code (WCC) 20.40.165. It includes thing such as stockpiling of topsoil, seeding topsoil, time limits for topsoil storage, limitations on handling wet topsoil, and many others. It also requires that the Conservation District approves a reclamation plan. The district could make requirements of approval that lead to County approval and a permit. That detail is not in the rural zone section. Middleton agreed. That is also for any conditional uses that would be coming the County's way, not the permits that are already in place. McShane asked if this would be applied to pits greater than three acres. Middleton stated it would not. Alvin Starkenburg, Starkenburg & Wiersma Excavating and Gravel, stated there is a difference between those pits coming in to a conditional use process and those that are nonconforming. The problem is with the pits that are nonconforming uses. Everything is in place for the new ones. It might be simple to bring the nonconforming uses up to standards without reinventing the process. They could make those standards applicable to all existing nonconforming pits by a certain date. Middleton stated they are not looking at increasing the standard for those being done in the agricultural zone. The small three -acre pits are not a concern because of code section 20.40.165. Hoag asked how the County checks to see if the reclamation plans are being done properly. Some mines are not following the code regulations. She has received complaints. Middleton stated they do follow up, and some neighbors don't see that the County has done anything about their complaints because the neighbors don't see the enforcement action. The County is legally battling one particular mine. The County has spent many staff hours getting the mine into compliance. Neighbors don't know that unless they call and ask. Starkenburg - Kroontje stated that project was operating on a fill- and -grade permit, so it was not complying with any surface mining standards. She didn't want the legitimate operators who are meeting the codes to be given black eyes because of the sites that are not following the regulations. McShane stated he wanted to make sure that the operators who are doing a good job are allowed to operate on a level playing field. Hoag stated the SMAC could look at mines resulting from fill- and -grade permits. Middleton stated the County staff is working on that. Starkenburg - Kroontje stated it is a matter of consistence in enforcement rather than a need to revisit the codes. There are already definitions for fill -and- Special Natural Resources Committee, 3/10/2000, 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 grade and surface mining. It is a matter of whether someone is taking advantage of the situation. Hoag wondered if the SMAC could review that issue to make sure they don't end up with mines coming in under fill- and -grade permits. Middleton stated they are trying to button that up. He would appreciate any help the staff can get to do that. Fenton Wilkinson, 7101 Goodwin Road, Everson, stated he wanted the planning department to look into the enforcement of reclamation by the DNR on pits over three acres. McShane stated he was familiar with DNR pit reclamation enforcement. It is abysmal. He heard from one DNR staff person who concurred. Wilkinson stated the numbers from DNR indicate that there are zero pits in Whatcom County that have ever been reclaimed. Of the exiting permitted permits, DNR says 25 percent were in default of reclamation regulation. He was told that DNR doesn't do enforcement. They contract enforcement out to bonding companies. The Revised Code of Washington (RCW) 78.44.050 says that the DNR shall have authority to regulate reclamation. It also says the DNR may contract out enforcement. The County has the opportunity to take that on at the County level if appropriate. The other issue he wanted looked into is about the DNR estimate of pits that are reclaimed as recreational lakes being 30 percent. Part of state statute RCW 78.44.091(1)(A) is criteria that reclamation use be a conforming use under local land use law. In the agricultural and rural zone, a manmade recreational lake is not a permitted or an accessory use. Pits operating under a reclamation permit, with a reclamation lake, are inappropriate pits. Regarding grandfathering, the statute says that approval of a reclamation plan by DNR shall not vest the subsequent use of the land. Problems with recreational lakes include how they will be developed, what will be done with them, how they fit in, pits that are digging below the water tables, depletion of water table, and potential contamination of water. The advisory committee should review the issue. Hoag asked if DNR sends a proposed reclamation plan to the County planning department and asks if the proposal matches the land use. Wilkinson says there is a form that the DNR sends to the County as a part of the DNR permitting process. Hoag asked if the use is vested if the County planning department signs the form. Wilkinson stated he didn't think so. County staff cannot make something permitted or an accessory use by signing something that says it is. Starkenburg stated he wanted to see the claims in writing that were made by the DNR person regarding the fact that no pits in the County have been reclaimed, that 25 percent are in default, and the ability for enforcement can be done by others. He has worked with that DNR person for 15 years and knows him well. Special Natural Resources Committee, 3/10/2000, 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 There is something wrong with Wilkinson's verbal statement. The DNR statement may have been in reference to a particular area or something else, but that is not what is happening out there. Several companies have had extensive reclamation work done. Starkenburg - Kroontje stated DNR releases a pit from its jurisdiction when they are ready to release the bond. Mr. Van Boven has one pit that is reclaimed, and is waiting for the release of the bond. McShane stated some mines are doing a fantastic job of reclamation. His impression with the gravel association is that the pits are doing a good job. Hoag asked if everyone agreed that the SMAC should look at this. McShane stated he was inclined to think so. Starkenburg - Kroontje stated the SMAC should not try to reinvent the wheel by attempting to change things today that started 30 years ago. They can't bring those things forward. They brought forward what should happen in this SMAC, to include getting a coordinated and consistent approach to regulation and to eliminate the unnecessary regulations and permits. That will entail that all regulations are placed on the table. They will then filter through duplicative regulations and regulations with holes. There should be more firmly developed regulations with DNR and the state Department of Ecology (DOE). The idea of having the County take over reclamation responsibility from DNR has been discussed before. It can be discussed again. Regarding vesting, if a pit owner turned in a permit to DNR ten years ago, and the permit, which the County may approve, may show that the property would be divided into two -acre lots. However, the owner could not claim a vested right to do two -acre lots if the County changes the zoning to R10, for instance. The lake concept is different. Most lakes were approved years ago or already created on consolidated permits that came forward. Harry Skinner, 6600 Goodwin Road, Everson, stated the role of this meeting should be to discuss the advisability of an advisory committee. McShane stated ultimately, this committee will bring forward a recommendation to the County Council of where it want to go regarding the SMAC. They will recommend the SMAC membership and scope of work. Skinner stated there is a regulatory gap between the County and the DNR. It can be fixed, and the SMAC can deal with that. The role of the SMAC has to deal with surface mining permits and also rock quarries. The County owns approximately 50 gravel pits that are smaller than three acres. The planning department might do an inventory of those. Special Natural Resources Committee, 3/10/2000, 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 (Clerk's Note: End of tape one, side A.) Skinner continued to state that the status of those pits might be an issue. Regarding the makeup of the committee, Mrs. Starkenburg - Kroontje's preparation is very good. It helps them to know where everyone wants to be. It would be appropriate to not have industry people sit on the SMAC, unless they are non- voting members, when there is a direct conflict of interest. The input from the industry has to be there and should be welcome. In terms of a regulatory committee that passes regulations relating to how the industry affects the pit owners' bottom line, it is a built -in conflict of interest. The idea to research what other communities have done is helpful. The SMAC may want to do a survey of different categories. The scope is about a series of impacts that have not been addressed. A survey of the relevant issues is a big job. Starkenburg - Kroontje stated she was on the second SMAC. They started in 1994. Jeff Griffin was the planner assigned to that SMAC. She has boxes of information on regulations of other communities that was passed through the SMAC at that time. The Growth Management Act (GMA) was just passed at that time. Griffin requested regulations from a number of jurisdictions. From that information, they developed the current regulations. She was hesitant to start all over. There is a list of action items in the Comprehensive Plan. The Council needs to come up with a priority of how the action items are brought forward. They need to have a process to begin and end. If they are going to go right back to reviewing other regulations and start from scratch, they are never going to finish. They are going to leave all the other action items on the table. Skinner stated they need to distinguish between goals and policies in the Comprehensive Plan. Those regulate the land use decisions. Those do not deal with the subject of construction and operating a mine. The current regulations and regulatory programs relate to direct physical, graphic, and numerical regulations on which a permit can be issued and enforced. If they are referring to goals and policies in the Comprehensive Plan and calling them regulatory items, those are a separate subject. He is talking about the way mines are developed and operate. Hoag stated the Municipal Research Center (MRC) sent the County the codes from other jurisdictions. It would be appropriate to have review them. If there are similar problems in other jurisdictions, those jurisdictions may have an appropriate solution. Whatcom County shouldn't reinvent the wheel. Regarding setting priorities, the SMAC should begin with where it knows there are problems and where it has had complaints. The SMAC should look at how to solve those problems and whether there is regulation that exists now. The SMAC should begin with the list from the citizens about items in Comprehensive Plan that are not showing up in the development regulations. The SMAC should come up with the priorities of issues that are not being addressed. This is supposed to be an ongoing advisory committee and should deal with the most important things first. The SMAC should also create better communications between the planning department Special Natural Resources Committee, 3/10/2000, 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 and the Council. They don't hear much about mineral resources from Doug Goldthorp. Wilkinson stated he appreciated Starkenburg - Kroontje's comments about not starting all over on the SMAC scope. He acknowledged the work gone into what they have. McShane asked if they should start with the Comprehensive Plan action items. Wilkinson agreed. Action item number five, regarding development standards, is the one Starkenburg - Kroontje is trying to avoid. They do have a process that is intended to address the conflicts between neighboring land uses. The problem is with the conditional use criteria. In the Whatcom County Code, section 20.84.220, it says that the staff must determine that it will not avoid uses, activities, or processes that will be detrimental to any person by any reason of excessive production of a number of things. There is no guidance about what excessive means, to set expectations for residents. If a definition of excessive is established, there will be fewer fights than there are now. They need to develop better objective criteria of the permissible negative impacts of a project. There are specific issues that are not now addressed. One issue not addressed is the devaluation of neighboring property uses. That is identified as an adverse impact of surface mining activities. The SMAC can address that issue and deal with the devaluation of property value issues. Another issue is of road wear usage and fair allocation of the cost of maintenance. There may already be regulation that takes care of that. He hoped that the SMAC would establish a better dialogue between landowners and the industry. Starkenburg stated much time has been spent on this already. From 1990 to 1993, an extreme amount of information was brought forward and regulation came out of that information. After that, they began again in 1994. At that time, they addressed this issue again for the Comprehensive Plan. He didn't understand why they need to revisit what other communities are doing. There are some limited issues that need to be reviewed, such as nonconforming uses. When he hears that the SMAC will go forward without industry representation, it is the same as telling a farmer how to build a building and how to use his land. By adding more legislation, the reality is that the cost of the material will go up. If that is the goal, then it should be stated. That does not serve the younger generation and the public. Because of all the work done over the years, DNR has moved forward with more extensive regulation. A few pits have not become conformed with the more extensive regulation, so there are deficient pits. The pits in the DNR program are much different today then they were. That is a result of all this work, but people cannot expect to see it happening immediately. It is in the process of unfolding. There are tight regulations with different agencies. What they are seeing and talking about has already been happening, but they have to allow it time to go through the system. Special Natural Resources Committee, 3/10/2000, 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 Hoag stated the information that came forward to the previous SMAC is how they came up with the goals and policies that are not being carried out. They don't want all of that effort to go to waste. McShane stated one issue raised is about the administrative decision when one goes through an MRL application. He questioned whether the criteria were objective and about the process they use to evaluate an MRL mine with residential neighbors in the vicinity. He was comfortable with the regulations in areas where there are no neighboring residents. Middleton stated the rock is where they find it. The public process was fought contentiously, and included many lawsuits. They assimilated those issues into an administrative approval process. That process is not discretionary. If one meets the criteria, the County has to award the permit. McShane asked how they objectively evaluate the criteria regarding the impacts to neighboring properties. Hoag asked if they are talking about the permit to mine in an MRL. McShane stated that was correct. Middleton stated designating an MRL goes to the Planning Commission and there are public hearings. Traffic, as an example, is one issue. If the mine puts 100 trucks per week onto an adjacent road, it sounds like a lot until they look at the fact here are already 400 dairy trucks and 600 logging trucks on that road. The County is left with the concerns of the neighbor and the rights under the code of the individual to develop a property in a designated MRL. The County staff goes through the criteria, which has as much science as they can bring into it. The staff is as straightforward and honest as possible to everyone involved. More often than not, no side gets everything they want. McShane stated that after the gravel study comes out, they might need to look at how they are going to do the MRL designation in regard to the underlying zoning. He was a proponent of large MRLs as long as they don't interfere with underlying property uses. Middleton stated some of the people who are concerned about the MRL designation were not there when the designation was made. Now, they have to deal with the administrative approval process. It was established at the time that they would up -front the public process. Once the MRL was established, it would be relatively easy for the permit to be handled. The applicant only had to meet the criteria and would not have go through the public process again. An MRL that is established may not be mined for 20 years. McShane questioned whether there are MRL areas that are currently not permitted. Middleton stated that is correct. Special Natural Resources Committee, 3/10/2000, 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 McShane stated he is inclined to maintain MRL- permitted pits as an administrative approval. He questioned whether there are objective criteria that will work over the next 20 years. Hoag stated the SMAC should look at that. She disagreed with Middleton about the up -front public process on MRLs. When people objected to MRL designations during the Comprehensive Plan process, they were told by the lawyer representing the sand and gravel industry that all the concerns would be addressed during the permitting process and that no stone would be turned until it was determined that a mine was appropriate. All an MRL designation meant was that the resource was there and that it met the criteria for designation as an MRL. There was no up -front public process. In addition, the councilmembers indicated their intent that only the no- brainers be processed by administrative approval, and anything controversial would go to the Hearing Examiner. Mr. Goldthorp was not aware of that direction. He was surprised mining was not an outright permitted use because a property is in an MRL. He was not familiar with the criteria in the code. What was created and what is being implemented are two different things. The public is being told two different things. McShane stated his concern about objective criteria is the possibility of a reverse situation happening. Middleton suggested they make it all conditional use. Hoag stated that was discussed during the meetings. The Council was told it would be more efficient to make approval an administrative approval use and that it would be exactly like a conditional use. The approval is supposed to be going through the same process, it just has a different name and the decisions are being made by a different official, according to what they were told at that time. Starkenburg- Kroontje stated the public process to create the MRL was the up -front public process. It is true that no stone gets turned in the MRL until there is a permit. A permit requires a review. The reason for the administrative approval is because some of the permits don't require any public process beyond that. The way the Comprehensive Plan was adopted parallels exactly the Title 20 zoning that was adopted, which says to allow mining within the designated MRLs through zoning and the discretionary and administrative permit process requiring: 1. On -site environmental review with the County as lead agent, 2. Application of appropriate site - specific conditions, 3. Notification of owners within 1,000 feet, 4. Opportunity for input, and 5. Access to de novo review. If someone has a problem with the administrative decision, he or she could appeal it for de novo review to the Hearing Examiner. From the time the Title 20 zoning was adopted for implementation, Goldthorp began working on a form to be applied for the administrative permit. She couldn't believe there was a misunderstanding. Two permits have been issued administratively. One of those permits, in a rural zone, had no comment from the neighbor. The second was a new MRL with an existing permit. There was a slight Special Natural Resources Committee, 3/10/2000, 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 expansion. There were three comment letters, one of which was signed by three people. That was it. The idea that the public is not being heard doesn't fit with reality of what has been happening. Eight years ago, the Sand and Gravel Association suggested that there be a better working relationship between all parties, but it never went anywhere. Maybe that needs to come forward again. Skinner stated a win -win solution is possible. Detailed regulations can suit everyone. They aren't trying to create a hardship on the gravel mining industry. The amount of detail shouldn't be a put -off and threatening to the operation of mines. It protects everyone. Middleton stated he agreed. The staff needs more detail in the code. Starkenburg - Kroontje stated the difficulty is that the mining industry was there four years ago, and many of these issues are about an individual pit. It was determined that some things need to be left to the permit rather than the development standard. It is difficult to be standard and still recognize individual site standards. Wilkinson asked if Starkenburg - Kroontje held the opinion that the criteria in place now are sufficient and that no permit be issued until all the administrative use criteria in section .220 are met. Starkenburg - Kroontje agreed that all the criteria of section .220 have to be met. Wilkinson questioned whether Starkenburg - Kroontje agreed that a permit should not be issued if the permit process received ten letters from people testifying that the pit would be a nuisance and bothersome to the neighboring uses. Starkenburg - Kroontje stated the administrator has to weigh the evidence and determine the credibility of the evidence and what can be issued as conditions. If the nuisance is that it is going to be noisy, then the administrator can put conditions on that site that say the noise shall be limited at the site. Wilkinson stated paragraph three of code section 20.84.220 says that, before approving an application, there must be a determination that the activity will not be disturbing to existing or future neighboring uses. It does not say that the noise must not be excessive. It says it must not be disturbing. He questioned whether Starkenburg - Kroontje believed the use would be disturbing to someone who works a graveyard shift and has to sleep during the day. Starkenburg - Kroontje stated those are the questions that have to get answered. Special Natural Resources Committee, 3/10/2000, 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 Wilkinson stated those are the kinds of issues that point out the lack of substance. They need to flush it out. Starkenburg - Kroontje stated the County deals with that set of criteria daily when processing conditional use permits. Marilyn Bentley has written hundreds of staff reports. It is not a vacuum. Hoag stated she was talking about a use not being disturbing to neighboring uses to Doug Goldthorp when he was talking about the administrative approval. Goldthorp told her that they don't have to pay any attention to the criteria because it is in an MRL. If staff is doing an administrative approval, they have to apply the conditional use criteria. Doug Goldthorp was not aware of that. Jim Weedman, Whatcom Builders General Manager, commented on Starkenburg - Kroontje's action item number eight in her letter regarding developing a program for use of alternative materials for County projects. This industry has lead the way in something instead of been reactive. Since 1995, his business started its recycle program. Of the 99,000 tons of recycled asphalt, only one project required 1,300 tons of material. The market and technology has driven their decision to do this recycling. People use it for base material. They also recycle concrete. This is something that hasn't been forced upon them by an agency. It was market - driven. Also, it would be appropriate for County staff to be knowledgeable about alternative materials if that is going to be recommended. He didn't see how the SMAC, if formed, could ignore the thoughts and comments of the industry. Skinner questioned why Starkenburg - Kroontje left action item number five out of her letter. Starkenburg - Kroontje stated the Council is already looking at creating that SMAC. Planning staff indicted they already have the regulatory program. It was more appropriate to pick item number three, and item five becomes a part of that. The same is true with item eight. Items one, six, seven, and ten would be done by selecting number eight. Hoag stated item five would be the top priority. That item is where they are starting. The next item in priority would be item three. Item four would be the third in priority. The first portion of item four has been done, but the second portion has not been finished. Item eleven, completing a comprehensive aggregate study, would be fourth in priority. That is not in the realm of the SMAC, but it needs to get going. To be done well, the County needs time to do that. There needs to be some SMAC review. The fifth priority item would be item number 12. Nothing is being done to encourage river gravel removal. (Clerk's Note: End of tape one, side B.) Hoag continued to state that everyone says river gravel removal can't be done. The County is supposed to work with other agencies and jurisdictions to Special Natural Resources Committee, 3/10/2000, 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 allow that. The SMAC should review how it could be done. It may be an uphill battle in today's political climate, but it will not change unless they do something about it. Everyone wants it addressed. The sixth priority is item ten. Excellent high quality material should not be used for projects that can use lower quality material. The seventh priority is item number one. That would include County - owned pits. The rest of the items would fall after those items she listed. She questioned whether everyone agreed. Starkenburg suggested waiting on prioritizing until the state completes its DNR study. McShane agreed. Middleton stated that, regarding inactive pits, they are currently are working well with Public Works in bringing those pits in. A challenge is the DNR and the state Department of Transportation (DOT). McShane asked if DNR has been trying to sell any of their pits up here. Middleton stated he didn't know, but they have to pay their fees and revenues like everyone else. The County spends a lot of time calling Olympia trying to get them into compliance. Also, the purpose of the MRL district is to allow the type of activity that encourages and supports the opportunity for the extraction of minerals. If that isn't the case, the Council needs to change the code. If the staff receives comments in which there is conflict, they will deal with it. Regarding the complaint that the staff hasn't followed the regulations, he didn't know where they haven't done that. The staff has an attitude that the purpose of the MRL is for the extraction of minerals. Hoag stated that is not on target. The intent is to encourage, not outright allow, extraction. When they went through this process, she served on the Mineral Resource Land Advisory Committee with the Land Use Study Commission. They dealt with this issue regarding MRL designation. The purpose of an MRL designation was to designate deposits of known resource so it could be protected from uses that would conflict with that and would prevent them from extraction. The ideal is to find resources that are located where there are not conflicting uses and designate them as mineral resource lands. In Whatcom County, people with permits asked for their land to be designated as an MRL. All the designation was is an indication that the resource is there, but it was not an indication that it was appropriate to mine. If the land use staff is saying that a pit is appropriate because it is in an MRL, then the staff is not following the intent of the legislation. Middleton stated they want to follow the intent of the regulation. If the staff is reading it differently than it the way the councilmembers intended it to be implemented, they want to know that. Don Nielsen, 6287 Siper Road, stated he has used the recycled products from Whatcom Builders. It is excellent. A Whatcom County gravel pit is his neighbor to Special Natural Resources Committee, 3/10/2000, 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 45 46 the north. There are concerns on that pit and other pits. There is a health issue regarding wild hemlock. It is poisonous. He hoped people understood that it has killed children. Another concern is that there are six or seven pits in his area. The DNR permits these to be recreational lakes. He questioned what would happen with it. It is private property. His main concern is that they all wrestle with water issues. His main problem with this much water in these pits is evaporation and how much would be wasted. There are many pits in which water is not a problem. In his area, the recreational lakes have allowed DNR to get away from the responsibility of conserving the topsoil. The topsoil is gone. Hoag stated the issues they want to deal with have nothing to do with the DNR study, so she didn't agree on waiting for the DNR study. Tom Brown, 7024 Mt. Baker Highway, stated he was surprised to revisit an issue that they put away. He disagreed with Councilmember Hoag. Much of the Comprehensive Plan process is trying to be set aside for some reason. When the councilmembers discussed the MRLs, there were a lot more MRL areas submitted than what the Council approved. They used a criterion of population. They looked at the surrounding areas. He was in favor of dedicating far more MRL area than what the Council did dedicate. People need to know they are moving into an MRL area. He couldn't see how they would have a SMAC on mineral resources that didn't include the industry. If they reversed that idea, they would be in court. The SMAC needs to have a balance. Regarding the circumstances where the people in the area of the pit do not raise issues, if the area residents are satisfied, the County shouldn't need another process to satisfy people who are not located in the area. Hoag stated citizens brought forward concerns that the Comprehensive Plan goals and policies were not being implemented, including the creation of a SMAC. Also, the condition of a pit not being allowed because it doesn't meet the criteria was not about whether it was appropriate to mine, but whether or not the mine meets the MRL criteria. Brown disagreed. Part of the discussion during the Comprehensive Plan development process included whether it was appropriate to mine when there a certain amount of people are located in the area. He remembered that discussion happening several times. There were areas that did not meet specific criteria. Hoag stated that was not criteria about whether or not it is appropriate to mine. It was criteria about whether or not the area was to be designated as an MRL. It is important that everyone understands what the MRL criteria were. There were eleven or twelve of criteria. They were very basic criteria as to whether or not a property could be designated as an MRL, not whether one could mine in that area. Those are two different things. She listed some of the mineral resource criteria. The councilmembers did not look at a site and question whether it is an appropriate area to mine. They only discussed whether it met the criteria for MRL designation. Repeatedly, the industry stressed that this is just a designation and Special Natural Resources Committee, 3/10/2000, Page 14 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 the designation doesn't mean the area is appropriate to mine. Sandy Mackie said that. Dan Gibson said that. Lesa Starkenburg - Kroontje said that. They have not crossed that threshold in the MRL designation process. Brown disagreed. The councilmembers discussed specifically whether or not the areas would be appropriate to mine. Nielsen spoke on the issue of gravel in the river. He continues to see pockets in the river in which the river fills up higher and higher. The permit process has become difficult because of the salmon issue. It is much easier to go into gravel pits upland. The river is being ignored. This is a big mistake. The Canadians have proven that salmon and gravel extraction can coexist. McShane stated that issue was raised with the Flood Control Zone District Advisory Committee last fall. The County has been aerial mapping the river every year. There is a flood district staffing issue. Another issue is that they would have an evaluation of what is going on with the gravel budget in the river, especially along that reach. He believed that the river, in that reach, is depositing more than it is moving. Nielsen stated he was acquainted with two areas that have risen quickly. The gravel there has never been at that height before. They have not had floods of the proportion that changes the gravel. However, this gravel will move. It is a matter of being the right time. Cowden Gravel and Ready Mix has taken gravel from that area in the past. Steve Cowden, Cowden Gravel and Ready Mix, stated he spent $50,000 trying to maintain his rights on the river. He didn't desire to dig gravel and create lakes when there is 11 million yards between Deming and Everson that need to come out. That area has agraded seven to nine feet higher. McShane asked if they continue to survey the area. Cowden stated they don't because it is too costly. The County is at the bottom of the food chain of authority. The naysayers do not live here. They are far removed from it and don't want to discuss it. The County has done its part to make this a viable resource, but it has no authority over the river system. The County's only authority lies in shoreline permitting. The County has no control over several agencies. He has thrown all the money at it that he can afford to. Starkenburg- Kroontje stated the difficulty is that the river changes, which is why the County flies it every year. The Army Corps of Engineers and the Department of Fisheries, through their permits, require these extensive surveys and this extensive work. By the time they could get a permit, the agencies question whether the system has changed. In the past, the County did a lot of studies and developed a lot of information. The difficulty is to lobby that position to Special Natural Resources Committee, 3/10/2000, Page 15 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 the higher players. The amount they were willing to allow to come out was a wheelbarrow's worth. Cowden stated they went to Canada and hired people that were responsible for making Canada's river systems successful. He got the best advice he could get, but the local agencies did not read it. There is a proven record that it can be successful. Hoag stated this needs to be taken up in the SMAC. If they are going to have effective flood prevention and effective protection of farmland and to construct reasonable prices for gravel, they need to go back to the river. In terms of the salmon, she has seen many indications that it is better for salmon spawning if they are extracting appropriately. She asked when he left the bar. Cowden stated they left in 1997. They made the measurement a year ago. They have not had any major storm events. Hoag suggested they put together a rough draft of priorities for the action items and the items brought forward by the people at this committee meeting for people to review and respond to at the next Natural Resources Committee meeting. McShane asked to get everyone's name and address. Starkenburg - Kroontje suggested that multiple things come forward together. McShane stated he would put together a letter to everyone that was present for their review. He didn't see anything different than the action items in the Comprehensive Plan. It was just a matter of prioritizing the SMAC scope. That leads to a discussion of the make up of the SMAC. Somehow, the SMAC should get the DNR study. That should be a high - priority item only until they get the study or until a significant amount of time has passed. It may be important to have additional members, such as the DOT, brought into the SMAC that would have an interest in the DNR study but not the action items. This would be something for which they could provide expertise. Starkenburg - Kroontje stated the DOT should also be included in the discussion of the use of alternate materials. Hoag stated the recent Marine Resources Committee was set up to assign ex officio members, depending on the topic. Something similar could be set up with this SMAC. Starken burg- Kroontje stated the last SMAC committee had subgroups that concentrated on different issues. McShane stated he would propose a SMAC membership. In general, he agreed with Starken burg- Kroontje's suggestions. He wanted at least two industry Special Natural Resources Committee, 3/10/2000, Page 16 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 representatives. Also, he was specifically concerned about neighbors within 1,000 feet of MRL zones in the rural areas. The SMAC should address the juxtaposition of society wanting to protect mineral zones at the cost of those individuals who happen to live next to gravel pits when they didn't expect to. He suggested that two citizen committee members be individuals who live in the areas of the mineral resource lands. Hoag agreed with having two industry officials. Neighbors within 1,000 feet should be the majority of the membership because they are the ones that will be impacted. They know better than anyone what the particular concerns are. The industry officials that sit on the committee can address their concerns. When suggestions are brought forward, both the industry and the public has the opportunity to communicate. The previous SMAC consisted of a majority of average citizens, with at least three industry people. Another name she recognized was the Conservation District, which is an important aspect of the SMAC. Starkenburg - Kroontje stated the Council confirmed the names of the previous SMAC. The list Hoag read from included the people appointed plus their alternates. One state agency did not provide an alternate. They are looking at a SMAC of eleven members with alternates. Hoag stated she would be inclined to set up a similar membership. Wilkinson stated the larger issue is of whether they are trying determine what the community mores are, with respect to issues in which the people have diverging interests. The membership should not be loaded with a bunch of experts that are being paid by the industry. Some part of the committee ought to include community members that do not have a vested interest. (Clerk's Note: End of tape two, side A.) Skinner stated it sounds as if there is a chance for the community to make its concerns a part of the equation and clear the air on resolving the issues. It is important that the experts have input. The voting members should not have a direct vested interest in this. McShane stated that if that is the case, then people within 1,000 feet of a pit would not be voting either. Starkenburg - Kroontje stated the SMAC should be advisory, not regulatory. The SMAC is powerless to do anything but make recommendations up the chain. She was concerned about a function so it doesn't digress into site - specific issues. They should indicate that a person should not be on the SMAC if they have a pending permit or are within 1,000 feet of a pending permit. The SMAC would be a process for input. Special Natural Resources Committee, 3/10/2000, Page 17 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 Hoag stated the community should be represented. It is important that people who will be affected by the regulations have some say in the formation of them. She understood the conflict of interest issue, and no one should be given controlling interest. However, they need to be represented at the table. The end product should protect both the operators and the neighbors. She would be inclined to include a geologist and mineral extractors. Other expert members could be ex officio as needed. Nielsen stated the County is laid out in sections, not in 1,000 feet circles. He questioned the intention of including SMAC members who are within 1,000 feet of a pit. Hoag stated it isn't appropriate to make a 1,000 -foot designation. That distance was chosen in the Comprehensive Plan process as a compromise. That is not where the impact ends. The people who are within 1,000 are most affected and need to be represented, but it should not be limited to that. Nielsen stated he has always gotten along with his gravel mine neighbors. His main concern is the control of noxious weeds. Also, Whatcom County's 16 -acre gravel pit is a storage yard. The County does not care to use up a permit because they want it to be ongoing. McShane stated this item would be scheduled at the next Natural Resources Committee meeting. ADJOURN The meeting adjourned at 12:37 p.m. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Dan McShane, Committee Chair Special Natural Resources Committee, 3/10/2000, Page 18