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WHATCOM COUNTY COUNCIL
Natural Resources Committee
June 15, 1999
The meeting was called to order at 10:00 a.m. by Committee Chair Connie
Hoag in the Council Chambers, 311 Grand Avenue, Bellingham, Washington.
Also Present: Absent:
Kathy Sutter None
Tom Brown
DISCUSSION
1. UPDATE FROM THE PORTAGE BAY SHELLFISH PROTECTION DISTRICT
(AB99 -217)
Chris Woodward, Portage Bay Shellfish Protection District Committee Project
Manager, stated that she would provide an update, which she distributed to the
ommittee members. The Health Department and Conservation District (CD) would
also give updates. She introduced some of the committee members. Michael
Cochrane, Northwest Indian College, was not able to be at the meeting, so he will
not be able to update the committee on his data survey. The State Department of
Ecology (DOE) was also not able to attend because they are on emergency status
due to the Whatcom Creek explosion. The State Department of Health also could
not make the meeting. The Portage Bay Shellfish Protection District Advisory
Committee has eight members and one vacancy due to a recent resignation. The
agency representatives include the Cities of Ferndale, Lynden, and Everson, the
DOE, Lummi Nation, Nooksack Indian Tribe, the Dairy Federation, Puget Sound
Action Team, County Council, and the last meeting had a representative from
Whatcom County Planning. The federal Environmental Protection Agency (EPA) will
also begin attending meeting in July. Dave Ragsdale will be their representative.
He has been in charge of the local dairy inspections, but moved to the shellfish
program.
Natural Resources Committee, 6/15/99, Page 1
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Hoag asked about the member that dropped out. Woodward stated that Mac
Oreiro resigned. He was a citizen representative and a landowner. He was unable
to get away from work for the daytime meetings.
Woodward stated that she would review the Portage Bay proposed
classification map. The update, as of this morning, was that the classification did
show stations 11 and 12 being potentially restricted. However, stations 11, 12, and
13 are now restricted. She received notification this morning. Michael Cochrane
will have his data analysis done in July. She has a copy of his first quarter water
quality report, dated March 1999. She discussed the first few meetings that have
been held. There have been three meetings so far. The goal for the first six to
seven meetings is to bring in all the agency players to update and inform the
citizen's group of their role and how they work to improve water quality in the
Nooksack Basin, and what the group can do to support the changes. After the first
six or seven meetings, when the group has all the information that they need, they
are going to look at the changes that are to be made. It will take time for things to
improve, but in the district they are making good progress. There are good people,
and there is good cooperation. Everyone is keeping on task and on the goal. The
first meeting introduced everyone and reviewed the responsibilities. The matrix
updates are the latest, but there are no updates from County Planning, DOE, and
the County Council. This is a working document, meant to have tasks added to it.
The second meeting involved a presentation of sewage treatment plant operators.
They discussed past problems and solutions to those problems. Lynden has
improved their treatment systems by using an ultraviolet system. They are still
using chlorine as a backup. Drayton Harbor /City of Blaine will use the same
disinfecting system in the year 2000. They are meeting their permit standards.
Sampling from Lynden in the past showed extremely high counts of bacteria, at
levels of 800,000. This was what showed that there was a problem with their
disinfection unit. This new system should control the problem. Permitted discharge
should be on the average of 200 and no higher than 400. They are getting test
results below that level. Michael Cochrane is still monitoring the river. The third
meeting included a presentation of the County Health and Human Service
Department discussing the idea of designating the District as an Area of Special
Concern, which has delineated boundaries established through the public process.
Shellfish protection districts are areas of special concern, and need to be formally
delineated. The Whatcom County Planning Department also presented the Critical
Areas Ordinance (CAO) and the Manure Management Ordinance. There were over
two pages of questions that were fielded to the presenters. She distributed a copy
of the questions to Committee Member Hoag. The next meeting is July 22, and will
discuss dairy issues. The meeting scheduled for August 16 will discuss the Total
Maximum Daily Load (TMDL) study and funding for the Portage Bay Shellfish
Protection District.
Natural Resources Committee, 6/15/99, Page 2
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Regarding funding, when the group developed the tasks in objective #6,
establishing a funding district and program, they had no idea what would transpire
with the County's water resource program and flood district fees. Due to that, the
work on objective #6 has not progressed as planned, and there is much uncertainty
about the water resource program and the associated funding. The Portage Bay
Committee would like to discuss these issues with the County as soon as possible.
According to the 1999 flood free breakout, under Benefits of Coordinated Water
Resource Efforts, there is a bullet item for shellfish and groundwater protection.
The Committee requests the Council examine and report to the Committee how
much funding is available to the shellfish programs through this tax. As a grant for
the project runs only through September, 2000, monitoring, updating, and
coordination will need to continue past that date.
Hoag questioned whether the grant was renewable. Woodward stated that
she is discussing this possibility with George Boggs, Whatcom Conservation District.
The part of their grant for the implementation strategy was through the Clean
Water Fund, along with Michael Cochrane's funding. They hope it can be renewed
because it is very worthwhile. With all the water resources planning in the County,
water quality is tied to more than the pollution in the river. It is also tied to the
shellfish beds. They hope to work cooperatively, but they can't be done by
September 2000. The designated goal for re- opening of the beds is December 31,
1999, however they have to revisit that, realistically. The groups are working hard
at getting that accomplished, but they will need a backup plan.
Brown stated that it takes 30 months of successive good tests to open the
beds. He didn't understand why that date was put in. Woodward stated that, when
they were working on the Closure Response Strategy, they felt that they had to
give a date. They didn't want to make it too far in the future because they wanted
to show the Council that it is important to start working diligently.
Hoag stated that the idea was that, if the project was finished, then the
ordinance would sunset. If it wasn't, then it would be extended. That is why they
adopted a shorter date, so that the district would dissolve when the problem was
gone. There was a lot of nervousness about creating the district in the first place.
Woodward stated that so far the participation is good, except the cities of
Lynden and Ferndale treatment plants have not submitted their information. She
asked the Council to help facilitate their cooperation.
The committee concurred to send a letter to the cities.
Julie Hirsch, Data Management for Committee, stated that they are the only
agencies that do not have computerized information for their treatment
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information. This will be a problem because she can't do comprehensive data
entry.
Woodward stated that they have been scanning information into the
computer. Regarding future meetings, she requested a little more time to prepare
for any future information.
Hoag stated that she received more than six days notice.
Sutter suggested establishing a quarterly report.
Hoag stated that was discussed and decided it was too much, so they
decided on semi - annually, which is what this meeting is.
Brown stated that the next update would then be December 7, 1999.
Woodward stated that they are working diligently. They are on task with the
performance schedule that is in the implementation plan. Project management,
progress tracking, coordinating work plans, and public involvement are taking more
time than proposed. They have asked for funding from flood money or grant
money for the implementation of the shellfish plan. There may be some money
available next year. The group needs information on what money is set aside for
the Districts so they know what is available.
Brown asked about information that came out showing the levels were going
down. Woodward stated that Michael Cochrane has that information, it is in the
handouts. This is his project and he needs to explain the information. It appears
that there is improved water quality, but they have to look at the change in season,
and other changes.
Dawson asked if they need permission of the property owners when doing
tests. Woodward stated that most samples are taken from bridges and road
crossings. They don't go on private property.
Hoag stated that they would like him to come back and discuss his findings.
Julie Hirsch, Data Management for Committee, discussed the overall goals
and performance schedule for data management. They will develop a coordinated
water - monitoring plan, create a database by April 1, 2000, and prepare water
quality assessment by June of 2000. To begin on the goals, they need to give
everyone information and make themselves accessible. They have created a data
collection matrix. There is also a map of the collection sites. They intend to
coordinate with Michael Cochrane, Northwest Indian College, to post information on
the website and give updates quarterly to make them accessible.
Natural Resources Committee, 6/15/99, Page 4
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Chris Chesson, Whatcom County Health and Human Services Program
Supervisor for the On -Site Sewage Division of Environmental Health, updated the
Council on objective three, which is the control of the on -site sewage sources in the
Portage Bay Shellfish Protection District. Task 3.1 is broken into two phases. It
encompasses a formal on -site sewage system survey of the residences in the
Marietta, Rural Avenue, and Country Lane areas. They've completed that survey
and identified only six failures out of 186 sites that were surveyed, which is
significantly lower than the State average of 5 %. Of the six failures, three have
been repaired, and they are working with the other three property owners,
pursuant to the enforcement policy. Task 3.2, applying for grant funding from the
State Department of Ecology (DOE), resulted in no more available funding for this
type of a project. They did apply for the State revolving fund monies to establish a
no interest loan program. They've had interest from the other three remaining
failures for the loan funds. The County Council has approved that program, and
they will be implementing it this summer. He is working on establishing a contract
with a lending institution for loan administration services.
Hoag asked if the DOESS grant comes up every year. Chesson stated that
was a two -time opportunity. They got it for Drayton Harbor and Chuckanut Bay.
DOE doesn't see the money being available again. They tried to roll over the
money remaining from Chuckanut Bay into Portage Bay, but the option wasn't
available to them.
Hoag asked about the 186 properties surveyed, and whether they are all of
the septics in the area. Chesson stated that they are.
Chesson stated Task 3.4 is the adoption of the formal on -site sewage (OSS)
system enforcement policy. It was adopted in December of 1997, and it has been
implemented since then. Task 3.5 is the development of a County on -site sewage
system operation and maintenance program. The work plan to implement that task
was presented to the Board of Health last month and was approved with minor
modifications. They are now implementing that program. Task 3.6, distributing
maintenance OSS reminders to property owners in the upper reaches of the
Nooksack River, has been accomplished. A portion of task 3.5 is targeting the
lower regions of the Nooksack River this year.
Brown asked how they distributed the reminders in Task 3.6. Chesson stated
that they did a query of the Assessor's database, and got the parcel numbers and
addresses for the property owners within those watersheds.
Brown stated that he didn't recall getting a notice. Every homeowner in the
area is in the watershed. The North Fork encompasses everything to the Canadian
Border. Every home should have gotten one.
Natural Resources Committee, 6/15/99, Page 5
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Chesson stated that Task 3.7 is to ensure that all residences within public
sewer service areas are either connected to the public sewer or have adequate OSS
that are functioning. The status should say that the lists of sites have not been
received from Lynden, Ferndale, and Lummi. They have received the lists from
Everson and Nooksack and are updating the database. They will update the
database further as soon as they receive the remaining results.
Sutter asked about tasks 3.8 through 3.11 and their status. Woodward
stated that the DOE had the matrix, but the County has not received information
from them.
The committee concurred on sending a letter of cooperation to DOE.
Woodward asked that County Planning Department also fill in their request.
Roland Middleton, Land Use Division Manager, stated that Task 1.4 was to
hire two employees. That has been done. He requested a transfer from the
agricultural nutrient enforcement to general enforcement. They would still hold
agricultural nutrient enforcement as the highest priority. There have been
occasions when they've sent out the entire enforcement staff, due to complaints
and violations. There is still a substantial amount of farmers that are unaware of
the new regulations.
Brown asked if there is a policy in which people with solid manure have to
have it covered. Middleton stated that there are no County regulations.
Hoag stated that George Boggs, Whatcom Conservation District, could
answer that question.
Middleton stated that Task 1.6, a cooperative agreement between the
Environmental Protection Agency (EPA), DOE, and Whatcom County, is ongoing. As
the County runs into issues regarding enforcement, they are still feeling their way
through the process. What the County calls an "approved farm plan" is not what
DOE calls an "approved farm plan." Likewise, the Conservation District also has a
different interpretation of an approved farm plan.
Hoag stated that there is a difference between what the County required in
the ordinance and what DOE requires. That was clear when the County wrote the
ordinance. They wanted to make sure that someone had to comply with the
ordinance unless they had a nutrient management plan from the Conservation
District. That is not the same thing as DOE's approved farm plan. Middleton stated
that is what they are trying to sort out. They are trying to figure out what
Natural Resources Committee, 6/15/99, Page 6
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information from the Conservation District they need before they take any final
enforcement activity. The ordinance states that one has to have a nutrient plan.
Hoag stated that it doesn't say a farmer has to have one. It says that the
farmer must stay 50 feet away from ditches and streams unless there is a plan that
allows the farmer to get closer. It specifies what has to be done per the ordinance,
unless they have an approved plan that allows the farmer to get closer. Middleton
stated that he didn't know if they've seen one that specifically allows a farmer to
get closer. Many of the buffers in the plan only state that there shall be a buffer or
are away from the stream. They are very general. The Planning Department sees
the that are a problem. The language from the plan may specify that the farmer
has to be away from the stream, which the farmer could interpret to be only 6
inches.
Sutter questioned whether they need to be more specific in the management
plans. Middleton stated that the County has to get together with the Conservation
District and go over the issues.
(Clerk's Note: End of tape 1, side A.)
Hoag stated that the County, when creating the ordinance, was assured that
it would be clear. She questioned whether there are farmers out there with plans
that don't specify the buffer distance.
George Boggs, Whatcom Conservation District Coordinator, stated that they
are trying to address a number of elements. Regarding the Critical Areas Ordinance
(CAO), it provides that, within 50 feet of a non - salmonid or 100 -foot of salmonid
then there will be no agricultural activities unless there is a conservation plan
prepared or approved by the Conservation District.
Hoag asked if the conservation plan is specific on buffer size. Boggs stated
that the CD provided to the County the filter strip, which provides an explanation of
the timing of the application of the manure relative to a stated buffer, which
depends on slope of soil, type of soil, and application method. It is clear what the
buffer is. The information is provided to the County enforcement officer, including
the farmer's name and address. The enforcement officer has a list of the farmers
that can do their buffers different than the regular buffer.
Middleton stated that he would discuss that information with his enforcement
officer. He has only had the monthly update from the enforcement staff on the
issue. He will make it clear that any questions must be clarified right away. They
are not having trouble with those with the farm plans. They are having trouble with
those that they have always had problems with. They are getting the run - around
from certain farmers.
Natural Resources Committee, 6/15/99, Page 7
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Hoag asked when a plan is considered too old. Boggs stated that, if the
farmer isn't on the list that is provided to County Planning, then he does not have a
plan. If the producer is not on the list, they can call the CD and get more
information. The default regulation is the CAO. If they aren't on the list, then they
have to follow the CAO. All farmers have to follow the manure ordinance.
Middleton stated that a lot of the enforcement is sending out the correction
notices. Due process requires a correction notice on any violation.
Hoag stated that she believed that there would not be correction notices
issued, only fines. Boggs believed that it was a stop work order that was to be
issued.
Middleton stated that the Constitution requires issuance of a correction notice
on an infraction. That was made clear in Marble v. Whatcom County.
Karen Frakes, Senior Civil Deputy Prosecutor, stated that the concern in the
Marble case was regarding stop work orders. On cases where there is an
emergency public health threat, she believed that they could impose a stop work
order and then have a hearing. If it is not an emergency situation, due to the
Marble case, the County does issue a pre- deprivation hearing prior to issuing a stop
work order. As far as issuing infractions, she was not aware of any precedent that
the County has to issue correction notices. The County has done that in other
cases, hoping to correct the violation before going to court, but she didn't know of
any authority that says it is constitutionally required.
Middleton stated that he was operating on information from Randy Watts,
Senior Civil Deputy Prosecutor, who was very clear about enforcement. He is trying
to protect the liability of the County.
Hoag stated that the County is also responsible for protecting the water.
They are also liable if they don't solve the problems with the shellfish district. This
is not just a matter of liability in terms of planning and enforcement.
Middleton stated that in all but one case, the correction notice has done its
job. They've only had to issue one fine.
Hoag stated that the Council had a meeting with DOE, the Conservation
District, and the County's civil prosecutor. They talked about these very issues.
They decided to issue a fine. It is laid out in the ordinance. No enforcement
included stop work orders. Middleton stated that they discussed those issues in the
context of emergency situations, such as direct dumping into the stream or river.
They haven't had any of those situations. They are talking about people who are
Natural Resources Committee, 6/15/99, Page 8
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spraying at 40 feet, not 50 feet. He questioned whether they were supposed to fine
someone for that type of action.
Michael Knapp, Planning and Development Services Director, stated that
County Planning has been instructed by Watts to be cautious about how they
proceed. If someone were flagrantly violating a stop work order, then fines would
be received. The Health Department operates in the same way. They allow time
for a person to correct their action. If someone is missing the boat on a regulation,
then they should let him or her know what the regulation is and give them time to
correct it. They could fine someone heavily if there is a health problem. If the
County wants that approach, then they can do that. However, they were advised
by Watts to be cautious.
Hoag asked why Watts was giving instruction. He is not the Planning lawyer
or the Council's lawyer. Frakes stated that, as the tort litigator for Marble case, he
was the most familiar.
Hoag stated that they had a meeting where everyone including DOE, the
County Health Department, County Prosecutor, the Conservation District, and
County Planning agreed to issue citations. The CD sent that ordinance to all
producers. They know the ordinance.
Knapp stated that they would begin issuing fines.
Brown asked for a vote. He recalled that there was concern in past meetings
about the fact that people should be given notice. He did not believe that a
producer should be "whacked" just because they want to "whack" someone. If they
are putting something straight into the stream, that is one thing. To say that there
are minor violations and the County is going to implement a penalty on them is
outside of the cause.
Middleton stated that they haven't had an emergency situation. When the
word went out, the farms shut down. They were amazed at the compliance.
Hoag stated that she is not interested in "whacking" anyone. She fights very
hard for the farmers and wants them to be able to prosper and not have to pay
fines. She had been one of the people that was upset with DOE because of the
disparity between how they are treating the farmers and how they are treating the
cities. She was upset that what they put in the ordinance, and what they agreed to
at that meeting, is apparently not what's happening.
Knapp stated that was not correct. They are doing what was discussed at
the meeting. There may be a difference of interpretation as how to approach
individual farmers. If they see flagrant violations, then they will fine them. They
Natural Resources Committee, 6/15/99, Page 9
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haven't seen flagrant violations. There has been a great deal of cooperation by the
farmers. If there has been one instance where there has been a flagrant violation
and County Planning has not fined them, then they will follow up.
Hoag stated that the committee asked for information about how
enforcement was going, but hasn't received any information.
Knapp stated that she had. He spoke on that a couple of months ago. He
then indicated that the farmers had been very positively complying. There had
been a positive response.
Hoag stated that she wanted specific information on what has been going on,
in terms of enforcement, such as how many farms have been inspected, what has
been found, and whether the County is inspecting on a complaint- driven basis or
going out and looking for problems. Middleton stated that he had prepared that
information for this meeting. He was going through the matrix that started all of
this.
Hoag asked if Planning has put in a request to fill the vacant enforcement
position. Middleton stated that, at the end of last fall, they transferred that
enforcement person for agricultural nutrients into general enforcement. They are
going through the classification and hiring of that person.
Hoag stated that she recalled that the request was to ask to use the manure
enforcement people for regular ordinance when they were not doing manure
enforcement. Middleton stated that the reclassification that went forward was to
have one full time nutrient management position and one regular enforcement
officer. All enforcement officers and environmental staff enforce agricultural
nutrients, which is the priority enforcement activity. Jim Thompson is the
agricultural nutrient enforcement officer, but there is coverage at all times. There
was one spring day when four enforcement officers were out doing manure work.
People had to be reminded that T200 hadn't happened yet. Those people were
issued orders to correct to let them know that what they were doing was in
violation. None of them were dumping right into the stream. None were damaging
in such a way that they had to issue a stop work order or fines. There is one
person that has been ignoring the regulation, or violated in such a way that there
was damage. He was issued a fine. He has not paid that fine, and it will be moving
into collections. In addition, they have followed up on that situation, and will
continue to issue fines. In addition, they are working in conjunction with DOE. This
person is likely going to be hammered pretty hard because they are not getting into
compliance. That person was not out of compliance in such a way that it is an
environmental disaster, but they are staying right on the edge. The correction
notice states that the next time enforcement notices a violation, they will be issued
a fine.
Natural Resources Committee, 6/15/99, Page 10
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Hoag asked if there is a policy on what they issue correction notices and
what they issue fines for. Middleton stated that in general they take the
information from the Code and that meeting. From the meeting, it was clear this is
a high priority. When in doubt, they lean toward a fine or stop work order.
Hoag stated that compliance was set up for one officer for the shellfish
district, then a second was added. She questioned how it would work with only one
compliance officer again. Middleton stated that, through the budget process, they
requested a full time enforcement officer and a clerical position. This was
approved. They looked at three additional enforcement officers total, plus a clerical
staff person. Through the budget process, the additional services requests were
not approved, so they lost one enforcement position and the clerical staff position.
They only ended up with the two agricultural nutrient enforcement officers. He
came back to the Council with a request that the two agricultural nutrient
enforcement officers be allowed on regular enforcement, with the understanding
that agricultural nutrient would be the priority. However, Planning has found that
there is not a substantial amount of non - compliance. They are extremely pleased
that the dairy and beef cattle operators are staying within the Code, for the most
part. After six months of operation, they've only issued about 15 correction
notices, which is very good. They can do that in a week with other activities. The
Council approved that request. It is not just the enforcement officers who are
doing enforcement. The environmental inspectors are also trained to do the
inspection, and can issue search warrants on properties that they can't see.
Sutter asked about Task 1.6, which says that there will be a cooperative
agreement regarding respective enforcement activities. She had the idea that
there was a problem in saying who would enforce what. The County needed to
reach an agreement with DOE and EPA. Middleton stated that is being worked out
in the field with the various enforcement officers. The problem is a political
problem, and one of timing. Planning may issue a correction notice, and DOE goes
in later on same day to issue another notice or fine. The County is patrolling the
areas and responding to any complaints immediately.
Hoag asked if they are requiring people to fill out a form to file a complaint,
or just a phone call. Middleton stated that there is a citizen inquiry form that can
be filled out by staff when someone calls. The County does not give out
information on the names of the person complaining.
Hoag asked for specific numbers on farms inspected and what has been
found. Middleton stated that there are no specific numbers because they are trying
to look at the entire county, through a rotating schedule and communication with
DOE and the citizens. They are trying to look at every farm. The County is divided
into six regions and they try to hit every area every four or five days.
Natural Resources Committee, 6/15/99, Page 11
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2 Hoag asked how many complaints have been fielded. Middleton stated that it
3 has been minimal. The number of complaint calls is not tracked, and instead they
4 track the number of issues. They have had to contact a couple dozen farmers.
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6 Hoag asked about the number and potential dollar amount of penalties.
7 Middleton stated that they have issued one $400 fine, which is going to collections.
8 It was for a buffer violation.
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10 Hoag asked if there were any problems in the fall on spreading manure on
11 bare ground or corn stubble. Middleton stated that there was very little trouble.
12 They patrolled constantly. They had very good rapport with Matt Kaufman of the
13 DOE, who informs the farmers that they are in County violation, as well. They
14 worked weekends a lot of time and let people know that they are around and
15 watching.
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17 Hoag asked if they found farmers spreading on corn stubble and bare
18 ground. Middleton stated that there was only one person, who they stopped just as
19 the farmer started. That location was worked into a more frequent drive -by
20 schedule. They are also prioritizing by follow up.
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22 Hoag asked if they have done any soil testing. Middleton stated not that he
23 was aware of.
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25 Knapp stated that they were never charged with being able to do soil testing.
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27 Hoag clarified that the Conservation District volunteered to do it if needed.
28 She asked how things are looking this spring. Middleton stated that it is getting
29 busy. Enforcement on agricultural nutrient is getting busy again. The problems
30 they are finding are being corrected.
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32 Sutter stated that it seemed last fall there were a lot more green fields than
33 corn stubble.
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35 Middleton discussed Task 2.1 status. The CAO was amended, however there
36 are changes that they would like to do to strengthen the Code. They would like to
37 look at changing buffers with regard to slope. That could be a major issue. Staff is
38 currently working on preparing a proposed change in the late summer /early fall.
39 Because it is a change to Title 16, they don't have to docket it as a Title 20 change.
40 Changes include adding definitions and looking at a variety of buffers. Some of the
41 spraying is going on in steep areas and a 50 -foot buffer is meaningless.
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43 Hoag stated that 50 -foot buffers were decided upon because they felt it was
44 a compromise between farmers and the agencies. If they don't strictly enforce that
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buffer, then end up with fecals in the river, then people are going to press for
bigger buffers. It is important to enforce this so the County doesn't have to
regulate more. Middleton stated that 50 feet on flat land is different than a slope.
Hoag stated that she was talking only about flat land. She agreed with the
slope issue. There are a lot of people that would like the buffers on flat land to be
100 feet or 300 feet. She didn't want to see that much of the farmland gone, and it
isn't necessary. One of the things that they did by establishing the 50 -foot buffer
was try to show that size of a buffer could work. However, it is not going to work if
they let people put manure within that 50 feet, and they still end up with the
manure in the water. She was not interested in fining farmers, but if there are
people that aren't obeying the rules, then they need to do something about it, or it
will affect all the farmers. That is why she gets tight about enforcement. Middleton
stated that they also take it seriously, but if the person doing the monitoring comes
across a chronic violator, then there isn't anything he can do other than keep fining
the person.
Hoag stated that they could fine a person $1,000 per day. No one would like
to have that stack up.
Sherm Polinder, 670 Polinder Road, Lynden, commended Middleton on the
way he's approaching the manure ordinance. He was afraid that they may be in a
situation of overkill. The dairymen are being supervised by DOE, the County, EPA,
and the Lummi Tribe. He supported the manure ordinance, but was worried about
enforcement. Hoag's approach is overkill and annoying. Farmers are being driven
out of the area. One of the most efficient dairy man in the County is moving to
Eastern Washington because he has been harassed. Other people have been driven
out of business or are leaving for other areas. It is tiresome. If the County
continues in this manner, they will drive agriculture out of the County. What
happens next would not be pretty. He asked for moderation. Hiring another
inspector is ridiculous. There aren't that many out of compliance, according to
Middleton. They needed a year to get their grass planted. Human waste is more
dangerous than animal waste. The playing field between the cities and the farmers
is not fair. They need to work on the cities.
Hoag stated that they are working on the cities. Polinder stated that it was
inadequate. She is going to drive agriculture out of the County, if that's the way
they proceed.
Hoag stated that, if keeping manure out of the waterways is going to drive
dairying out of the County, then there is a problem. That is all she's asking.
Natural Resources Committee, 6/15/99, Page 13
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Polinder stated that there aren't that many that are not complying. Lighten
up. They haven't had that much time to adjust to grass. The people are more
honorable than she is giving them credit for.
Hoag stated that she was pleased with what has been happening, but she
wanted to know what is happening with those that aren't complying.
Polinder stated that Middleton reported there was only one major infraction.
Hoag stated that was incorrect, and Middleton reported that there was only
one fine.
Polinder stated that, if she wanted to drive agriculture out of the County,
then continue what she is doing.
(Clerk's Note: End of tape one, side B.)
Polinder stated that, for the County to spend money on two inspectors, plus
a DOE inspector and a Lummi inspector, it is overkill.
Hoag stated that she understood about the overkill, but didn't understand
about why he believed that they are driving farmer's out.
Polinder state that the conglomerate of the four agencies is making it very
discouraging.
Hoag stated that the County is not responsible for the State, federal, or
tribes. The County is responsible for cleaning up the shellfish bed. They have tried
to prepare something that addresses the problem without hurting the people that
are not causing the problem.
Polinder stated that the shellfish beds have improved. The ordinance came
on quickly. These farmers did not have much time to react. They supported it, but
they should lighten up.
Brown stated that it seemed like the grilling was very intense and aggressive.
This committee was setting a tone that they didn't agree with the way the
infractions were being handled. He was very uncomfortable because he felt that
they have been doing a good job and were handling things in a realistic manner.
He understood Polinder's concern about feeling that things were more aggressive
than what they should have been. He agreed. It was overkill on trying to get to
the bottom of some of the questions.
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Dawson agreed. As Chair of the committee, people don't want to interrupt
and pull the Chair to task, but the grilling and aggressiveness has been on more
than one occasion on different issues. She asked about the Tribe coming on private
land.
Polinder stated that they are not coming onto private land. They are driving
by. He had a cordial conversation with them. He suggested to the Lummi officer
that they check their nets. The conglomerate of the four groups is moving people
out of the County.
Sutter stated that she recalled complaints that there was too much
enforcement and too many people. They have done a good job so far, but it may
be time to do an agreement with the agencies. She would not like them to feel that
they are being unjustly hammered just because there are so many enforcement
agencies.
Polinder stated that the bottom line is that everyone wants clean water,
however he has two sons that aren't interested in doing agriculture because of the
DOE and DOH.
Hoag apologized for giving the impression that she was aggressive or grilling
staff. They worked very hard on this ordinance. She worked hard trying to ensure
that it would not hurt farmers, but would address the problem. There has been
information that one of the reasons that an inspector quit was because the
inspector could not enforce the ordinance and everything was being tied up in
paperwork. Hoag asked Middleton to clarify his problem regarding the buffers. She
tried to find out exactly how the County is doing their enforcement. She didn't
consider that grilling. She did believe that anyone in her position would be upset if
he or she found out that what was decided upon did not happen. She was very
concerned that the County will not solve the problem if they don't enforce the
ordinance, and the dairy industry is going to end up with larger buffers. She was
not interested in driving farmers out of business.
Polinder apologized for inferring that she was trying to drive farmers out of
business.
Hoag stated that they can't control what DOE and EPA do.
Polinder stated that the dairy farmers have taken a substantial hit on this
issue, particularly when it comes to Portage Bay. Any time there is an infraction of
any source, it is front page news. Any time Portage Bay tests start showing
improvement, it is third page news.
Hoag stated that information does not come from the County.
Natural Resources Committee, 6/15/99, Page 15
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Polinder stated that he is saying that is how the farmer's feel.
Dawson stated that, if there is a problem with staff leaving because of a lack
of ability to enforce, then the Council should have something in writing so that it
can be addressed. There could be another issue.
Boggs stated that fecal coliform pollution is addressed by several initiatives,
including the State Engrossed Substitute House Bill ESHB 6161 that requires
conservation plans of all dairy farms by July 31 of 2001. They have the CAO, the
manure ordinance, and a new ordinance about compensating farmers for backing
away from streams and adding additional buffers. Since June 1, 1997, there are a
number of farmers have created conservation plans. All totaled, there are a
number of farmers operating under a plan. There are presently 40 dairies that
have an ESHB 6161 plan, in which addresses the issues of nutrients capturing
holding and applying where appropriate. Of a total of 72 plans that have been
posted from June 1997 to date, they have addressed the CAO in 30 of those.
Regarding small farms and the enforcement officers, they need to remember that
the enforcement officers weren't going to scrutinize the dairies, but all small farms.
The issue wasn't a matter of two full -time equivalent (FTE's) employees to police
the dairies, but 5,000 small farmers who need to bring their activities into
compliance with the CAO.
Brown asked if the CAO has a requirement to cover manure on small farms.
Boggs stated that there is a strict setback. Water quality is another issue.
Regarding CAO, the determination was that there will be strict buffers, which are as
far as the land owner is regulated. A manure pile within the buffer is a CAO
violation because it is an agricultural activity, but a manure pile outside of the
buffer, which is running off into the stream, is a Clean Water Act violation, but not
CAO.
Sutter asked if there is an overlap between the 32 farms that have current
plans and those 40 that have ESHB 6161 plans. Boggs stated that there is a total
of 72 farms that have current plans, there is not overlap.
Sutter asked about whether they do conservation plans for beef farms.
Boggs stated that they do with the request of the producer and as required by the
regulations. There has not been that similar scrutiny, so they have not had that
level of interest. There are probably the same number of beef cows as dairy cows
in the County.
Sutter stated that they may have to collectively look at how the County can
help those people with the problems that they may be contributing. Boggs stated
that there are management practices that extend to beef cows, such as water
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quality practices. Regarding small farm planning, the CD can partner with the
County to write a grant, the CD has two people doing small farm planning, there
are 4 plans in progress, they are going to do workshops with Cattleman's group in
July. Other activities and workshops are scheduled, including public information
activities. Regarding additional financial resources, the legislature appropriated
about the same amount of money as the last biennium. The district will have
$300,000 for technical assistance and hope to do more plans. They have a model
ESHB 6161 planning process, and they are generating 1 Yz to 2 plans per month.
Each plan will have a buffer standard. Their newsletter talks about critical areas
and buffers.
Sutter asked if all 236 dairies are to have an ESHB 6161 plan. Boggs stated
that they must, by July 31, 2002.
Sutter asked if the current plans will also have to have an ESHB 6161 plan.
Boggs stated that they will be updated to an ESHB 6161 plan. There has been
cooperation by the dairy community.
Brown questioned what the acronym AU means. Boggs stated that it
designates animal units.
Boggs stated that, they have been fortunate in capturing technical
assistance. There was $400,000 from the last biennium. Of that, $300,000 has
been spent, and the balance will be exhausted by the end of this year on the
technical assistance to put in the ponds, pumps, and capture and apply
appropriately. There will also be $450,000 available to the diary farmers, who can
get 75 %, up to $25,000 of the best management practices (BMP). A part of that
component is the soil sampling and tracking of the application methods. They also
successfully captured $215,000 of federal dollars to be used on 15 dairies. They
compete with other counties. They are getting significant resources and going
forward with large and small planning.
OTHER BUSINESS
Dawson asked the committee to recommend that the Council request to have
Dave McEachran to write a response to the legal notice that was in the newspaper
regarding the Lummi Tribe's request for state -like status, as it relates to water
quality.
Sutter stated that she hesitated taking that on without looking into it further.
She questioned to whom he would respond.
Dawson stated that he would respond to the DOE.
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Sutter asked her to bring it to full Council.
Bob Vanweerdhuizen, Portage Bay Shellfish Protection District Advisory
Committee, stated that the committee has been very enjoyable. Woodward has
done a good job. The committee consists of a lot of different interests. Dairy
farmers have had fingers pointed at them and they are tired of it. The committee
heard that there was contamination in a storm sewer, which they don't normally
hear, but they should. He wanted the County Council to look at whether there were
other sources of contamination. Also, Middleton has been handling enforcement
well.
ADJOURN
The meeting adjourned at 12:05 p.m.
Jill Nixon, Minutes Transcription
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Connie Hoag, Committee Chair
Natural Resources Committee, 6/15/99, Page 18