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WHATCOM COUNTY COUNCIL
Special County Council
September 2, 1999
The meeting was called to order at 10:30 a.m. by Council Chair Marlene
Dawson in the Council Committee Room, 311 Grand Avenue, Bellingham,
Washington.
Also Present:
Kathy Sutter
Connie Hoag
Barbara Brenner
Absent:
L. Ward Nelson
Tom Brown
Robert Imhof
DISCUSSION OF THE SANDY POINT IMPROVEMENT COMPANY'S
(SPIC) WATER SYSTEM PLAN STOP WORK ORDER (AB99 -323)
Dale Peterson, Sandy Point Improvement Company (SPIC) President, 4052
Salt Spring Drive, Ferndale, introduced two other Board members, Earl Baker and
Denny Beeman. Doug Campbell, Associated Project Consultants, was also present
and is their engineer. Sandy Point is a subdivision that the County approved in the
1960's. SPIC is a combination homeowner association and water company that
serves about 1,000 Indian and non - Indian customers. The SPIC Board members
are volunteers. They are tying to provide water according to the State Department
of Health (DOH) guidelines to those who do not have it. Technically, the job is
easy. Politically, it is very hard. He was puzzled by the article in the Bellingham
Herald regarding the Lynden water situation. It seems Lynden has been using
about 50% more than their permitted water for about 10 years, and no one has
done anything about it. The State Department of Ecology (DOE) had indicated they
are trying to work it out. They are going to be allowed to continue building. On the
other hand, SPIC has had a water moratorium since 1991, with the few exceptions
of 39 hookups. They can't use their own water. He wanted to share two areas of
concern, the water system plan and the water tank project. He hoped the Council
could use its influence to help satisfy the DOH mandate.
Dawson stated she received a letter from the DOH, which she distributed.
Doug Campbell, Associated Project Consultants Owner, 1401 Astor Street,
Bellingham, stated he had been the engineer for SPIC since 1995. He was there to
outline what they've been doing to make improvements on the water system over
the last few years. They would provide service to potentially 1,450 units.
Presently, the water system is being managed and operated by a satellite
management agency. There are between 600 -800 service meters. He wanted to
explain how the service is provided, where to bottlenecks occur, and provide an
update on the approvals they have to build additional water storage facilities. He
provided an outline to the Council members (on file).
Special County Council Meeting, 9/2/99, Page 1
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In 1991, there was a moratorium on building at Sandy Point. The original
water system plan was approved about 10 years prior to that moratorium. Since
that time, laws have changed. In 1995, the SPIC submitted to the DOH a request
for a water system plan approval. That is the first step in a new or expanding
water system plan. That plan was reviewed by the DOH. Comments came back
two years later, in 1997. There were about 50 items the DOH had concerns about.
There was a response submitted that same year. It has now been almost two years
from that date, and they have still not officially heard that the water system plan
has been approved. That is not usual. Usually, the timeline is fairly prompt.
Dawson stated the County health officials have told her that it takes about
three weeks for a class B approval. Campbell stated this is a class A, since they are
serving 1,000 - 1,450 units.
Brenner questioned the average length of time for approval or rejection of a
class A request. Campbell stated there is no minimum time in which the DOH has
to respond. They typically get back to them within two months with the first round
of questions or concerns. After that, approval comes within another two months.
Approval typically comes within 4 -5 months.
Kelli Linville, State Representative 42nd District, questioned what they have
discussed unofficially with the DOH. Campbell stated he spoke with John Thielmann
at DOH several times over the last four years. He understood Thielmann felt
comfortable with the proposed water system plan technically. He was assured that
the plan will be approved with some conditions. Technically, there are some things
that have to be followed up on approval. Thielmann hadn't committed to a time,
but there are no defects with the plan as submitted.
Linville questioned whether Thielmann ever indicated in their conversations
that there was a procedural concern or whether the DOH would look at how this fit
into the water negotiation. Campbell stated they mainly talked about the
engineering. He had not been involved in the negotiations and had no knowledge
of whether the system plan was included in the negotiation process. He was
looking strictly at the Washington Administrative Code (WAC) and what the DOH
should be doing to approve a system plan. If there are deficiencies other than
those noted in 1995 or up through 1997, then they have been resolved. There are
many alternatives listed in the plan for supply and source. None of the suggested
options have ever been denied or refused at this point. Further, SPIC chose one of
the options in that water system plan and proceeded to do two things: 1. Secure
federal funds for a federal loan through the DOH revolving loan program to pay for
those improvements, and 2. Applied and received a conditional use permit (CUP)
for the improvements. SPIC is operating on the basis the plan, as submitted, will
be approved.
Dawson stated Roy Atwood, Aide to Representative Jack Metcalf, and Council
Member Connie Hoag are present.
Campbell explained the service boundary for the water system plan. Water
system plans are a comprehensive plan. The service area is significantly the same
as was in the old 1983 plan. The only difference is that the DOH prefers a
parcelization approach to service boundaries in lieu of an imaginary line from the
Special County Council Meeting, 9/2/99, Page 2
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center of a road. They've added parcels of property that abut the water main, and
plan to service those parcels. There is no more distinction from the center of the
road.
Hoag questioned one parcel that was included that does not abut the service
line. Campbell stated it was included because there are services in that area. There
has been an expansion of building units in that area. They also look at how the
service area is developing or growing, and project that over the 20 -year period, this
area will include housing in the future. Likewise, on Red River Road the number of
houses using the water system on the Red River Road has doubled in the last two
years. They expanded on that criteria as well.
Hoag asked why they did not include the area east of Neptune Heights.
Campbell stated there are no services in the area. There are no homes they have
left un- serviced.
Dawson stated she believed the tribe has it zoned forestry.
Campbell stated they didn't include vast areas of undeveloped property.
They tried to keep it in the urban mold. From the 1983 map, there are many
services in those areas that are trust lands and are being served when they are
outside the boundary. They tried to clean up the new map and include all service
areas.
Brenner asked if the service area complements what the County has adopted
as what will be available for platting, and also compatible with the Lummi zoning.
Campbell stated the County recently looked at zoning issues on the reservation as a
whole. He believed the system is consistent with what is happening now. They
have not heard from the Tribe about whether or not they want it to be bigger or
smaller. This is a snapshot from 1997. The Coordinated Water System Plan, which
was submitted to DOH in 1995 and was rejected, also has some basis on the terms
of any water association boundary. Recently, there was a call from the County to
all water associations to submit their boundaries so the Coordinated Water System
Plan could be completed. They have not heard from that submittal that the plan
was not consistent.
Brenner questioned whether they send copies of their submittals to the
Lummis. Campbell stated the only notice that is required is notice to the people
they are serving. They are serving trust lands. He believed that, through the SPIC
newsletter, adequate information has been provided to the folks that are being
served.
A citizen stated copies have been provided through the CUP hearing.
Linville asked about whether they are looking for the service area to be
approved by the DOH. Campbell stated this is the boundary that is integrated into
the water system plan, and they are expecting it to be approved. To date, it is not
approved. They have not heard from the DOH about when they will approve the
plan. When the first review came back from the DOH, there were no issues about
the boundary.
Special County Council Meeting, 9/2/99, Page 3
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Dawson stated getting approval is important so the Association can use their
water right. They can't use their water right until they get a system approved.
Campbell stated DOH doesn't administer water rights. DOE administers water
rights. A water system plan in place provides a better standing to use the water
right they have now, or to apply for additional water rights. This water system plan
proposes to bring up to standard the number of residents that have platted lots of
record or parcels. Proposals are to bring those parcels into compliance and go
beyond that in terms of the service expected in the next 20 years. There is
adequate water for a certain number of residents. The water plan assumes that
additional water rights will be required to provide future service. In order to move
forward with the DOE, the water system plan is an integral part of that.
Dawson stated the reason for the moratorium is because the system hasn't
been approved.
Campbell stated that improvements were suggested in 1983 to bring the
system into compliance. Not all the improvements were done. As a result of
looking at the plan, there are deficiencies in terms of fire flow and pressure. 30%
of the areas at Sandy Point Heights is inadequately served due to the pressure
shortages. Each residence within a water system boundary has to have a minimum
of 30 lbs. per square inch (psi) at the street front. There are also areas at Neptune
Heights that have inadequate pressure. There are about 207 units that are not
being served properly regarding pressure.
Brenner asked the difference between the fire flow and pressure. Campbell
stated the DOH does not administer regulations dealing with fire flow. DOH often
asks them to coordinate those improvements to meet the requirements of Whatcom
County regarding fire flow. The Fire Marshall is ultimately responsible for fire
protection in this area. The amount, volume, and duration of fire flow is subjective
a bit, but is at the Fire Marshall's request to meet a certain demand. The
Coordinated Water System Plan has suggested fire flow requirements, and so does
the Uniform Fire Code. In this area, it is highly urbanized for a remote area. They
are small lots and high density. It is anticipated the fire flow should be between
750 -1,000 gallons per minute, lasting for an hour or two. Sandy Point Heights is
served by a 50,000 gallon tank, which is not adequate for fire protection. One of
the improvements they are suggesting will remedy that problem.
Brenner asked about the fire flow amount a 50,000 gallon tank would
provide. Campbell stated that, if they pull out a 1,000 gallons per minute out of
the tank, it would last .83 hours, or just under an hour. Also, there are hydraulic
issues. In this area, there is a pump station that pulls water from that tank and
provides service to Lake Terrell Road. If that pump station drew water out for a
fire, it would empty the tank and leave Sandy Point Heights without water. They
would leave 600 people without service because there isn't adequate volume.
On the west side of the service area, Neptune Heights has 84 units that are
being served by a pressure tank system with a two -horse motor. There is not
adequate fire flow or fire protection in that area. If they add those units up, then
there are about 500 units that don't have adequate fire protection at this time.
Special County Council Meeting, 9/2/99, Page 4
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There is presently a 200,000 gallon tank that serves by gravity the Sandy
Point Shores area. They are proposing to provide service to the other areas by
gravity to get away from pumping.
The SPIC serves 619 residents. There are an additional 421 lots of record
that are requesting service. They are also proposing in 18 -20 years to add another
160 fee lots and 250 trust land connections. That is a total of 1,450 services.
This water system plan proposed a new tank to provide gravity fire
protection in a location to the northeast of the Terrell Lake Road, which is off the
reservation boundary. That tank has a CUP. To date, they've installed a
transmission line from the site of the tank to the intersection of Lake Terrell Road
and Slater Road. To date, they've spent approximately $154,000. They are
projecting to spend another $139,000 for the tank and tank site preparation. This
would total $293,000. That storage tank improvement will allow them to provide
better service to the eastern portion of the boundary. It will also allow them to
take come of the pumps out of the system that they are now relying on, including
the booster station on Lake Terrell Road, if that is acceptable. DOH made
comments about this making sense to provide better fire flow and better pressure.
Brenner asked why the stop work order was issued. Campbell stated he
would leave that issue for the Board to discuss. They proceeded to do this
improvement, even though submittals were sent into the DOH, without the DOH
approval. They did that on the basis of urgencies and within the boundaries of the
CUP. John Thielmann recently put a stop work order on this project and asked for
11 or 12 items to be addressed. Item #1 is regarding the requirement to ask the
Lummi Nation for their review of the improvement, before they can continue the
work.
Brenner questioned whether they are going to see what those items are.
Dawson stated she would provide that information.
Doug Ericksen, State Representative 42nd District, questioned who has the
authority to approve or deny the water system plan. Campbell stated the State
DOH has that authority.
Ericksen questioned whether they need to consult with other agencies before
they can offer approval. Campbell stated it is often useful to have other agencies
respond, but there are no other agencies, other than DOH, that are responsible. To
his knowledge, the Lummi Nation has had a copy of this plan for years for review.
Ericksen questioned whether the DOH could approve this by themselves and
without having the negotiations with the other agencies. Campbell stated that is
what he understood the law to say.
Peterson stated there is another aspect of urgency which is the right -of -way
improvement, scheduled on Lake Terrell Road for this year. It didn't happen, but
Campbell was told they should get the water transmission line in before they do
their construction. Peterson stated they had this window of time they thought the
negotiations would be over. After one year, the negotiations were to be over, but it
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has gone on. Also, the team leader for DOE was leaving and DOE wanted things
wrapped up before he left. It was fairly certain that was going to happen. They
were trying to anticipate when the approval would happen. The question is why
they received a stop work order. To date, they haven't figured out if it was political
or technical. On the technical side, Campbell indicated there were conditions the
DOH wanted satisfied before they went forward. Campbell thought he had verbal
approval. Thielmann told Campbell that he planned to approve the plan, so they
went ahead. Then suddenly the stop work order came through. They don't know if
it is political. DOH mandates them to have certain deficiencies corrected in the
water system, which they are trying to correct. However, they are not being
allowed to correct the problem.
Sutter stated this is an issue of public health and safety. She questioned the
avenue of appeal for the stop work order or the delay in approval of the water
system plan. She questioned whether the committee could appeal the stop work
order by DOH, based on public health and safety issues.
Karen Frakes, Senior Civil Deputy Prosecutor, stated she would look into that
possibility.
Peterson stated SPIC has submitted their answer to question #1 on the letter
regarding the stop work order. Campbell is preparing the response to the other
items. They are hoping this will satisfy the DOH and they will get approval. It is
very politically loaded. They have tried to explain they have cooperated with the
Lummi Nation and have shared the information with them. They have known all
along what was going on. They are protecting their property as well.
Linville questioned whether the plan was brought forward as a way to solve
the public health and safety issues to the negotiations. Peterson stated their
attorney, Charlie Roe, keeps everyone informed. When they went forward with the
CUP hearing, they were asked to withdraw the request until the negotiations were
complete. That was a year ago. However, they chose not to withdraw because of
the window of opportunity they had to meet. There weren't any consequences for
not withdrawing. Mr. Johnson, representing the Lummi Nation, was there. They
had a chance to appeal and did not.
Dawson asked if the Tribe had received any approval during negotiations for
anything they want to do. Peterson stated they probably have not, because they
improperly hooked into the SPIC water system. SPIC tried to stop them, but were
told to let them on. The Lummi's did apply for a permit to extend the SPIC water
line, without the SPIC knowledge.
(Clerk's Note: End of tape one, side A.)
Peterson continued to state that the Lummis have twice asked SPIC for more
water. One request was in a formal letter along Sucia. SPIC knows the Lummis
have water needs and the SPIC plan tries to address that.
Hoag asked if the item regarding the negotiations was the only item that is
still not completed. She also questioned whether the documents would be ready for
approval if they chose to remove the first item that is required. Peterson stated
Special County Council Meeting, 9/2/99, Page 6
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they would be. That first item also says they should coordinate with a system -wide
reservation water system, but there is no such thing. The Department of
Reclamation in Denver was to do a design, however it has nothing to do with what
SPIC is doing with this plan. They have a pressure and volume deficiency that
needs to be corrected, regardless of whether there is outside water. A reservation -
wide system would simply have lines connecting the existing systems to supply
water where there is not enough. The tank they are proposing would fit well into
that plan.
Hoag asked about the 1991 building moratorium. Peterson stated it was
imposed by the State DOH, however DOE had more to do with it. The Lummi's
objected to more building on fee land on Sandy Point and within the reservation. It
was in response to that, he believed, that the DOH and DOE placed the
moratorium.
Hoag stated there has to be some basis for the moratorium.
Dawson stated they've used the water system plan.
Peterson stated they had a permit for 143 -acre feet. To this date, they are
only using 120 -acre feet. They are not even using the maximum amount of their
water. Essentially, they were cut off from using water that was rightfully theirs.
That is another issue that is in this water system plan.
Dawson stated she believed it was a flaw with the system plan.
Ericksen asked if there was anything that would require the DOH to wait until
the negotiations are complete or to coordinate this with the ongoing negotiations.
He questioned whether that was a part of their mandate or in the statute.
Campbell stated he hadn't been involved in the negotiations, so he did not know.
He read the State law, WAC 246, and there is nothing there that says negotiations
outside the review of a water system plan take precedence.
Ericksen asked about the source of the understanding referenced in the letter
from the DOH regarding the plan be approved with the negotiations.
Dawson stated she spoke with DOH and asked if they have anything in
writing to this effect. They said they did not. It was something Charlie Roe had
said.
Ericksen says it seemed that was the position of the DOH that they would not
go forward with the plan until the negotiations are done.
Dawson stated there was never anything in writing to that effect.
Ericksen questioned whether that would be a policy of the DOH.
Dawson stated it seemed as if they developed it as a requirement.
Special County Council Meeting, 9/2/99, Page 7
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Brenner stated the Council should write a letter requesting information about
where DOH got that understanding. DOH would have to respond to the Council in
writing.
Linville stated she had known about this issue for quite a while. Initially,
when DOH tentatively approved the water system plan, there was a discrepancy
betweeen DOH and DOE regarding the availability of water. There are a lot of
paper rights have not been fully examined. She wanted to see a decision at the
State level, based on the information that is available, the health and safety issue.
She asked if there would be a dispute with the agencies or the tribes in going ahead
with the project, if these groups reviewed the plan.
Peterson stated they used 258 -acre feet as early as 1986. Right now, they
are using 143. As soon as they installed water meters, the use dropped to 116.
The water was there.
Linville stated it was possible someone else was using the water. Peterson
stated that was possible. Regarding her other question, the water negotiating team
does not want them to do anything. There are two attorneys that represent the fee
landowners, Charlie Roe and Tim Slater, but they are really a part of the State
team. Assistant Attorney General Tom McDonald has been the acting team leader.
He's been aware all along. SPIC never does anything without their knowledge.
Linville suggested they make their case before the group and know for sure.
Campbell stated he was responsible for making application for this second
round of revolving loans through the DOH, which is money coming through the EPA.
They had many meetings with the Board and the DOH, including John Thielmann,
on the basis they would get $300,000 to $400,000 of that loan money to do this
project. There was never any mention of coordination or review by this team. He
assumed the project would proceed. Because of timing and last minute conditions
applied to the loan, Sandy Point decided to drop out of the loan program. At no
time was there ever any discussion that the merits of the project didn't deserve
some attention.
Brenner asked if the County requires State agency agreement through the
County CUP process. Campbell stated they do not. The County Code is specific
about what they have to do to meet the requirements. In particular, they have to
notify people within 300 feet of this tank. Those are the affected people from the
tank project. There are other issues that were remote from the fundamental
principal of why a conditional use should be granted. The Hearing Examiner
granted that, and there were no appeals to the CUP.
Brenner asked if some of those notified were the Lummi's. Campbell stated
they were not by the 300 -foot rule, but they knew about it because it was a public
notice in the newspaper. There was a lot of discussion remote to the fundamental
issue of conditional use.
Dawson stated the Tribe was present at the hearing.
Special County Council Meeting, 9/2/99, Page 8
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Peterson stated Mr. Johnson was at both sessions of the conditional use
hearings.
Jeff Monsen, Public Works Director, stated he had been participating in the
negotiations for quite some time. It is generally accepted that there is a desire of
all parties, in the context of the negotiations, that ultimately there be a single water
system that comes from a joint, coordinated effort. However, it is also very clear in
the negotiations that there was never any suggestion that an individual couldn't go
through a lawful process and proceed regardless of the negotiations. Negotiations
don't have the standing to change a lawful position.
Linville questioned whether there were other projects that were approved
during the course of the negotiations that were in the purview of the same area.
Monsen stated that whenever someone intended to pursue a water - related activity,
it was put on the table for the interested parties, but none of the activities were
ever negotiated. It was put on the table as notice only, so that interested parties
could discuss it.
Brenner questioned whether the Sunset project was a part of what the
negotiating team is doing. Monsen stated it was not.
Brenner questioned how it was different from this request. Monsen stated
this project came to the table in the form of notification, with the request to ensure
the piece fit together with the rest, but that was it. The topic or scope has not been
on the negotiating table.
Brenner questioned whether it was unusual that this condition was asked to
go through the negotiating team. Monsen stated it was not unusual because State
health has been part of the team on the negotiations. It is not unusual to suggest
coordination. It is unusual to use it as a condition.
Dawson stated it was unusual to have a stop -work order based on that
condition.
Brenner questioned whether the administration had a position on this
project. Monsen stated they've issued encroachment permits and talked with them
about whether or not to franchise. The Public Works Department had granted the
appropriate approvals. It's a lawful process they follow through. They didn't see a
basis to deny or see a reason that it would be outside the ability to accomplish,
within the context of the negotiations.
Sutter stated she believed the negotiations regarded the tribal water rights.
Monsen stated that was not correct. The purpose of the negotiations is to settle the
dispute about use of water on the reservation. They have expanded to the
potential import of water through Bellingham's water right. The negotiations deal
with 'the big picture' and not system elements.
Linville questioned whether the project would have an opportunity of being
coordinated within the entire project. Monsen stated it is a possibility, but they are
a long way away from the idea of a comprehensive water system plan because they
don't have the philosophical issues settled.
Special County Council Meeting, 9/2/99, Page 9
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Linville asked about the effect on the overall system if this plan were
approved. Monsen stated that, of what he knew of the project, it seemed to be a
reasonable project that can be incorporated into any kind of a system in the future.
Linville stated the public's questions include when they will get water and fire
protection, and if they are imposing on anyone's rights if they go forward with this
project. Those are the questions she needed to ask. Campbell stated he had been
doing water system design reviews for 20 years. There are no 'red herrings' in this
water system plan or any secret agenda. They are trying to provide service in the
most cost effective and easiest manner possible. The Fire Marshall will tell them
that a gravity system far outpaces a pump system any day. The system has been
hacked together over the years. This system is an improvement. It provides an
improvement in safety on an order from a magnitude of two to a magnitude ten.
Peterson stated there are two issues. One issue is regarding outside water,
which is what the negotiations are all about. The water tank is about level of
service and has nothing to do with additional water. That is why the negotiation
team really has no business dealing with that aspect. The new project will, at the
request of the Fire Marshall, include additional fire hydrants along the new water
line.
Ericksen asked if this was a water allocation project or a water delivery
project. Campbell stated they are trying to get up to the level of service and
allocation based on their water right. These delays might result in not even using
what they are allocated to date. He needed an additional 128 -acre feed to provide
full service for the 20 -year plan. The source of the water is a 'big picture' item that
doesn't have anything to do with the discussion at this meeting. They are not
asking for allocation of more water, they are trying to get up to the standard that
will allow a reasonable level of service. They are not asking for more water.
Warner Webb, County Fire Marshall, stated a pump system can result in a
loss of service to the community if the power goes out. The proposed system is
more beneficial in terms of fire suppression to the people in the area and also the
outlying area. The reliability factor is large.
Brenner questioned whether he agreed that they don't meet fire flow
requirements. Webb stated he did agree. For current day standards, they don't
meet it. They probably don't even meet the standards when the land was originally
platted. When they add more hook -ups and services, the calculations are different
these days.
Dawson asked to hear from the Lummi Representative, Skip Johnson.
Skip Johnson, Lummi Nation, stated he received a copy of a letter that
seemed to blame the Lummi's for the DOH decision. He made it clear the Lummi
Tribe did not ask them to make this decision. The Tribe is blamed for the DOH
decision to issue the stop -work order.
Dawson asked if he believed the negotiations are to blame. Johnson stated
he would not assign blame to anyone. To the extent that Mr. Peterson's letter
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implied the Lummi's asked the DOH to issue the stop -work order, they didn't. The
negotiations are about water availability generally on the reservation. Everyone
agrees that there is not enough water to go around. That is an issue throughout
the reservation. Since people are speculating about why the negotiations were
brought into this, he guessed the DOH was concerned that if Sandy Point did
something separate from the negotiations, it might jeopardize the negotiations for
the rest of the folks who are involved. Not all involved are Sandy Point residents.
Sutter asked if it would threaten the negotiations. Johnson stated it has the
potential to.
Brenner questioned whether it threatened the negotiations when Sunset's
plan went through. Johnson stated it was discussed. They did respond to the CUP,
appeared at the hearing, and opposed it. The CUP was issued, and they didn't
appeal that because the negotiations were ongoing and there was discussion about
delaying the project in the context of the negotiations. That was apparently done.
They are close to the end, one way or the other.
Brenner asked how soon he foresaw the negotiations coming to a conclusion.
Johnson stated the State team sent out a letter at the end of July which included
their bottom -line conditions. The Tribe and federal team put together a response to
those, which the State team hadn't responded to yet. Part of the reason the State
team hadn't responded was because the SPIC hadn't responded to the State team.
The ball is in their court at this point.
Linville stated discussion regarding the negotiations, if they don't have direct
bearing on this project, was not productive. She asked if this project could be a
basis for a future coordinated water plan, in the view of the Tribe. Johnson stated
there are issues about it. One of the issues is that it is either too big or too small to
do the job that needs to be done. This isn't the project to solve the problem in that
area of the reservation. It will solve the problem for some part of it. The question
is whether it will fit into a bigger solution. The Tribe also has some question about
areas included as service areas in the plan. A lot of that is Tribal land. The Tribe
requested of Sandy Point to put some of the tribal water through the Sandy Point
system to deliver it to the tribal members. SPIC's response was to talk about it
during the negotiations, but they've never gotten to negotiations. Everyone agrees
there is insufficient pressure and things need to be done to fix that problem.
Ericksen asked if the Tribe sees the DOH's non - permittal of the stop -work
order for this project as a water allocation issue or a water delivery issue. Johnson
stated it is a part of the allocation issue, because the question is where the water
will come from that goes into the tank.
Sutter asked where the water will come from. Johnson stated it will come
out of the ground, which is why they are having the negotiations.
Campbell stated it comes out of the Sandy Point well, which is permitted.
Sutter stated the permit is for the amount of water that would be required
for this.
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Campbell stated they are not taking any more, or even using their allocation.
Sandy Point is having a meeting with all the water systems on September 7, when
they plan to respond to the letter. The letter Mr. Johnson referred to is a State
proposal that SPIC doesn't really like, however they are going to compromise a lot.
The federal representative, Bob Anderson, has a lot of different ideas about all of
this, which reflects the Lummi's view. They are a long way apart on that view.
Johnson stated there is a dispute about whether the State has the authority
to issue permits for as much water as they have issued on the reservation, to non -
tribal members. The Tribal position is that they've issued a disproportionate
amount of the groundwater to non - Indian people. When SPIC says they have a
permit from the State for 143 -acre feet per year, they do. That is why the dispute
exists. That is more than a proportionate share of the water in that area. That is
how it all ties together and why allocation and service are tied together.
Hoag asked how the plan affects the Tribe's water delivery within trust lands
that are included in this system, if this system is approved. Johnson stated it
legally does not affect the area. They are going to serve the area. It depends on
what weight the decision to include those areas in the SPIC boundaries is given by
other agencies.
Hoag asked if there is anything that prevents the Tribe from supplying water
to tribal people on trust lands if they are included in the service area for the SPIC.
Johnson stated they don't think so, legally. They might claim it is theirs
exclusively.
Hoag asked for SPIC's opinion on that question. Peterson stated it is only
logical to have one water system, otherwise there will be two water lines running
down an area. They have heard the argument that they are providing water to
trust lands, and the Lummis don't want that. They are not going to force anyone to
take water. However, when they are trying to extend the water line and add hook-
ups without their permission, it tells him they want their water.
Hoag questioned whether SPIC would object to the Tribe supplying water to
the people within that service area. Peterson stated they probably would. The
Lummis drilled a well within 100 feet of theirs. SPIC believes there is a problem
with it. The Lummis want to tie into their water line to supply their people. There
would be two purveyors in charge of the sources using one water line. They have
trouble with that and are pretty sure the DOH would have trouble with that also.
Linville stated this is a supply system. She asked if this would be an issue if
they separate out the dispute about the amount of water or if the negotiation
results in the City of Bellingham or someone else supplying the necessary water to
meet the needs of the area. Johnson stated they would throw away most of this if
they built the system that the negotiations contemplate.
Linville stated the negotiation deals with the water supply issue.
Dennis Beeman, 4431 Salt Spring Drive, Ferndale, stated he was a SPIC
Board Member. The negotiations have to do with water. They are talking about a
water system plan. Right now the negotiations are talking about a treatment plant
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on the reservation to provide a certain amount of water to the Tribe and a certain
amount of water to non - tribal members. Once that water is produced, it would go
into the SPIC water system and it would be distributed to the SPIC members. If
Tribal members asked to be hooked into the system, they would do that. They
would not deny anyone water. However, they will keep their water system and
provide water to members or to people who apply for that water. They will not be a
part of a total Tribal water system.
Hoag stated her question was whether there would be anything preventing
the Tribe from running their own water lines in within the SPIC boundaries if they
so chose to service tribal members. Beeman stated SPIC members could not stop
them. These are public rights -of way.
Brenner stated this issue sounds like the Lummi Tribe and the SPIC each
don't want the other to provide each others' water. She asked if there was any
chance to coordinate a system in which both are in charge and each takes care of
their own people.
Dawson stated this is part of the negotiation.
Brenner stated she wanted to make sure a coordinated system works so
everyone who needs water can get it. In the end, she questioned whether there
could be oversight by both the Lummi's and the SPIC. Beeman stated they would
be allocated a certain amount of water and would be directed into their tank. SPIC
would then distribute that water to its members.
Dawson stated the SPIC would like the federal representatives, the State,
and the County to politically pressure the DOH to lift the stop -work order.
Peterson stated the ideal plan in the negotiations is that they all become
customer's of Bellingham water, even though the Lummi's have the treatment plant
and federal money would be used to build the treatment plant. There would be an
arrangement and an oversight at the State level for distribution of all the water.
Sutter stated she was concerned about waiting for the long -term solution.
They cannot leave people out there unprotected for that long. There is an
immediate problem that needs to be solved. If Sandy Point did not have this plan,
she questioned what they would do. There needs to be a more immediate solution
than what the negotiations are going to provide. From what she heard from the
engineers, what is being proposed would not be incompatible or could be made
compatible with a larger plan. She wanted the County Council to pursue whatever
avenues possible to get the plan approved to get the water system up -to -date.
Brenner asked for a legal opinion on whether the County could enter into an
appeal.
Karen Frakes, Senior Civil Deputy Prosecutor, stated she couldn't imagine the
County having a standing to appeal a permit like that.
Sutter stated there has to be something they could do.
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Dawson stated they could write a letter.
Brenner asked if the County has any legal standing at all. Frakes stated they
are not a party to the proceedings. There may be some cause of action.
Sutter suggested they find out what they could do, and appeal to the State
representatives to help get together to solve the problem.
Earl Baker, 4175 Sucia Drive, Ferndale, stated health and public safety are
the paramount issues. They need to set the political aspect aside and get down to
the case of the health and safety of the Sandy Point citizens. He received a report
from the Sandy Point maintenance person who took readings in Sandy Point.
(Clerk's Note: End of tape one, side 8.)
Baker continued to state the recent pressure reading at Sandy Point was 19-
21 psi, which is less than the minimum for efficiency and safety. Also, in the area
of Neptune Circle, there are no fire hydrants and 84 families that are to be
protected by the pump process. 494 families have the potential of being impacted
during a serious fire situation. There is a deeply wooded area, a lot of construction
in the area, and dry summer times.
Brenner asked if anyone had heard any technical or practical arguments
against the proposed water plan. Baker stated he had not heard any arguments
why this new tank would not work or why it could not be tied into any future
program.
Johnson stated the analysis of the area says the tank should be at the
highest location. This isn't. It could maybe serve some supplemental purpose after
the entire system was built.
Brenner asked if it would be a problem that it wasn't at the highest place it
could be. Webb stated, for what they are looking at, the system will provide
adequate protection to the area that is within the existing Sandy Point improvement
area. Water systems are sometimes made up of large lakes or multiple tanks. If
they look at any city in Washington State that uses a tank system only, there are
multiple systems from which the water comes, unless they have one large reservoir
lake. This tank could certainly be included in the larger scenario. It hasn't been
identified where the higher elevation may be.
Brenner asked if Webb, as the Fire Marshall, was concerned about the height
where it is proposed currently being any kind of impediment to adequate fire flow
or pressure to serve the current needs. Webb stated they identified the
inadequacies that exist. This proposal will solve the problems for the Sandy Point
area.
Peterson stated he is also an engineer. If they ever get the water system
plan approved, it won't be too long before they have to revise it again. That will
identify any other deficiencies. There is one mile of undersized line in Sandy Point
Shores they have identified. As water use increases, it may be necessary to change
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that line. They are planning a program to replace that. The beauty of having a
plan is to identify deficiencies.
Campbell stated the merits of the tank were well explored during the CUP
process. Technically, it is an accurate location for the tank. They have to put some
pressure reducers at the bottom of the hill because in one respect they are too
high. It is important to know they don't control the property that is higher than this
point. The property Johnson referred to is on the reservation. Unfortunately, he
couldn't recommend they attempt to acquire property to the reservation and
convert it to fee land so it can be used for the purpose of a storage tank. It would
not be feasible. The bottom line is they don't control the land at the higher
elevation. They do control the land that is for the benefit of the association. The
land, at the elevation it is, will be adequate to supply the pressure.
Hoag asked if the meeting was advertised as a public meeting of the County
Council.
Dawson stated that it was.
Hoag suggested the Council members present go over a proposed letter to be
sent to the DOH. She didn't approve of some of the action items, and proposed
alternate language that included:
• Strike proposed action item #1
• Action item #2 would become action item #1, and would include language
changes, "...supports bringing th-+s the Sandy Point Improvement
Company water system up to the standards recognized by its ewn ee
the Whatcom County Code as well as..."
• A new action item #2 would be, "The moratorium that is in place does not
improve the situation to resolve these issues."
• In action item #3, the acronym "WSP's" needs to be in parenthesis.
• Action item #6 would include the language, "...unincorporated areas of
Whatcom County."
• An additional item would be added, "Therefore, the Whatcom County
Council requests that the State Department of Health approve the water
system plan for the Sandy Point Improvement Company water system so
that we can resolve the important health and safety issues in that area."
Dawson suggested they vote on sending a letter to the DOH addressing the
concerns. They can work on the specifics of the letter away from the dais.
Brenner stated she would rather do it now.
Dawson stated they can't discuss the specifics of the letter on tape.
Hoag stated they can discuss the specifics on tape. It was not appropriate to
do it off the tape. The Council doesn't meet again until September 21, so it is okay
to approve a letter.
Dawson stated the letter becomes public. The process of writing the letter is
not public.
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Sutter stated someone needs to draft the letter and get it approved.
Hoag stated they can do that. They need to make sure there is a majority
that agrees to that letter.
Dawson moved to draft a letter.
Sutter stated she would approve writing a letter.
Hoag stated she wanted the letter sent subject to the approval of the four
Council members who were present at this meeting.
Motion carried unanimously.
ADJOURN
The meeting adjourned at 12:15 p.m.
Jill Nixon, Minutes Transcription
These minutes were approved by Council on November 9, 1999.
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Marlene Dawson, Council Chair
Special County Council Meeting, 9/2/99, Page 16